House of Lords (Hereditary Peers) Bill

Lord Falconer of Thoroton Excerpts

2nd reading
Wednesday 11th December 2024 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I am honoured to follow a characteristically measured and thoughtful speech from the noble Earl, Lord Kinnoull. With all of us, I look forward with genuine expectation to the maiden speech of the noble Lord, Lord Brady of Altrincham, and with real sadness I await the valedictory speech of my noble friend Lady Quin, who has made a substantial contribution to Parliament over many years. She will be missed.

The issue in this debate is not whether the remaining 88 hereditaries currently in your Lordships’ House have made a worthwhile contribution to this House; they have. They have our genuine respect and affection and therefore their leaving will be a source of sadness. The issue is whether the 796 families in this country with a right to a hereditary peerage should continue to have exclusive access to 10% of the places in the second Chamber of our country’s legislature. The answer is no.

The principle is no longer defended, not even by those who oppose the Bill. Instead, other grounds of opposition are advanced. First, some, including the noble Lord, Lord Strathclyde, who speaks after me, oppose it because it would lead, he says, to a wholly appointed House. This argument necessarily seeks the continuation of the by-election process. This is the equivalent of a subset of a closed club electing Members of the legislature—with the possible distinction that clubs such as the Garrick have a more progressive policy towards women than the hereditaries. If it comes to a choice between the appointer being the hereditaries or the democratically legitimate Prime Minister, I prefer the Prime Minister.

Secondly, from the opposite end of the scale, come the Conservatives who say that kindness and the good working of this House favour abolishing the by-elections and letting the hereditary principle wither over time. It would, happily because of our personal affection for the 88 but unhappily from the point of view of sensible constitutional change, take a very long time for the withering to occur—47 years for the last to go, on average life expectancies. After 20 years, a little more than half would have gone.

The 88 include six Deputy Speakers and 24 of the 88 have Front-Bench experience. We have heard from the excellent Convenor of the Cross Benches, who is also hereditary. The removal of the 88 would reduce the size of the House from 806 eligible Peers to 718. Over 300 of the life Peers who would remain have Front-Bench experience. There are 420 places on Select Committees, of which 24 are currently filled by hereditaries. Their replacement would mean that there would be losses, but they are replaceable and the exclusive right of entry would be brought to an end. There are plainly exceptional contributors among the 88 whom it would be invidious to name. For those who are party Peers, it will be for their party to decide whether their contribution should be retained by their appointment as a life Peer; and, for the Cross-Benchers, whether they or some of them return as life Peers will be a matter for the Prime Minister and HOLAC.

Thirdly, it is said that the removal of the hereditaries should await all the other changes which would occur to this House. History tells us that that is an excuse for no change. The principle is established that the hereditaries should go. It is right. It was the only immediate change promised in the manifesto; we should act.

Finally, reliance is placed on the words of my noble and learned friend Lord Irvine. In accepting the preservation of the 92, he said that they would go only when there had been full-scale reform of this House. It is explicit that his commitment envisaged immediate full-scale reform. In 2003, the Commons refused to accept any proposal for compositional reform and in 2012 the Commons again refused to progress that full-scale reform. The justification for retention had gone by 2003, certainly by 2012. Our Parliament is not a private club where membership can be determined in perpetuity by commitments now expired and made in a different time. Now is the time. For the sake of the hereditaries and for the sake of this House, we should not prevent their removal. Let us recognise their achievement and accept that it is time for them to go.

Health and Care Bill

Lord Falconer of Thoroton Excerpts

Lords Hansard _ Part 1 & Report stage
Wednesday 16th March 2022 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I am so thankful to be here tonight. It is a rare appearance but an important one and I am glad to be here in your Lordships’ House to oppose Amendment 170, which repeats the amendment that the noble Lord, Lord Forsyth, tabled in Committee. I apologise to the noble Lord for missing the first sentence of his contribution—I always enjoy his contributions and I am sorry to have missed the very first part.

This is a complex and highly contentious ethical issue. Opening the door to what is effectively assisted suicide would be a monumental change in the criminal law with potentially lethal consequences. If we get it wrong, it will result in some vulnerable people needlessly taking their own life.

The current Bill on assisted dying needs to be examined with the utmost care on the basis of highly informed opinion, robust evidence and a deep understanding of why hundreds of disabled people fear it. I do not think that we understand this cohort. I wish we did but we do not. We have seen a range of legislative developments in recent years in the UK and abroad, all of which demand detailed analysis.

Using this Bill to force the Government’s hand and the pace of deliberation on a matter specifically covered by an existing Bill is, I believe, as others do, a blatant manipulation of the parliamentary process. It sets a dangerous precedent and should be resisted. This is the wrong Bill, the wrong time and the wrong way in which to debate one of the most fundamental issues that we face as a society. I beg—yes, beg—noble Lords to reject the amendment.

[Lord Falconer of Thoroton (Lab)]

It is a privilege to follow the noble Baroness, Lady Campbell, whose contribution to the debate on assisted dying over many years is the admiration of all. I pay tribute to her and I know that the House thinks that as well.

I strongly support what the noble Lord, Lord Forsyth, is proposing for the following reason. We are trying to deal with an issue of conscience in Parliament. Issues of conscience generally have a bad time in Parliament because the major parties are not interested in such issues. You have to fight under our parliamentary procedures in order for issues of conscience to get dealt with. I completely agree with the noble Baroness, Lady Campbell of Surbiton, that this is a complex and difficult issue, but it is one that requires parliamentary time and, above all, Parliament to address the issue and make a decision.

I cannot convey adequately the mess that the law is now in. The law does not have the stomach to be enforced. Nobody wants a decent person who helps a loved one to die because they are having a terrible death to be the subject of prosecution, conviction and a possible sentence of 14 years. The law has been stood on its head and the Director of Public Prosecutions has been given the power to say that he will not prosecute if certain guidelines are followed. That means that the most basic principle of English law is subverted. It is not the judge and jury any more who decide whether you are guilty of the offence but the well-meaning and admirable Director of Public Prosecutions. If he says that you are not to be prosecuted, you are in the clear. If he says that you are to be prosecuted—remember you have assisted somebody to take their own life—you are guilty. He is making the decision. That reflects the way in which our society is trying to deal with the issue.

What we need is proper parliamentary time for parliamentarians to address this exceptional issue. I was a remainer, tragically, and was very much against all the strange ways in which Parliament operated. But this is an exceptional matter. The noble Lord, Lord Cormack, with respect, is not talking sensibly when he says that that we are sticking this matter on to the Commons. The Commons will have to decide whether they agree or not.

I urge this House to adopt the amendment, not because noble Lords agree or disagree on the issue of assisted dying but because they take the view that Parliament should properly address issues of conscience. Please do not be swayed one way or the other by the issues on assisted dying, because everybody knows that there are strong arguments in favour and against—I feel as passionately as those who are against. Address the issue on the basis of whether Parliament should be able to deal with issues of conscience.

[Baroness Butler-Sloss (CB)]

My Lords, it would be perfectly possible for someone in the House of Commons to raise this issue and deal with it there. What concerns me—I pick up what the noble Lords, Lord Cormack and Lord Howarth, said—is that this seems to be a constitutional issue. I am not going to say a word about the rights and wrongs of assisted suicide or assisted dying. However, I shall just read a few words of the amendment. It asks us to agree that the

“Secretary of State must, within the period of 12 months … lay before Parliament”


not just the possibility of a Private Member’s Bill being given time, which was what was suggested earlier, but a draft Bill. That is telling the Government what legislation they have to pass. This is a matter that transcends issues of compassion or whether one is on one side of the argument or the other, because what we in the Lords are telling the Commons is that they have to support us telling the Government to put forward a Bill with which they may not agree. But they do not have any choice if this amendment is passed. That Bill has to,

“permit terminally ill, mentally competent adults legally to end their own lives”.

The amendment is not asking the Government to please give time—I could understand that. It is telling, not asking, the Government to put forward a draft Bill in support of one side of the argument. Whichever side I was on, I would feel absolutely impelled to resist this amendment.

Coronavirus Bill

Lord Falconer of Thoroton Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 25th March 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I have tabled an amendment that in effect allows the Commons to sunset some clauses but allow others to go on before the two years are up.

If I may, I will put the timing into context. This is an important debate, because it involves identifying Parliament’s role going forward. At the moment, there is a sunset clause in Clause 89 that will bring the whole Bill, and all the regulations made under it, to an end after two years, except that under Clause 90(2) a Minister has the power to extend any of the regulations beyond the two-year period, and he can do that by a statutory instrument that does not have to be approved by Parliament before it has effect. That statutory instrument can last for 40 days before Parliament gets a view on it, and those 40 days do not include periods of recess, dissolution or prorogation. Under the Bill, therefore, the two-year period is subject to extension, on Ministers’ say-so, for a limited period. Even if we get to a point where the 40 days were up, they can produce another order and extend for another period.

We support the Bill, because the country needs the Government to have these powers, but we do so on the basis that it is subject to parliamentary control. That is the position in relation to the two years.

I support the idea of six-monthly reviews. At the moment, after the six-month period, if the House of Commons rejects a Motion that the Bill continue after six months, under Clause 68 the whole Bill and the regulations have to be brought out of force by the Minister. The way the Bill is drafted at the moment, it is an all-or-nothing provision. That cannot be right as a matter of practicality. As we move towards the end of the emergency, which we will, some of these provisions will be required—for example, the continuation of statutory sick pay, and preventing evictions, because people will not have got back on their feet financially. However, other powers should definitely go—for example, Ministers’ powers to close down premises, events and gatherings—as the need for those powers goes.

It is wrong that there is no provision for Parliament to say, “We want some of these powers to continue, but not others”. My anxiety about the current position of the Bill is that it can be extended over two years without proper parliamentary scrutiny, and can be brought to an end early—on the six-month basis—only on an all-or-nothing provision. Can the Minister assure us, first, that there will be no extension beyond the two years without parliamentary approval? Secondly, will he give an undertaking that if Parliament indicates by a vote that it wants some of the provisions to come to an end—and by Parliament, I mean the Commons—the Government will respect such a vote?

--- Later in debate ---

[Lord Tyrie (Non-Afl)]

I agree with everything I have just heard in support of these amendments. I hope your Lordships will allow me to say some of the things I would have said yesterday had I not been giving evidence to a Select Committee during the opening hour or two of the debate.

The UK is in lockdown. Of course, the pressure on the Government to act has been immense, but we are in very uncharted waters and tight sunset clauses are clearly appropriate. People are understandably fearful for their lives and their well-being, and the Government are right in response to that to try to flatten the peak to enable the NHS to cope and to address the fear that has grown in the wider public. The question now is not whether the lockdown was the right decision but for how long it can sustained. These amendments bear directly on that question.

I have two proposals that I think the Government might want to consider. They have a bearing on whether the sunset clauses might find themselves exercisable. We need to be clear why we have arrived in this position. The epidemiological evidence on which the lockdown decision was taken was very well summarised in the Imperial College paper, which shows that it is needed to prevent an 80% infection rate and between 250,000 and 500,000 impending deaths. What the paper does not contain is an analysis based on wider health outcomes or on wider economic and ethical considerations, as it readily acknowledges. In other words, the full health economics of this huge decision have not been developed or set out at all by the Government.

If, as is widely held, maintaining such a policy indefinitely is unsustainable socially and economically, it must follow, in the absence of an early vaccine or treatment, that an alternative policy will have to be put together very quickly. In order to establish that sustainable policy, we first need a wider analysis of the effects of the lockdown than we currently have in front of us on the basis of health economics, and in particular of the effect on morbidity and mortality that will come as a consequence of the disruption to economic life. Extensive research on earlier sharp interventions suggests that these effects could be very large, and this may be true for both the full and the partial lockdowns discussed in the Imperial paper.

A second piece of analysis that needs to be undertaken—

[Lord Falconer of Thoroton]

I very much apologise for interrupting the noble Lord, who is making an incredibly valuable speech, but after my amendment there is one more amendment, which was put down by the noble Baroness, Lady Ludford. We must get to it and debate it by 2.30 pm, which is jolly unfair, in a way. Can we get to that amendment and then perhaps have the Second Reading speech?

[Lord Tyrie]

I gladly agree to what has been proposed from the Labour Front Bench.

--- Later in debate ---

[Lord Anderson of Ipswich]

My Lords, I signed Amendment 13 and I offer two sentences on it. The amendment will have no legal effect because, admirably, nothing in the Bill seeks to oust or modify provisions of the Human Rights Act or the Equality Act. But if the Minister can confirm that there is no intention of departing from those important statutes, that would be a powerful signal to the sceptics and conspiracy theorists, both here and abroad, who might otherwise wrongly suggest that in enacting this unfortunately necessary legislation, we are abandoning some of the fundamental legal and moral principles that bind us together.

[Lord Falconer of Thoroton]

My Lords, as the noble Baroness, Lady Ludford, rightly said, we on these Benches support these provisions. I thoroughly endorse what the noble Lord, Lord Anderson, just said and it would be of enormous importance if the Minister gave the assurances that the noble Lord seeks.

[Baroness Kennedy of The Shaws]

My Lords, I too support the amendment and hope that the Minister will make appropriate noises about why this matters. Around the world, legislation is being passed in other countries that does not have these kinds of protections attached to it. We are seeing legislation going through in Hungary and, I am afraid, elsewhere, which will greatly erode the rights of the people living in those places. I strongly encourage the Government not only to say that the Human Rights Act and the Equality Act will be conformed to, but to ensure that those are firm instructions given to all those who will be exercising powers under this exceptional piece of legislation.

Earlier today, I sought to insinuate into this debate something about people in prison. I was surprised to find that there was no real reference to prisons in the legislation. But this morning it was mentioned that there is a problem inside the prisons—a number of people have already been diagnosed as having Covid-19—and so people are being confined to their cells. It was indicated that decisions might be made about releasing certain people from custody. Again, I ask that this is done in a way that conforms to the Equality Act and the Human Rights Act, and that real steps are taken with respect to fairness. I ask also that people in prison—who are not getting access to their families in the way that most people who are self-isolating can, through the internet and so on—are given the mechanisms to do that: to have virtual meetings and other mechanisms for contact with their families. At the moment, there is misinformation inside the prison system, and it is likely to cause a great deal of unrest. I urge the Government to be clear about the importance of conforming to human rights and equality standards.

Privileges and Conduct Committee

Lord Falconer of Thoroton Excerpts

Monday 17th December 2018 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords—

[Lord Falconer of Thoroton (Lab)]

My Lords—

[Lord Macdonald of River Glaven (Non-Afl)]

My Lords—

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I make three short points. First, I adopt in full the speech made by the noble and learned Lord, Lord Mackay of Clashfern, in the first debate. He pointed out that we all promised to abide by this procedure, that the complainant in this case made a complaint in accordance with that procedure, nobody doubted that the procedure was followed and then, at the very end of the process, this House said, “Sorry, although your complaint has been justified by the terms of this procedure, we are changing the rules now”. It was not an attractive sight to watch. I agree with the noble and learned Lord, Lord Mackay of Clashfern.

Secondly, the wrongness of the view that we have to have the orotund procedure described by the noble Viscount, Lord Hailsham, is obvious to practically anyone who has experience of disciplinary complaints. I include in the names of people to whom it is obvious the noble and learned Lords, Lord Brown of Eaton-under-Heywood, Lord Hope of Craighead, Lord Irvine of Lairg and Lord Mackay of Clashfern—the people who are on our Committee for Privileges. The idea that there is some legal bar to having a process whereby we have an inquisitor who asks the questions of both sides, putting both sides of the case, is absolutely ridiculous. Do not judge that as lawyers: judge it as ordinary people.

My third point—and the thing that makes me most angry—is the hypocrisy of some noble Lords in citing Dame Laura Cox in support of their position. What Dame Laura Cox said was that members of staff in the House of Commons would never believe that they would get a fair hearing if Members of Parliament were involved in making the ultimate decision. What happened when this case came along is that someone who was in chambers with the person we were considering, someone who had been a friend of his for years and somebody who went on holiday with him for years all spoke on his behalf. Nobody spoke on the complainant’s behalf at all. The House then voted in favour of remitting it back to the committee. We should not regard the debate on 15 November as anything other than a sign of extreme hypocrisy.

The particular hypocrisy that I focus on is the fact that the reason it was remitted was because we focused on process and all of Lord Lester’s friends then voted to remit it, despite the fact that that was the most obvious breach of process. I urge the House, by what we say today, to give the fullest possible support to the noble Lord, Lord McFall, in what he has asked us to do.

[Lord Macdonald of River Glaven]

I wish to address the House for a few minutes only on a subject to which many noble Lords have alluded, which is cross-examination. I cannot claim the 50 years of the noble Viscount, Lord Hailsham, but I can claim 40 years at the Bar. During that time, I guess that I have spent hundreds of hours in adversarial proceedings cross-examining witnesses myself or watching co-defending counsel or opposing counsel cross-examining. That has been the greater part of my professional life.

Many noble Lords in this debate and in the debate last month have reminded the House of the famous dictum that cross-examination is the greatest legal engine for the discovery of truth ever invented. Of course it can be, and I have seen it so. I have seen liars unmasked, fraudsters exposed and terrorists cross-examined into confinement for decades. But my years of experience have also taught me that, like most aphorisms, this one is not able to paint the whole picture. Cross-examination can, of course, uncover the truth, but it can also obfuscate. It can advance a false prospectus, and it can intimidate. In adversarial proceedings, especially where freedom and forced confinement are in issue, its essential combativeness is indulged, but always and only under the watchful eye of a trained, professional judge.

I am sure that cross-examination can be one way to get at the truth, but I have never believed that it is the only way. In particular, I have never doubted that a diligent and fair inquiry by a competent tribunal, taking the necessary evidence, examining the relevant issues and asking the proper questions, is also capable of uncovering the truth. Tribunals proceed in this way every day, in this country and in other fair-trial jurisdictions around the world. The questions asked by a tribunal are, of course, a form of cross-examination in themselves, but cross-examination conducted in a more neutral, more objective manner, perhaps better suited to the inquisitorial style.

It is clear to me from the papers in Lord Lester’s case, which I have read, that the commissioner asked the complainant about all of the primary matters that might have been put in cross-examination: “Why did you go back to Lord Lester’s house?”, “Why did you dedicate the book to him in the way that you did?”, and so on. And the commissioner got her answers. It is true that these questions were asked in a gentler, more neutral way than might have been expected from a robust cross-examining lawyer, but there is no harm in that. Indeed, there are many situations in which this sort of low-key approach is more likely to get at what really happened, precisely because it occurs in a gentler, less aggressive environment. In my judgment, a disciplinary hearing, particularly where sensitive allegations of sexual misconduct are being aired, is certainly one of those situations.

Your Lordships could have mandated an adversarial disciplinary regime. I would not have recommended it, but you could have done so. This House could have mandated an inquisitorial system in which the participants were lawyered up, including for the purposes of cross-examination. Again, I would not have recommended this, but it could have been recommended. Even though both these things could have been done, they are emphatically not a pre-condition for a fair process. On the contrary, in my judgment, the process that your Lordships alighted upon was, for all the reasons that other noble Lords and the committee have set out, reasonable and fair.

Let me address one final thing on this subject, the standing of the commissioner. Lucy Scott-Moncrieff is a figure of the highest reputation in the legal world, a solicitor with a distinguished practice, a past president of the Law Society and a founding member of the Queen’s Counsel appointments panel. This House could hardly have selected someone more suited to the difficult task in hand, or more deserving of our trust. Your Lordships devolved to her the power to inquire fairly and thoroughly into the circumstances of Lord Lester’s case and to come to her reasonable conclusion on the evidence. That was her warrant. In my judgment, she discharged it faithfully.

Before I sit down, I wish to say one other thing briefly. During my five years as a public servant, as a prosecutor, my colleagues and I struggled endlessly against the sort of insidious stereotyping that bedevilled sex crime prosecutions. “Why didn’t she report it sooner? Why didn’t she distance herself more? Why was she wearing this? Why was she drinking that?”. In the end, we believed that we were making some progress, as judges repeatedly warned juries about the dangers of making stereotypical assumptions about the way that traumatised people react to the source of their trauma, warning them that they should not allow what may be little more than prejudice to cloud their judgment of the fact that an injustice has been done. Let us not find ourselves, in this House, moving backwards.

--- Later in debate ---

[Lord McNally]

Wait a minute. Read what she says. Why did she wait another seven years? She did so for political reasons, not for trauma. It is not outrageous.

[Lord Falconer of Thoroton]

Is it appropriate to undermine somebody who does not have a chance to answer? I invite the noble Lord to stop this now.

[Lord McNally]

I will not take any advice from the noble and learned Lord. He has already talked about hypocrisy; I bow to his expertise in that.

United Kingdom-European Union Future Economic Partnership

Lord Falconer of Thoroton Excerpts

Monday 5th March 2018 Lords Chamber

[Baroness Evans of Bowes Park]

I thank my noble friend for his comments. I entirely agree. It is important to remember that many regulatory standards are themselves underpinned by international standards set by non-EU bodies so we are certainly committed, and believe it is absolutely achievable, to ensuring that our relevant UK regulatory standards remain as high as the EU’s. As I have said, many of these standards are underpinned by international standards—for instance, the UN Economic Commission for Europe sets vehicle safety standards—set by organisations of which we will continue to be a part.

[Lord Falconer of Thoroton (Lab)]

I express my gratitude to the noble Baroness the Leader of the House for repeating the Statement. The prosperity of the nation is one of the principles that the Prime Minister referred to in both her Mansion House speech and her Statement to the Commons today. I assume, and I would be grateful if the noble Baroness could confirm this, that some economic assessment was made of what the impact would be of achieving all the things that the Prime Minister set out to achieve in her Mansion House speech. In that speech she set out what the UK’s negotiating position would be, recognising that we would have less market access than before. I invite the noble Baroness to confirm to this House that that work was done and to indicate when it will be published, because the nation is entitled to see it.

[Baroness Evans of Bowes Park]

As I said in my response to the noble Baroness and the noble Lord, yes, the Prime Minister has said that obviously we will have different access to the European market, but we are also committed to developing a broad and deep relationship with the EU and to having trade agreements elsewhere. We have committed to providing Parliament with appropriate analysis ahead of the final vote on the deal.

Iraq

Lord Falconer of Thoroton Excerpts

Friday 26th September 2014 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I am delighted to follow the noble Lord, Lord Hurd, whose authority and insight were evident in his remarks, with which I wholeheartedly agree.

I support the Government’s proposal to contribute to the air strikes within Iraq against ISIL in aid of the Iraqi Government’s defence of Iraq and its citizens. The question of whether further intervention is required, including in Syria, is for another day. Nothing should be ruled out. We should stand up to ISIL by using force to help those who are in the front line against it. There is no other sensible or just option.

I would not support the use of force by Her Majesty’s Government unless it was lawful under public international law. I have no doubt that it is and I will address this issue briefly. The use of force by one state in the territory of another state is lawful if authorised by the UN under Article 42, or in self-defence, or pursuant to the responsibility of nations to protect the citizens of another country who are the subject of mass human rights abuses from which their own Government cannot or will not protect them, or also when there is an immediate humanitarian emergency that is likely to be averted by the use of force. The precise parameters of this last possible basis for the use of force under international law are uncertain, but it exists and was the basis for intervention by Her Majesty’s Government in northern Iraq in 1991 and following, and in Kosovo in 1999. It does not require a UN resolution.

In this case, there is no Article 42 resolution. Self-defence requires no UN resolution. It includes collective self-defence. Where one country, at the request of another, comes to the aid of the requesting country in defending itself, the use of force by that other country—in this case our own—is lawful, provided that the force used is proportionate and is in response to an immediate threat to the country defending itself. Iraq has requested assistance, as the noble Baroness the Leader of the House has described. There is no doubt that there is a threat to the territorial integrity of Iraq and the lives of its citizens. That threat is real and immediate.

The force used in self-defence must be proportionate. That must be a judgment made on the ground, with which we should be extremely slow to interfere, as the noble Lord, Lord Hurd, indicated. We offer six Tornado aircraft, as well as continued surveillance, targeting ISIL’s military capacity in Iraq. It seems extremely unlikely, in the light of that contribution, that issues of proportionality will arise.

Collective self-defence—a basis for the use of force expressly preserved by Article 51 of the UN charter—provides clear legal authority in this case. This legal justification is uncontroversial and while, no doubt, there will be some who will seek to controvert it, it is not significantly in doubt. As for the “responsibility to protect” doctrine, I can see a very strong case for it being invoked. There are many who think it cannot be invoked without a UN resolution. But Iraq, in seeking the support of other nations in self-defence, is responding appropriately to the threat to itself and its citizens.

The right of countries to intervene with force in another country, under the “responsibility to protect” doctrine, arises where that country’s Government will not or cannot protect their own citizens. Where, as in this case, the Government genuinely seek the assistance of other countries to protect their citizens and the assistance obtained is likely to be a sufficient and proportionate response to the threat, and while the “responsibility to protect” doctrine may also justify intervention, the detail of that need not be examined because of the clear collective self-defence case. Similarly, that is also the case in respect of the immediate humanitarian emergency basis.

I have one final point. The constitutional course adopted by the Government in this case, in making and seeking Commons support for the decision, is right. The decision on whether to use force resides constitutionally with the Executive. There is, however, a constitutional convention that, under normal circumstances, the Government should seek the support of the Commons in their decision to use force, in advance of its use. Where that support is not forthcoming, force should not be used. That convention is not formalised in the sense of appearing in legislation or standing orders. To reduce it into writing would reduce its flexibility. But it exists and it should be given effect to. I congratulate the Government on giving effect to it. It is right that we are also recalled to give our views, but it is not us who have to endorse the right to go to war: it is the other place.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 16th February 2011 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I shall make a brief intervention. I did not participate in the debate this morning, although I did so at Report, 10 days ago, in a way that I am afraid my noble friend found slightly disobliging. I also voted in a disobliging way then and again earlier today.

I found the amendment of the noble Lord, Lord Rooker, persuasive on four grounds. First, as he has said when he moved it, we should avoid setting or reinforcing the precedent that referenda should not have thresholds. I do not like referenda. We elect Members to go to the other place to take difficult decisions and I think that referenda that decide important issues of public policy with small turnouts are doubly undesirable. The second reason for supporting the noble Lord’s amendment is that it sets the binding, mandatory threshold at a level that would command public confidence. It is the stickability and credibility argument. A 40 per cent turnout, at which 21 per cent, or one in five, will have had to vote in favour, seems to strike the right balance. Thirdly, the amendment means that if there were to be, as I fear there will be, substantially differential turnouts in different parts of the country because of the different types of elections taking place—parliamentary elections, Assembly elections and, in London, no elections at all—those for whom the referendum goes in the wrong direction need to be assured that there has been a reasonable overall turnout. I think that 40 per cent is that right level. Finally, the amendment is not a fatal amendment because the referendum would become advisory if the turnout was below 40 per cent. Indeed, the amendment in the name of the noble Lord, Lord Elystan-Morgan, would not have had my support because it sought to tie the hands of the Government, as opposed to enabling them to have the opportunity to consider the advisability of proceeding, when we knew what the final turnout was.

The amendment is being put forward once again by the noble Lord, Lord Rooker, in his normal robust and combative way—and it is none the worse for that. The noble and learned Lord, Lord Falconer of Thoroton, in his more silky and persuasive form, sought to raise the debate to a higher level and has made remarks such as that the amendment is in line with our parliamentary democracy and high principles. I hope that he will forgive me if I say that, when I see how his party has changed its voting position in the other place, there may be high principle, but there must be at least a whiff of political opportunism around the other Chamber.

We have now asked the other place to think about this issue twice and we have had a clear answer twice—by 70 votes last night and by 79 this evening, if my mathematics are right. We have heard a powerful speech from the noble and learned Lord, Lord Lloyd of Berwick. Whatever the rights and wrongs of the amendment, he was right to tell us that we are discussing an issue that focuses narrowly on a matter that affects the other place alone. Therefore, while I continue to have considerable and very grave doubts about the course on which my Government are embarking, I am afraid that I have now concluded, after two disobliging votes, that the time has come for the Members of the elected Chamber to make a final decision, because they alone will have to live with the consequences of their deliberations.

[Lord Falconer of Thoroton]

My Lords, it is for your Lordships to imagine what happened to the noble Lord, Lord Hodgson of Astley Abbots, between approximately 1 pm this afternoon and that rather unimpressive speech.

[Noble Lords]

Oh!

[Lord Hodgson of Astley Abbotts]

I described the noble Lord as “silky”. I withdraw that immediately.

[Lord Falconer of Thoroton]

And I withdraw the word “unimpressive” and apologise to the noble Lord, Lord Hodgson.

There are two issues for your Lordships to consider. First, are your Lordships satisfied that the issue is important enough to be referred back? Secondly, has it been considered properly by the other place? On the first matter, we have had many debates on the issue, which has been described as the most important constitutional change since 1832. The Leader of the House talked about fair values for fair votes and other things like that. He did not deal—just as Mr Harper in the other place did not deal—with the issue of a derisory turnout leading to a fundamental change in our voting system. That is the importance of a threshold; that is why it matters; and that is why it is at the heart of what is left between your Lordships and the other place. It is for your Lordships to determine whether the issue is important. I certainly regard it as important, and it is not without significance that it is the last issue that stands between this House and the other place.

The second issue, which is the one most relied on by the Leader of the House and the noble Lord, Lord Hodgson of Astley Abbots, is: “Well, we’ve asked twice; now is the time to subside”. The amendment was first passed in your Lordships' House last Wednesday. It went to the Commons this afternoon. It was debated for another hour. I have not been able to access Hansard to read the debate. I have had a report from my noble friend Lord Rooker, which the House has also had, on what was said in the other place in the debate. This is an important constitutional Bill. It seems wrong that we should make our decision on this important issue on the basis of a debate that we cannot even read in Hansard, eight days after it was raised for the first time last Wednesday.

Noble Lords opposite shake their heads and say, “Let’s just ram this through now at this 11th hour”. It is for your Lordships to decide whether this is the right course for the House, whose role is not to overrule the other place but to make it think again, to say that debating it twice in one day, eight days after the amendment was tabled, is consideration enough of whether 13 per cent of the electorate voting for a fundamental change in our voting system that all noble Lords in this Chamber know would not be—

[Lord King of Bridgwater]

My Lords—

[Lord Falconer of Thoroton]

I am not taking interventions. Thirteen per cent of the electorate could pass a change in our voting system that would not be passed in the other place. Is that an appropriate basis on which to make a fundamental change? Is there a country in Europe or a developed democracy that would allow its constitution to be changed on that basis? Therefore, this is an important matter.

We do not know what the Commons said, although I am sure that we have a very accurate report from my noble friend Lord Rooker. Should the Commons think again or should we rely on that eight-day period as being sufficient? In my respectful submission to this House, if we are serious guardians of the constitution, then eight days is not enough. A debate that we cannot read is not enough, and the issue is sufficiently important for us to ask the Commons respectfully to think again. Therefore, I shall support my noble friend Lord Rooker, whose judgment throughout this whole debate has proved impeccable.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 9th February 2011 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I hope to deal with this amendment quickly. It is a modest and practical amendment, and it is similar in effect to the amendment moved in Committee. I see that a number of Members of the House do not have a copy of this manuscript amendment and I hope that it will be in order for me to read it out:

“The Chief Counting Officer must take whatever steps the officer thinks appropriate to facilitate co-operation between that officer and the officers to whom sub-paragraph (3) applies in taking any steps under sub-paragraph (1) or (2)”.

The nub of the amendment is a desire to ensure that there is co-operation between all those who under paragraph 10 of the schedule have a duty to “encourage participation”. The regional counting officer is given that duty under paragraph 10; so, too, is every regional counting officer, every counting officer and every registration officer. Your Lordships may remember that, when I moved a similar amendment in Committee, there was support for it all around the Chamber, and the noble Lord, Lord Bach, was very generous in strongly supporting it. This amendment brings back that principle, and I have tabled it following very helpful discussions with the Minister and the Bill team.

I think that I need say little more. The point is that, under the Bill as it stands, no one is given the task of co-ordinating what could be extremely dislocated efforts to encourage participation. This amendment, as I said, simply states that, among the four groups of officials involved, the chief counting officer has the role of ringmaster in trying to maximise the encouragement of participation, because everyone in this House wants this referendum to engage as many members of the public as possible. That is the size of it. I beg to move.

[Lord Falconer of Thoroton]

My Lords, the manuscript amendment moved by the noble Lord, Lord Phillips of Sudbury, comes under the part of the schedule headed “Encouraging participation”. As I understand it, he wishes to place on the chief counting officer responsibility for co-ordinating the activities of a regional counting officer, a counting officer and a registration officer in performing their duties under paragraph 10 to encourage participation. It is very hard to see how anyone could object to that. I do not know whether there are any technical objections to the terms of the noble Lord’s manuscript amendment, but it seems a sensible measure, because there is no one in the House who does not want to encourage participation.

If there are technical problems with the manuscript amendment, I imagine that they could be tidied up at Third Reading on Monday. On the basis on which it has been advanced by the noble Lord, Lord Phillips of Sudbury, we support the principle of the amendment, subject to any difficulties that we have not foreseen to which the Minister may draw our attention.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Phillips of Sudbury for tabling the amendment. He gave a history of the debate in Committee. We agreed when he withdrew his amendment in Committee that we would have further discussions. I am pleased that we have been able to have those discussions. In Committee, the Government indicated that we were not persuaded that such an amendment was necessary. My noble friend and I have agreed that there was merit on both sides. Our meeting has added clarity. It has put the issue of co-operation right up front. The noble and learned Lord, Lord Falconer of Thoroton, has emphasised the importance of co-operation, with which we all agree, in trying to ensure encouragement of participation in the referendum, usbregardless of which side of the campaign one might be on.

It is a manuscript amendment. If my noble friend is willing to give us the opportunity to reflect on its wording, I very much hope to be able to come back to him with a definitive response during Third Reading. Perhaps he would be prepared to withdraw his amendment at this stage on that basis.

--- Later in debate ---

[Lord Phillips of Sudbury]

I hope that there was a clear implication that my noble and learned friend accepts the nub of the amendment and that it is just a question of technical jiggery-pokery.

[Lord Falconer of Thoroton]

I apologise to the noble Lord, Lord Phillips, for making two loud noises from a sedentary position, but his point was precisely that which was going through my mind about the noble and learned Lord’s response. It was not clear from what he said whether he would come back with something or whether he was just considering something. The response of the noble Lord, Lord Phillips, is exactly the response that I would have given.

[Lord Wallace of Tankerness]

If it helps, I very much hope to be able to come back with a very positive response to my noble friend. I just wanted to check.

--- Later in debate ---

[Lord Strathclyde]

My Lords, this is a series of government amendments to deal with the issue of postal and proxy voting. They provide that anyone who registers or is already registered to vote by post, or has a proxy vote in a combined poll, will receive a postal vote for the referendum. They include, I fear, a long string of consequential amendments. Therefore, I beg to move Amendment 34A and will then move en bloc Amendments 34B to 34AS, with the leave of the House.

[Lord Falconer of Thoroton]

I am slightly at a loss. Roughly, in a sentence or two, what are they doing and why are they being done at Report?

[Lord Strathclyde]

I spoke in one sentence, and I thought that I was the object of clarity. Why are we doing it at Report? Because we did not spot it before. No doubt in those long days in Committee the officials were busily looking at these issues again and came to the conclusion that there needed to be some clarification.

The point is that an elector who is already registered for a postal vote for one of the polls combined with the referendum, and who is therefore entitled to vote in the referendum, is now as a result of these amendments, which I hope will be agreed, also automatically registered for a postal vote for the referendum. It is about dealing with the issue of the combination of the polls at the same time. It is designed to make life easier, and I am sure that the noble and learned Lord will agree it.

--- Later in debate ---

[Lord Strathclyde]

My Lords, this is a small and technical amendment dealing with the definition of a qualifying party. I beg to move.

[Lord Falconer of Thoroton]

The obvious question is, “What are these for?”, but it is just too late at night to ask that—so don’t even get up to respond.

[Lord Strathclyde]

I cannot resist, because I know that it would be helpful to the noble and learned Lord if I tell him that this amendment is relevant only to Northern Ireland.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 31st January 2011 Lords Chamber

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, from time to time I keep the House informed about progress on this Bill, and this is one of those occasions. As we start this, the 15th, day in Committee on the Parliamentary Voting System and Constituencies Bill, I am delighted to be able to inform the Committee that there is now agreement among the usual channels on a timetable for completing Committee. As a result of a series of productive discussions, the usual channels agree that Committee should be completed by the end of business on Wednesday this week. This is within the time that has already been scheduled and indicated on the Order Paper. I am sure that all noble Lords who have followed proceedings on the Bill, and perhaps a few who have not, will welcome a return to the effective functioning of the usual channels on the Bill, and I sincerely hope that this means that there is no longer any need for me to ask the Committee collectively to come to a resolution on how proceedings on the Bill should be regulated.

During Committee so far, the Government have held meaningful discussions with the Opposition and with a number of other Members of the House, in addition to debate on the Bill in the Chamber. As a result, the Government will bring forward a package of concessions on Report, and I am sure that the whole House will welcome that. Therefore, we are in the welcome position of having agreement to complete Committee by the end of Wednesday this week. Equally, I am sure I have no need to remind the Committee that we need to return this Bill to the other place by the end of Monday, 14 February—that is, two weeks today—if the referendum is to be held on 5 May. From the soundings that I have taken, I feel confident that the majority of Members from all parts of the Chamber share this aim.

[Lord Falconer of Thoroton]

My Lords, I am obliged to the Leader of the House. As he has said, we have agreed through the usual channels that Committee on the Bill should be completed at the close of business this Wednesday. This is the product of good discussions on the substance of the Bill over the weekend and today. Focusing only on the key issues on Report and employing the economy and focus which your Lordships will expect on Report and at Third Reading, the timetable will depend on further agreement between the parties on substantive issues. The Cross-Benchers have played a critical part in getting us to the good point that we have reached, and we now commit ourselves to work hard to try to reach the necessary further agreement.

[Lord Tyler]

My Lords, on behalf of a number of us who have been here for long hours into the night, I congratulate and thank those who have been involved in these discussions, not least the Convenor of the Cross-Benchers. I hope that this spirit of compromise will extend into the planning of Report, on which we might otherwise find ourselves in a repetition. I remind the noble and learned Lord, Lord Falconer of Thoroton, that he and his colleagues endorsed the working group of Labour Peers, chaired by the noble Lord, Lord Hunt of Kings Heath, which recommended that a reasonable time limit be set for all Bills to complete their passage in the Lords. I also remind the noble and learned Lord that in endorsing that recommendation, in a speech to the Labour Party conference on 29 September 2004, he said very wisely:

“The Second Chamber should have the powers to revise, to amend, to scrutinise, but not finally to frustrate the programme of a legitimately-elected government”.

--- Later in debate ---

[Lord Pannick]

My Lords, I have added my name to Amendment 94A. I agree with everything that has been said by the noble Baroness, Lady D’Souza, and the noble and learned Lord, Lord Woolf. I thank the Minister and Mr Mark Harper in the other place for the courtesy they have shown in spending time with me discussing possible amendments to crucial aspects of the Bill. I take the view—I know that I am not the only noble Lord who does so—that the Government are certainly entitled to get their business through this House. However, the Bill would benefit considerably from improvements to Part 2. I am delighted to hear from the Leader of the House that concessions will be brought forward. The Clause 11 formula of a 5 per cent band either way for an electoral quota is simply too rigid to allow for proper consideration of geographical considerations and local ties. It is wrong in principle for Clause 12(2), which we are now debating, to abolish the power of the Boundary Commission to hold a public inquiry.

The Boundary Commission process, including public inquiries, has served this country very well. It has maintained public confidence by a transparent process which has avoided even the suspicion of gerrymandering which blights so many other democratic countries. The Boundary Commission needs to retain some form of discretion to call for an inquiry, at least in those cases where it considers that it is necessary, with appropriate safeguards. I am sure that improvements can be made to the statutory scheme to promote efficiency and reduce delays but there really is no case for abolition. I very much hope, and expect, that the Minister will tell the Committee that this is one of those matters on which the Government intend to bring forward concessions.

[Lord Falconer of Thoroton]

My Lords, we welcome the amendment spoken to by the noble Baroness, Lady D’Souza, the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick. The amendment to reinstate public inquiries into Boundary Commission proposals provides your Lordships’ House with an opportunity to start edging back from the precipice. It builds on an amendment moved by the opposition Front Bench which your Lordships debated last Wednesday. Although the Cross-Bench amendment that we are debating is more restrictive than ours, we willingly support it in the interests of breaking the deadlock on Part 2. It is a sensible and practical proposal for which we are grateful.

Clause 12 will, if enacted, abolish completely—indeed, it would go further than that and ban—the right to hold a local public inquiry into the recommendation of a Boundary Commission. The Government have chosen to put in the place of a public inquiry an extended consultation period by written submission of eight weeks. It is our submission that this is not an adequate replacement. Part of the function of a local inquiry is to provide people with a fair hearing and an explanation of why a proposal has been turned down. That is essential to the legitimacy of the process and we believe that it improves the decision-making process as well. Perhaps one of the most telling facts is that in every single case where the Boundary Commission was proposing significant changes, such as an increase or a decrease in the number of constituencies in a particular locality, its initial proposals were in every case amended following a public inquiry, so public inquiries are at their most valuable when the recommendations under consideration are the most dramatic. That fact is particularly salient in the context of this Bill which provides for a boundary review based on a reduction of 50 constituencies and the new set of rules dominated by a rigid electoral parity rule.

As the heads of the four Boundary Commissions have made clear, those factors mean it is inevitable that the next review will result in considerable changes to the electoral landscape, so considerable in fact that the Bill states in Rule 9(2), in Clause 11, that the Boundary Commissions are not permitted to take into account Rule 5(1)(d),

“inconveniences attendant on such changes”,

when conducting the forthcoming review.

They can take account of inconvenience in future reviews, but not in this first one.

As we debated in your Lordships’ House last week—I recommend that your Lordships read Hansard to see the relevant quotes—even psephologists who are sceptical about the value of public inquiries have said that on this occasion, in this context, they should be retained. Indeed, they have made the point that, while political parties have tended to be the major participants in inquiries, the scale of change that will be brought about by the next review is likely to provoke a much greater level of involvement by individuals and groups of local people. That is one of the reasons why we on this side of the House have not been willing to drop this matter.

I accept that there is a case for amending the current provisions in the Parliamentary Constituencies Act 1986 so that boundary commissions have some discretion about whether to go ahead with an inquiry, even where the basic threshold is met. However, the amendment proposed by the Cross Benches addresses that issue. The amendment that we moved last week provided that element of discretion. The variation on our amendment, tabled by the noble Baroness, Lady D’Souza, the noble Lord, Lord Woolf, and the noble Lord, Lord Pannick, has tweaked the drafting on that point and made the position clear. We are grateful for that.

There is also the point about judicial review, made by the noble and learned Lord, Lord Woolf, in the dead of night last week, which he makes again today. I will not repeat what he said, because he said it a lot better than I ever could. His intervention on Wednesday was a powerful one and I very much hope that the Government will listen to it.

The Cross-Bench amendment keeps our initial six-month limit on a local inquiry but states that no secondary inquiry should be allowed. Given that these are very rare in practice, we have no objection to that change in the proposal.

I hope that the Minister, in responding to this debate, will be able unequivocally to accept this amendment. It has nothing to do with partisan advantage. It is a practical proposal concerned with the legitimacy of the process for drawing constituency boundaries. Helpfully and constructively, the noble and learned Lord, Lord Wallace of Tankerness, confirmed last week:

“It is not a fundamental principle of the Bill that there should be no oral inquiries.”.—[Official Report, 26/1/11; col. 1070.]

We have high hopes that the noble and learned Lord will enable us to progress in this matter by broadly accepting the proposal in the Cross-Bench amendment. I support the amendment.

[Lord Mawhinney]

My Lords, in the spirit of the Chamber, I want to make two simple and quick points. I make a comment about the thought of a local inquiry not only from the experience of twice having my constituency rejigged through the process, but also from my experience as the chairman of our party a number of years ago.

Local inquiries can occasionally develop a life of their own. I wonder about the six-month limit because I can fairly easily foresee a legal argument arising out of a consultation that had not been satisfactorily concluded in this six-month period. I say to my noble friends on the Front Bench that I have some concern about the concept of a public inquiry in this context. Having said that, I add something that they may not welcome quite so much. I very much agree with the noble Lord, Lord Pannick, when he said that the Boundary Commission needed some “discretion”—I use his word. I hope—indeed, I think the whole House hopes—that the Government will find it possible to meet the spirit reflected in what the noble and learned Lord, Lord Falconer, has said and what I am saying in sympathy with what has already been said: that whether it is a local inquiry or not—and I have concerns about the concept of a local inquiry—there needs to be some element of discretion for the Boundary Commission.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 26th January 2011 Lords Chamber

Debate on whether Clause 11, as amended, should stand part of the Bill.

[Lord Falconer of Thoroton]

My Lords, I have two questions. First, in Clause 11, rule 7(1)(b) states that if the Boundary Commission,

“consider that having to apply rule 2”—

which I understand is the electoral quota—

“would unreasonably impair … their ability to take into account the factors set out in rule 5(1)”,

which are,

“special geographical considerations … local government boundaries … any local ties that would be broken by changes in constituencies”,

and,

“the inconveniences attendant on such changes”,

it is entitled to apply those factors, and in effect downgrade rule 2. What is the thinking behind the Government treating Northern Ireland differently, particularly having regard to the principle, stated and restated, of the need for equality in constituencies? We have not referred to that either at Second Reading or in any other debate. I ask of course because I am interested in Northern Ireland, but also to probe the principle underlying the Bill.

The second question relates to the review date. During the debates about electors who are missing from the electoral register, it was said that the date on which the register would be taken was December 2010. I assume that this comes from rule 9(2), which states:

“For this purpose the relevant version of a register is the version that is required by virtue of subsection (1) of section 13 of the Representation of the People Act 1983 to be published no later than the review date”.

Rule 9(5) on page 12 states:

“The ‘review date’, in relation to a report under section 3(1) of this Act that a Boundary Commission is required … to submit before a particular date, is two years and ten months before that date”.

Is it because the Government assume that the Boundary Commission will submit a report in October 2013 that the relevant register is that of December 2010? If the commission submits a report before October 2013, will the relevant register be a month earlier; and, equally, if it is submits it after October 2013, will it be a month later? The significance of this is that I understood from answers given by the noble and learned Lord, Lord Wallace of Tankerness, that the relevant date of December 2010 was rigidly fixed, whereas I understand that the way that the Act will work is that the register of two years and 10 months before the date of the report will be taken. If I am right in that surmise, how will the Boundary Commission know when it submits its report what the relevant register is? Those are my only questions on Clause 11 stand part.

[Lord Strathclyde]

My Lords, I thank the noble and learned Lord for raising his questions in the debate on Clause 11 stand part. It is worth reiterating that the clause reforms the arrangements for drawing constituency boundaries for the House of Commons. It provides that in future the Commons will be reduced to 600 seats, and that the rules for the distribution of seats will be recast so that seats will be more equal in size and allocated to each part of the UK in proportion to the electorate.

As the clause points out, two constituencies are specifically excepted from the parity rules. We know what they are and have discussed them at length.

The noble and learned Lord asked about the role of Northern Ireland. As he pointed out, the rules make special provision for additional flexibility to allow for constituencies outside of the parity range in Northern Ireland in the event that simple rounding effects make it difficult for the Boundary Commission in that part of the UK to recommend seats within the quota. That could arise if Northern Ireland only just missed out on being allocated an extra seat. I hope that that explains the thinking behind that.

It has also been suggested that the provision is flawed and that the Bill should provide for national electoral quotas. However, that approach would give rise to more variation between constituencies. A single UK electoral quota has the advantage of simplicity and clarity, and that provision will be triggered only in the event that rounding causes difficulty. It has also been suggested that the provision ignores a similar issue that may arise in Wales. However, as Wales has about twice the electorate and will therefore have about twice the number of seats, the problem is half of that in Northern Ireland. As such, there is no need to make similar provision.

As the noble and learned Lord pointed out, the boundary review will be based on the electoral register in force at the time of the review, and the first review will be based on the register in force on 1 December 2010. Previous boundary reviews have used the electoral register. The Bill's provision is no different. As we have discussed, the registration rate in the UK is between 91 and 92 per cent. Work is under way to ensure that the electoral register is as complete and accurate as possible—for example, freeing local authorities to identify people not on the register using existing public sector databases. The date of the register to be used is fixed because it is calculated by reference to the date on which the commissions are required to report, not the date on which they actually report, hence the difference.

In summary, these proposals make a modest reduction in the size of the Commons and will ensure that the principle of equality is given its proper weight in the commission's considerations, while ensuring that local factors can still be taken into account.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

91: After Clause 11, insert the following new Clause—
“Variation in limit of number of holders of ministerial offices
(1) The House of Commons Disqualification Act 1975 is amended as follows.
(2) For section 2(1) substitute—
“(1) The number of holders of offices specified in Schedule 2 to this Act (in this section referred to as Ministerial offices) entitled to sit and vote in the House of Commons at any one time, whether paid or unpaid, must not exceed 95 if the number of constituencies in the United Kingdom is 650.”
(3) After section 2(1) insert—
“(1A) If the number of constituencies in the United Kingdom decreases below 650, the limit on the number of holders of Ministerial offices entitled to sit and vote in the House of Commons referred to in section 2(1) must be decreased by at least a proportionate amount.”
(4) In subsection (2), after “subsection (1)”, insert “or subsection (1A)”.”

[Lord Falconer of Thoroton]

The amendment would reduce the number of paid ministerial officeholders in proportion to the reduction in the size of the other place. The text of the amendment is identical to an amendment moved in another place by Mr Charles Walker, the Conservative Member for Broxbourne. Before I come to the substance of the amendment, perhaps I may set out the relevant background.

Prior to the general election, the leaders of the Conservative and Liberal Democrat parties, now the Prime Minister and his deputy, made much of their determination to empower Parliament and enhance scrutiny and accountability of the Executive. In a lecture which many noble Lords will recall, delivered to the Institute for Government on 26 January 2010, Mr Nicholas Clegg declared:

“The Liberal Democrats believe this election is an opportunity to turn the page on decades of relentless centralisation within government. … I want to be clear: I am talking about a major reorganisation of Whitehall … As a result of our restructure the number of Ministers and government whips would be reduced from 119 to 73”.

Less than a fortnight later, on 8 February 2010, Mr David Cameron gave a lecture entitled “Rebuilding Trust in Politics” in which he said:

“We'd want to reduce the power of the executive and increase the power of Parliament even if politics hadn't fallen into disrepute … We’ve got to give Parliament its teeth back so that people can have pride in it again—so they can look at it and say ‘yes: those MPs we elect—they’re holding the government to account on my behalf’”.

I do not want to pretend that Amendment 91 would necessarily deliver our full aim. It is arguable that it is too timid to bring about the radical rebalancing that Mr Cameron and Mr Clegg had previously advocated. It does not reduce the size of the Executive; it merely stabilises the number of paid Ministers in proportion to the size of the House of Commons, from which the bulk of ministerial officeholders are drawn. It would do so by amending the House of Commons Disqualification Act 1975, which currently sets the maximum number of paid Ministers allowed to sit and vote in the other place at 95. If the House of Commons were to remain at its present size of 650 seats, the limit of 95 Ministers would remain. However, if the Government persist in their objective of reducing the number of MPs to 600, the amendment would ensure a pro-rata reduction in the number of paid Ministers to 87.

--- Later in debate ---

Amendment 91A (to Amendment 91) withdrawn.

[Lord Falconer of Thoroton]

My Lords, I am grateful for all the support around the House for Amendment 91. It was an amusing and vintage speech from the noble Lord, Lord Strathclyde. However, it is worth analysing two parts of it. First, he accepted the importance of the issue that the Bill proportionately increases the size of the Executive and decreases the number of those able to hold them to account. He said that we should not rush. No one is asking the Government to rush, because the reduction would occur precisely when the reduction in the number of MPs would occur.

Secondly, the noble Lord said that we could get round this by the PPS route. In the light of what the Government, and in particular Mr Clegg and Mr Cameron, have said, I would have thought that they would not do this because they are committed to the measure. He said that there was a “but”, and we thought that there would be something bankable. My noble and learned friend Lord Goldsmith asked what the Government were going to do about it. In this House, as in the other place, something is being looked for that would bring the thing forward. I have written down, “We will look at it”, and, “We will address the issue and do something”. It is very difficult to regard those assurances as having any reality.

As my noble friend Lord Rea said, our amendment would reduce the number of Ministers by eight. That is not many. It is hard to believe that it would affect the conduct of government—and my goodness, it would send a signal consistent with what has been said by Mr Clegg and Mr Cameron. It would be a very good thing for trust in politics if that could be done. I think that both the noble Lord, Lord Norton, and I will return to this on Report. I beg leave to withdraw the amendment.

Amendment 91 withdrawn.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

93: Clause 12, page 13, leave out lines 17 to 23 and insert—
“(2) A Boundary Commission may cause a local inquiry to be held for the purposes of a report under this Act where, on publication of a recommendation of a Boundary Commission for the alteration of any constituency, the Commission receive any representation objecting to the proposed recommendation from an interested authority or from a body of electors numbering one hundred or more.
(3) However, a Boundary Commission shall not be obliged to hold an inquiry if they believe that any objection received under the terms of subsection (2)—
(a) raises no substantive issues that might benefit from further comment or representation from other interested parties or individuals;(b) makes counter proposals which are prima facie out with the stipulations of the Rules for the distribution of seats contained in Schedule 2 to the 1986 Act.(4) A local inquiry held under subsection (2) must be completed within six months of the close of the consultation period referred to in subsection (1) above.
(5) Where a local inquiry had been held under subsection (2), a Boundary Commission may, after considering the matters discussed at a local inquiry, the nature of the representations received under subsection (1) and any other relevant circumstances, decide that a further local inquiry is not justified.
(6) If a further local inquiry is held, it must be completed within nine months of the close of the original consultation period referred to in subsection (1) above.
(7) In subsection (2) above, “interested authority” and “elector” respectively mean, in relation to any recommendation, a local authority whose area is wholly or partly comprised in the constituencies affected by the recommendation, and a parliamentary elector for any of those constituencies.””

[Lord Falconer of Thoroton]

My Lords, this is an important amendment about public inquiries. It is well known throughout this House and the other place what the Act does: it does not simply abolish the entitlement to a public inquiry; it prohibits a public inquiry, even though the Boundary Commission might consider that the most appropriate way in which to deal with issues that arise in relation to a proposed new setting of a boundary. Clause 12(1) inserts a new Section 5(2) into the 1986 Act which states that:

“A Boundary Commission may not cause a public inquiry to be held for the purposes of a report under this Act”,

and Clause 12(2) states that:

“Section 6 of the 1986 Act (local inquiries) is repealed”.

The old system of local inquiries is repealed, and a prohibition is imposed on the Boundary Commission concluding that it should have one.

We submit that this is damaging to the process and reduces its legitimacy in setting constituency boundaries. In our original amendment, we proposed to delete the subsection prohibiting public inquiries and to insert the wording relating to inquiries contained in the existing legislation. That would have put the Government at one end of the spectrum with their proposal to prohibit public inquiries and us at the other with a proposal to preserve completely the status quo. However, I believe your Lordships' House has expressed a very clear desire in recent days for both sides to work constructively for compromise on this Bill where there are differences of view. In that spirit of compromise and in an attempt to find common ground on this most important of issues, we withdrew our previous amendment and have tabled a revised version of our original amendment, which we believe addresses successfully the Government’s central concerns in relation to public inquiries. I am anxious to make it very clear at this point that we have genuinely sought to understand the Government’s reasons for abolishing and prohibiting inquiries, for it is only by seeking to understand their motivation that we can hope to come forward with a proposition capable of garnering broad support and encouraging the Government to accept public inquiries.

Mr David Heath, the Deputy Leader of the House of Commons, outlined the Government’s position during Committee stage in the other place last November. He stated:

“The Bill abolishes them for three major reasons. First, we simply must speed up reviews … The second reason why we are abolishing the public inquiries is that they do not achieve their purpose. They do not provide the boundary commissions with a good indication of local opinion to aid them in the process of drawing up constituencies ... The third reason for abolishing inquiries is that they rarely lead to significant changes in recommendations … The changes are frequently minor. For example, at the time of the fifth general review in England, only 2% of wards in counties where inquiries were held were moved between constituencies as a result”.—[Official Report, Commons, 1/11/10; cols. 729-30.]

I shall deal with the three points in reverse order. I submit that the weakest argument in favour of abolishing public inquiries at this time is that they rarely lead to significant changes. If we look at the last review in England, it is true that alterations were made in only just over a quarter of all parliamentary constituencies, but the context is all important. In every case where the Boundary Commission was proposing an increase or a decrease in the number of constituencies, its initial proposals were amended following a public inquiry. In many cases, such as Derbyshire, Sheffield, Greater Manchester, Merseyside and north-west London, substantial changes were made, and many times the Boundary Commission commented in the report that the recommendations of the assistant commissioner—the judicial officer who presided over the public inquiry—were improvements on their own.

The same is true in Scotland. A review of Scottish Parliament—not national Parliament—constituencies in 2007 based on very similar rules to those being proposed in this Bill led to the Boundary Commission recommending substantial changes to the electoral map. Your Lordships will recall the quote that I gave on the previous occasion from Sheriff Principal Kerr, who referred to the 10 substantial public inquiries that had had a significant effect on the drawing of the map of the Scottish Parliament constituencies. Thousands of objections and a rash of local inquiries resulted in major alterations being made to the original recommendations. As your Lordships have already heard, if the next UK boundary review takes place on the basis of the proposed new rules, alongside a reduction of 50 constituencies there will inevitably be widespread disruption to the electoral map of the UK. That prospect prompted Robin Gray, who was the former chair of the Boundary Commission for England, to say to the Political and Constitutional Reform Select Committee:

“Particularly with this first round I can see there is a real need for public inquiries particularly to enable those who are interested, political parties and others, to actually argue this through because these are going to be big changes”.

Those remarks were echoed by Professor Ron Johnston, who is generally sceptical about the value of public inquiries but who told the committee that the scale of the proposed changes,

“is an argument for having public inquiries this time because you are drawing a totally new map with new constituencies and nearly everything will be different … local people are going to be concerned because suddenly the pattern of representation is going to be very different from what they have been used to for a long time”.

Likewise, Mr Lewis Baston of Democratic Audit has commented: “The banning”—he was right to use that word—

“of public inquiries is a severe and deplorable downgrading of public participation and transparency in the boundary process”.

There is then a powerful, principled argument for retaining public inquiries, especially in the context of a proposal fundamentally to alter the composition of the constituencies that make up the other place.

None the less, it is plain that we should recognise that there is an argument for controlling properly the extent to which public inquiries are used. We have therefore revised our previous amendment and now propose that the Boundary Commission should not be obliged to hold a public inquiry even where the threshold for triggering an inquiry has been met and that threshold is either a representation from an interested authority—essentially, a local authority—objecting to the proposed recommendation or electors numbering 100 or more. Even if the Boundary Commission received those objections which satisfied the condition for holding a public inquiry, if it judged that the issues raised were not substantive or constituted counter proposals which would infringe the general rules on the distribution of seats—that is, if it was plain that there was no real issue or if there was a strict rule that prevented any change—it could conclude that there should not be a public inquiry. The Boundary Commission would therefore have the power to say that it would grant an inquiry only when the representation was of real value and the condition was satisfied. That would go a long way towards dealing with the concern that inquiries would be used unnecessarily.

I shall address the second of Mr Heath’s criticisms, the charge that inquiries do not provide a good indication of local public opinion. The allegation here is that they engage only political parties. That charge loses a great deal of its weight in the context of the next review, which, as has been repeatedly mentioned, is so significant. We have already witnessed huge—I use “huge” advisedly—numbers of representations made; for example, in relation to Cornwall and the Isle of Wight. Strong public interest was aroused in both those areas, in part because it was already known that the new rules would have a particular effect either on the Isle of Wight—the island would be split into two and joined in part to the mainland—or on Cornwall, where there is very strong feeling about crossing a boundary.

Once the provisional recommendations for boundary changes are published, we are likely to see very considerable objection to them. I remind your Lordships what the four secretaries of the Boundary Commissions have warned,

“the application of the electoral parity target is likely to result in many communities feeling that they are being divided between constituencies”.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, for introducing this amendment and for the very helpful and constructive spirit in which he proposed it. I also thank the other noble Lords who made important contributions to this relatively short but important debate.

The amendment seeks to introduce a public inquiry stage into the boundary review process, allowing the Boundary Commissions to hold a public inquiry where representations are received from any interested local authority or from 100 or more interested electors.

As we made clear in our response to the amendment of the noble Lord, Lord Lipsey, in the previous debate, and in our responses on local government ward boundaries and existing parliamentary constituencies, the Government's position has been that we are open to considering reasonable improvements to the process, provided that they do not compromise the fundamental principles of the Bill, and that still remains our position.

It is not a fundamental principle of the Bill that there should be no oral inquiries. The decision to end the process of oral inquiries, which appears in this Bill, was in fact taken on the basis of the evidence before us, when we came to consider the most effective consultation process for boundary reviews, which is what we are all trying to achieve.

Among the many contributions that we have heard not just this evening but over a number of Committee sittings, the case has been made tonight that local inquiries are an important safety valve because they allow everyone, as we might put it, to have their day in court. The noble Lord, Lord Brooke of Alverthorpe, made that very point. It allows people to have their say. My view is that this is perhaps the only objective of local inquiries: for which any credible argument can be mounted in their favour. Evidence and academic opinion indicate that local inquiries are perhaps far more effective in principle than in practice.

Local inquiries do not as a rule consist of the general public having their say on boundary proposals. Professor Ron Johnston—whose namechecks in these debates are now getting quite considerable; the noble and learned Lord, Lord Falconer quoted him—and his colleagues have concluded that the public inquiry process is “dominated by political parties”, describing the process as,

“very largely an exercise in allowing the political parties to seek influence over the Commission's recommendations—in which their sole goal is to promote their own electoral interests”.

Of course, he is perfectly right; political parties play a vital role in our democracy, and there is nothing wrong with parties contributing fully to the boundary review process. It is inevitable that they are going to do that, but if we are considering what would be gained by the noble and learned Lord’s amendment, which would restore oral inquiries in some form, we should not imagine that we would necessarily be giving the public a better chance to have their say. We would be looking to restore a potentially long process to which parties will send Queen's Counsel in their attempts to secure the most favourable outcome for their electoral prospects, certainly if history is anything to go by. It may be that the quasi-judicial nature of the local inquiry process could act as a disincentive to public participation by ordinary people who hope to have their say.

Our intention is that a written consultation process, with the existing period for representations extended from one month to three, will actually amount to a much more effective way to allow a level playing field for the general public who wish to have their say. Whatever the merits of the cases that are made for exceptions in this Bill—for example, for the Isle of Wight—I do not think that anyone could doubt that the people involved were very successful in making their voices heard through petitions, campaigns and websites.

There is little evidence, too, that local inquiries bring to light evidence that would not otherwise be considered. In an earlier debate in Committee, the noble Lord, Lord Snape, gave us an example of when a public inquiry had changed the boundary of the West Bromwich East constituency to reflect local geography, using a dual carriageway in place of a defunct railway line as a point of orientation. I am sure that that was a sensible change, and I wholeheartedly agree with the noble Lord that local knowledge is immensely important in these matters, but I do not see why that could not have been raised as part of an extended consultation period, as proposed by this Bill.

That is why changes that are made following local inquiries are often minor. At the fifth general review in England, for example, only 2 per cent of wards in English counties where inquiries were held were moved between constituencies as a result. Robin Gray, a former boundary commissioner already quoted by the noble and learned Lord, Lord Falconer, told the Political and Constitutional Reform Committee that Professor Ron Johnston was,

“absolutely right about the impact that public inquiries had on the Commission’s initial recommendations. In a lot of cases there was no change”.

The evidence given by the Boundary Commission for Wales to the Welsh Affairs Committee is also instructive on this point. In evidence to the Welsh Affairs Committee, the secretary of the Welsh commission said that,

“during the fifth general review, there were four issues that the Commission changed its mind on as a result of the consultation process. Perhaps I should say that, while these issues were raised in the local inquiries they were also raised beforehand in the written representations. In one sense, the Commission, before the local inquiries, had in its mind that modifications were required in the draft proposals”.

That brings me to the evidence of Ron Johnston before the Political and Constitutional Reform Committee, which was quoted by the noble and learned Lord, Lord Falconer. Professor Johnston, as we have acknowledged, has been much quoted in these debates. I think that anyone reading his evidence and his previous work will reach the same conclusion that the committee reached in its report that the result of Professor Johnston’s extensive research into the topic, and oral inquiries in particular, led him to,

“generally welcome the abolition of public inquiries”.

I stress that, not because somehow Professor Johnston’s view is the only one that counts, but because it dispels the theory that only we on the government Benches somehow hold the view that oral inquiries are not necessarily the best way to achieve the objective that we all want, which is a robust consultation process at which everyone, including those who are not able to appoint legal counsel on their behalf, can have their say on a commission’s proposals.

However, in the same session, Robin Gray stated that he believed public inquiries added value because they provided assurance that the,

“issues have been looked at and debated”—

perhaps an echo of the point made by the noble Lord, Lord Brooke.

One charge that cannot be laid against oral inquiries in the past is that they were anything less than thorough in this regard. This lengthy process, however, goes to the heart of one of the key principles in the Bill, which was identified by the noble and learned Lord when he moved his amendment. If no action is taken the boundaries in force at the next general election will be 15 years out of date, if we do not proceed to get a boundary review and report by October 2013, as set out in the Bill. We believe that it is simply not fair to electors—most notably all those who have come on to the register in the past 15 years. I believe that noble Lords opposite share our concern about this. Indeed, the noble and learned Lord, Lord Falconer of Thoroton, made that very point. I readily acknowledge that the amendment attempts to address it by limiting the triggers for inquiries and placing a limit on their duration, and I very much welcome how that has been presented by the noble and learned Lord.

It is also important that we listen carefully and reflect on what was said by the noble and learned Lords, Lord Woolf and Lord Goldsmith, not least on the question of judicial review—judicial review if you do not have oral inquiries and judicial review if you do have oral inquiries. There is an argument that the proposal in the amendment to give the Boundary Commission the decision on whether to hold an inquiry in each constituency where the requirements in the amendment are met would also lead to a risk of judicial reviews of the Boundary Commission’s decisions on that point.

Important issues have been raised. I have indicated not just in this debate but in others that the principle should be that reviews must be conducted more quickly so that the pattern of representation in the other place represents the reality of where electors live now, not of history. That goes to the heart of fairer and more equally weighted votes throughout the United Kingdom, which is a core objective of the Bill. We will obviously want to consider the noble and learned Lord’s concerns on the issue of judicial reviews—as I have said, if you have them or if you do not have them. Subject to meeting the key principle, which I have indicated, I am content to take the noble and learned Lord’s amendment and consider the thinking behind it to see whether it offers a way in which the advantage that I acknowledge an inquiry can provide—a sense of “a day in court”—can be retained. On that basis, I urge the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

I am very grateful for a very positive response. I shall deal with a few points so that people can read them in Hansard.

First, the noble and learned Lord is right to say that Professor Johnston, who is an expert in this field, has expressed scepticism from time to time about the public inquiries in some contexts, but he has said that the scale of the proposed changes in the first boundary review is an argument for having public inquiries this time because you are drawing a totally new map. Without being unfair, or selecting out of context, Professor Johnston is in favour in this context. He also referred to Robin Gray, the former chairman of a Boundary Commission, who has a rounded view of public inquiries and recognises problems with them. Robin Gray says:

“Particularly with this first round I can see there is a real need for public inquiries”.

Therefore, the two witnesses that the noble and learned Lord cites both unequivocally favour public inquiries in this context.

Secondly, the way that this amendment is put is not as an alternative to written submissions, because it accepts that in the appropriate case written submissions would be sufficient. I draw attention to subsection (3) in the amendment, which says that the Boundary Commission can say no to a public inquiry if it raises no substantive issue that might benefit from further comment or representation from other interested parties or individuals. So the Boundary Commission would have to decide that there is some specific benefit in an inquiry. In relation to the timing, we have dealt with that already.

It is, with respect to the noble and learned Lord, difficult to see—and I am not going to press this too hard—why an inquiry should not be in the armoury in the appropriate case. He mentioned the fact that it is often about political parties vying in their own political interest. I am sure that is true. One of the things that we have often discovered in our system is that hearing two competing parties often produces the right result more easily through oral representations than through any other process. It is the process—without in any way saying that this should be exactly the same as a court process—that many of our courts have found the most effective way to come to the right answer.

I very much hope that when the noble and learned Lord considers it, he will come back and either suggest how it might be improved or accept the amendment. On the basis of the helpful and constructive commitment to consider the amendment, I beg leave to withdraw it.

Amendment 93 withdrawn.