Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 17th January 2011 Lords Chamber

[Lord Strathclyde]

Noble Lords have complained for some time that there has been no contribution from this side of the House. I have heard nothing new said by noble Lords opposite over the course of the past four or five speakers, so I wonder whether it would be helpful to the House if I gave an authoritative view from the Front Bench as to my thoughts on the amendment. I am utterly clear as to the views of noble Lords opposite on the amendment, so I will now give a comprehensive reply.

[Lord Falconer of Thoroton]

My Lords, the noble Lord the Leader of the House intervened to ask whether that would be helpful to the House. I have a sense on this side of the House that a considerable number of Members want to speak. The normal way that we deal with it here is that the Minister responds, but not conclusively. I think that it would be best if we heard from this side of the House, and if then noble Lord the Leader responded, because that is the normal way that we do it.

[Lord Strathclyde]

I am grateful to the noble and learned Lord for telling us how we normally do business. It is not normal for us to spend two and a half hours on an amendment—this one—and to have spent three hours on the previous amendment. If we are talking about normality, I rather wish that this whole debate had been conducted in a more normal way—

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[Lord Wills]

To that very point, I have been trying to get in to speak to contribute something new to the debate, which is something of which the noble Lord will not be aware. That was my experience of dealing specifically with these issues and the process for dealing with them when I was the Minister responsible for them. He will not have known this, because obviously, it is a convention that the previous Government’s dealings are not passed to the new Government, so this would be new. I wonder whether he would allow me to share that information with the House before he commences his remarks.

[Lord Falconer of Thoroton]

I think that there the sense that we should go on for a bit. Some noble Lords opposite are shaking their heads; there is a very strong sense from behind me that we should go on—the norm should be followed.

[Lord Strathclyde]

Perhaps I should not have given way to the noble Lord, Lord Wills.

This has been a great debate. I can tell the House—

[Lord Wills]

My Lords—

[Lord Falconer of Thoroton]

My Lords—

[Lord Strathclyde]

No, I am no longer giving way. I have the Floor and I am not giving way to the noble and learned Lord. We cannot carry on if the noble and learned Lord will not give way. I was asked to give way; I will not give way to the noble and learned Lord. He can speak after I have spoken, when I give way to him.

The Committee will be interested to know that, a few hours ago we passed a landmark where we in this House have spent twice the number of hours in Committee on the Bill as they did in another place, and we still have not completed the Committee stage. The House of Commons debated the Bill for five full days in Committee, and a further two days for Report and Third Reading. Moreover, the Government made use of their ability to programme business to ensure that debate at Report was focused on the provisions which were given relatively less scrutiny in Committee, including what are now Clauses 8 and 11, which were previously Clauses 6 and 9 respectively. So to those noble Lords who said that these issues have not been debated, that is not quite the case.

What we have seen tonight is worth while and instructive to anyone from outside coming to see how the House of Lords now does its business. This is the last hurrah of the dinosaurs in the Labour Party seeking to defend the status quo. All of them wish to see a House of Commons with 650 Members, completely denying that people want fewer politicians. If there has been one growth industry in the past 13 years, it has been in the number of politicians. They have more in Scotland and Wales, they wanted regional government in London, and now they do not want to see a reduction in the number of Members of the House of Commons.

[Lord Falconer of Thoroton]

In the light of is condemnation of extra politicians, why have this Government made so many new Peers?

[Lord Strathclyde]

That is rich coming from the noble and learned Lord, who was one of Tony Blair’s closest advisers. Tony Blair made more Peers more quickly than any Prime Minister ever, including Lloyd George

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[Lord Falconer of Thoroton]

We did not seek to reduce the size of the House of Commons on the basis that there were too many politicians. At least we were not hypocritical.

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Moved by

[Lord Falconer of Thoroton]

That the House do now resume.

[Lord Falconer of Thoroton]

My Lords, I make this application with a view to the House adjourning. Noble Lords will know that the Companion says in paragraph 3.01:

“The House usually sits for public business on Mondays and Tuesdays at 2.30 p.m., on Wednesdays at 3 p.m. and on Thursdays at 11 a.m. The House also sits on Fridays at 10 a.m. when pressure of business makes it necessary. It is a firm convention that the House normally rises by about 10 p.m. on Mondays to Wednesdays, by about 7 p.m. on Thursdays, and by about 3 p.m. on Fridays. The time of the meeting of the House can be varied to meet the convenience of the House”.

It says that where there are to be changes there should be consultation through the usual channels. We have now had a very exceptional move by the House, as the Lord Speaker made clear in her warning to the noble Lord, Lord Trefgarne, before he moved his Motion. So exceptional was it that the consequence was that the Front Bench on this side did not get an opportunity to respond to either Amendment 59 or Amendment 60. If that were to be repeated there would, in effect, be a guillotine on debate in this House. I am happy to see the former Chief Whip Lord Hesketh nodding. The consequence would be that what makes this House exceptional—namely that there can be indefinite debate, particularly on constitutional issues—would be lost. I respectfully suggest that the House should now adjourn. That is why I have moved this Motion to resume. It is far better that we, as a House, keep our reputation—

[Noble Lords]

Oh!

[Lord Falconer of Thoroton]

Noble Lords might laugh but it is appropriate that we do things in the right and proper way. This House exists properly to scrutinise business. The prospect of there being proper scrutiny of legislation deep into the night, then again tomorrow, then again on Wednesday and then again on Monday, in my submission, significantly undermines the standing of the House. I therefore invite the House to resume. It would be the sensible thing to do and would avoid the sense that we are no longer concerned about the constitution but are properly concerned instead about the change in the circumstances in the House. Given that there is a Liberal Democrat and Conservative coalition, unlike in my previous time in the House it is now possible to ram things through without proper debate. Indeed, the coalition has just done so. That would never have happened when there was not—

[Lord Greaves]

There is a certain amount of this that I can listen to, but after a while I find that I cannot listen to it any longer without intervening. The Committee started at three o’clock. It is now 11 minutes past midnight. That means that the Committee has spent the best part of eight hours considering two amendments. If the noble and learned Lord believes that that is ramming things through, his brain does not work in the same way that mine does.

[Lord Falconer of Thoroton]

I have always suspected that my brain does not work in the same way as that of the noble Lord, Lord Greaves, and I have always regarded it as being to my credit that that is the position. We have debated two amendments over eight hours—four hours each. The first concerned whether we should reduce the size of the House of Commons from 650 to 600. I regard that as an important constitutional issue. The second amendment that we debated before the noble Lord, Lord Trefgarne, brought the debate to an end was whether the size of the House of Commons should be fixed by an independent commission or a Speaker’s Conference. The noble Lord, Lord Greaves, whose brain does not work like mine, or, I suspect, like anyone else’s in the House either, might not think that those are important things to debate but I do.

[Lord Greaves]

The point I am attempting to make is not that the time that has been used up on these two amendments is excessive, although many Members around the House believe that it constitutes an abuse of the conventions of this House. The point I am making is that this is not a case of ramming things through.

[Lord Falconer of Thoroton]

Therefore, the noble Lord, Lord Greaves, thinks that the time involved is not excessive. I do not know how he voted just now. I assume that he voted on our side in that respect if he did not think that the time was excessive. It is time for the House to stop this, resume and go back to considering this measure in the normal way. That is what has made the House so successful over the past 13 years.

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[Baroness O’Cathain]

I wish to ask the noble and learned Lord, Lord Falconer, whether he is prepared to offer an apology for the personal abuse that he levelled at the noble Lord, Lord Greaves. We have listened to Members of the House and the problem is that the noble and learned Lord deliberately made fun of the noble Lord, Lord Greaves. Not only was it abusive to him and upsetting to us, it did nothing for the conduct and behaviour of this House. I trust that the noble and learned Lord will feel duly ashamed when he reads Hansard tomorrow.

[Lord Falconer of Thoroton]

Of course, I apologise immediately to the noble Lord, Lord Greaves. I did not mean to cause him any upset. I agree completely with the noble Baroness, Lady O’Cathain. I was teasing and mocking him and I went too far. I unreservedly apologise.

[Lord Greaves]

I suppose that I ought to thank the noble and learned Lord for that apology. I can say to him and to the House that it takes a great deal to worry me. I see the noble Baroness, Lady Farrington, having a good laugh. If noble Lords, in addition to the noble Baroness, and other former members of Lancashire County Council knew the abuse I got there, your Lordships cannot touch it.

[Lord Falconer of Thoroton]

That is what I thought, but I was obviously wrong.

Amendment 61

Moved by

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 20th December 2010 Lords Chamber

[Lord Campbell-Savours]

My Lords, I see that a number of new Members are attending our debate today, and I draw attention in particular to the noble Lord, Lord Tebbit, being in his place. While he has been away—no doubt he has been in the House, but has not been attending our debates—statements have been made that should be drawn to his attention, because they might make him as angry as they made me. A statement made last week in the House was the subject of much discussion but the newspapers and media outside the House have not picked up on it. I refer to my intervention to the noble Lord, Lord Strathclyde, which has caused a lot of concern, certainly among those who heard it. I asked him:

“What happens if only 13 per cent of the registered electorate vote in favour of the change in the referendum question? Will that 13 per cent, which is one in eight people in the country, be taken as the basis on which we can make this huge constitutional change?”.

He replied:

“My Lords, under the terms of the Bill, yes”.—[Official Report, 15/12/10; col. 717.]

I do not believe that Conservative Members of this House realise what is going on. They are not attending this debate and they very rarely speak, apart from two former Lord Chancellors. I do not believe that Conservative Members really know what is happening.

[Lord Falconer of Thoroton]

Although my noble friend may not realise it, I was, in fact, a Labour Lord Chancellor, not a Conservative one.

[Lord Campbell-Savours]

My Lords, forgive me; I did not mean that. I meant two former Chancellors of the Exchequer and the noble Lord, Lord Hamilton. The reality is that people do not know what is going on.

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[Lord Foulkes of Cumnock]

In the West Country, that may be rightly so, but where I come from the term is not thought of in quite that manner. I am very glad to see the noble Lord here. Having served with him in the House of Commons, I have great respect for him, especially as so many of the reforms in the House of Commons came from him. However, my recollection is that the reforms that he introduced in the House of Commons were brought in after careful thought, after much discussion and after cross-party deliberation—unlike those in the Bill. No doubt whoever is replying to the debate on the amendment will bear that point in mind.

My noble friend Lady Hayter of Kentish Town has raised a very important point. Incidentally, I thought that it was with great ingenuity that the noble Lord, Lord Elystan-Morgan, brought in the whole question of thresholds, which we have previously debated. I hope that at some point—I do not know whether that will be now or later this evening or on Report—we will be permitted to vote on the matter in Amendment 44A, because it is important that we should consider the question of thresholds. However, on the more important issue today concerning the result in the four countries that comprise the United Kingdom, I think that my noble friend Lady Hayter has done this House a great service in moving Amendment 44.

[Lord Falconer of Thoroton]

My Lords, I welcome the noble Lords, Lord St John, Lord Tebbit and Lord Roberts to this debate, which has, as ever, been a riveting discussion. I note two points in particular: first, that the noble Lords, Lord Tebbit and Lord McAvoy, appeared to agree on practically everything, excepting a marginal disagreement on the vote on joining the European Union; and, secondly, that the noble Lord, Lord Grocott, with a straight face described himself as a moderniser.

In Amendment 44, my noble friend Lady Hayter proposes that, in order for the referendum vote to effect a change in the voting system, there must be a yes vote in all four countries of the United Kingdom. As such, this is another debate on whether special barriers should need to be overcome before the voting system can be changed. In looking at the Bill, one of the roles of the House of Lords must be to ensure the correct constitutional proprieties. Whether one looks at the proposals in the Bill that was introduced before the general election or the proposals in this Bill, there is a constitutional piece of trickiness going on. Neither House of Parliament has said that it wants AV, so the proposal has not been endorsed by Parliament, in contradistinction to the proposal on membership of the European Union, which was endorsed by Parliament, and the devolution changes, which were endorsed by Parliament in 1999.

[Lord Anderson of Swansea]

Does my noble friend also accept that no party wants AV? Given that the Conservative Party does not want AV, the AV proposal of the then Labour Government was rejected in the general election and the Liberal party wants another form of representation, no party is in favour of AV either.

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[Lord Falconer of Thoroton]

That appears to be the position. The proposal does not have the support of Parliament and, as my noble friend Lord Anderson has pointed out, does not have the support of any individual party.

Suppose that, in a referendum with no threshold where implementation was compulsory, the turnout was 40 per cent. In that case, a result could be reached in which only 20 per cent of the country had voted in favour of AV. When we debated—last Wednesday, I think—my noble friend Lady Hayter’s Amendment 43, we heard how that proposal for a 25 per cent threshold could have produced a situation in which the change was effected if only 13 per cent of the population voted in favour of the proposition. Most countries in the world—sensibly, in my view—make it harder to change the constitution than to make other sorts of legislative change. The Government’s extraordinary proposal could lead to a change following a tiny proportion voting yes. The noble Lord, Lord Strathclyde, with characteristic robustness and honesty, took pleasure in the fact that, if 13 per cent voted in favour of the change in the voting system, the result could indeed be that the voting system should change. The only occasion when any sort of threshold has been required for a referendum that would have changed our constitution was on the only previous occasion on which implementation of the referendum decision was compulsory rather than indicative. I was not in the House of Commons in 1978 or 1979 but many who are here were, and all of them who have spoken have said that the Member for Islington South, Mr George Cunningham, persuaded people on a free vote that, when changing the constitution under such a proposal—which people thought might lead to the break-up of the United Kingdom—there has to be legitimacy. On the face of it, the effect of the Government’s proposal is a manoeuvre that could lead to a change in our constitution.

However, there is no point in debating whether Mr Nick Clegg is correct in saying that the proposal is the most important change since 1832. I do not think that anyone doubts that the proposal is an important change, but if the public think that it is the wrong change, they will not like it and their distrust of Parliament will increase. Our role in the Lords is to make the Commons think again, particularly in relation to the constitution, if we think that they have got it wrong. Our debate on the issue last Wednesday—I single out in particular the speech by the noble Lord, Lord Lamont—demonstrated the constitutional trickiness of the proposal. The fact that we could end up with Parliament not approving—and, indeed, probably being against—the proposed system but a tiny amount of the population being persuaded to vote for it shows that something has gone wrong in the way that we are dealing with the issue.

The proposal of my noble friend Lady Hayter is that, for the referendum to have effect, every country in the United Kingdom must vote yes. I tend towards the view that that is not the right answer because, in my view, we should do everything to promote coherence in the United Kingdom. That means that, where we are voting on a national voting system, implementation of any referendum should be guided by what the national vote is. Therefore, I would reject that approach. However, I am extremely keen that whoever replies from the Front Bench on behalf of the coalition should deal with the points that I have made. As the noble Lord, Lord Williamson, said, we debated the issue late at night last Wednesday and this is a point of real importance in relation to the constitution.

Finally, I want to pick up on what my noble friend Lord Rooker said about there being a legal and binding agreement between the members of the coalition not to agree to any outcome threshold. Of course, he is wrong about there being a legal agreement, because we are talking about politics here. I am glad to see the noble Lord, Lord Roberts, has returned for the end of the debate. It may be that, having heard the debate, the noble Lord, Lord Strathclyde, or the noble and learned Lord, Lord Wallace of Tankerness—whichever of them is answering the debate—will think that there are things more important than simply the terms of an agreement that was reached over a few days. I have in mind in particular a change to our constitution, which people of this country respect.

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

My Lords, we have certainly had a longer debate than I had imagined when I first saw this amendment, but it has been useful and I am grateful to the noble Baroness for having introduced it. When I first saw it, I thought it was possibly imaginative, possibly a little bizarre. I am not sure that I came to a conclusion as to which it was during the course of the debate but I became convinced it was flawed. The noble and learned Lord, Lord Falconer of Thoroton, agreed with me on that, as did other notable noble Lords from the other side, including the noble Lords, Lord Lipsey and Lord Grocott, and, I think, the noble Lord, Lord Howarth of Newport, as well. I therefore very much hope that, when it comes to deciding what to do with it, the noble Baroness will withdraw her amendment.

I was not planning on being drawn into a larger debate on thresholds. We discussed it well the other night. It is, however, worth making one or two points. The best suggestion to come out of this debate was that the noble Lord, Lord Grocott, and my noble friend Lord Tyler should get together over the Christmas period and discuss whether there could be some areas of agreement between them. If I may speak for my noble friend Lord Tyler in his absence, I am sure he will wish to take up the noble Lord’s invitation, and I hope to hear the good results from that discussion.

I hope the House, including my noble friend Lord Lamont and others, do not think that I do not understand why imposing a threshold might appear initially attractive. On the surface, it may seem to offer an extra layer of reassurance, particularly if the change that is being put to the vote is one that you personally do not favour. However, it is the Government’s firm view that if people want change—if a simple majority of those who turn out to vote want change—we should not deny them this by imposing artificial barriers. We have not specified a voter turnout threshold because we want to respect the will of the people who do vote in the referendum without conditions or qualifications.

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[Lord Strathclyde]

I very much agree with what the noble Lord said about the union, and with other noble Lords from all sides of the House who made exactly the same point. That is why we would not want to encourage this amendment in any way at all.

We will come back to thresholds on Report; this is an important debate to have. There was no threshold in 1975 in the only national referendum that we have held. The Opposition’s ardour for thresholds did not apply in 1997 and 1998 in their four referendums in Scotland, Wales, Northern Ireland and London. There has been no proposal from any major political party for a threshold in the referendum in Wales next March that would extend the powers of the National Assembly. Most tellingly, when AV was proposed in the Bill before Parliament, there was no threshold in that either.

[Lord Falconer of Thoroton]

I think it is right that the only time there was a threshold was in the compulsory referendum in 1978, which meant that Parliament would have no opportunity to consider whether there was a very low turnout.

[Lord Strathclyde]

The noble and learned Lord makes a good point, but the referendum that we are dealing with today is very simple; it is yes and no on changing the electoral system. The referendum that the people of Scotland and Wales faced in 1978 was entirely different and raised much more fundamental issues of constitutional propriety and the setting up of different Parliaments and Assemblies in both those countries.

[Lord Strathclyde]

I really do not agree. There has been much discussion on changing the electoral system for as long as I have been of voting age. It has been discussed many times in and outside Parliament. People are very well versed on this. As for this new convention that the noble Baroness has introduced, when the role of Lord Chancellor was scrapped, it was done on the back of an envelope—in a press release. There was no consultation or discussion whatever, even with the judiciary. It led to the resignation of the then Lord Chancellor, to be succeeded by the noble and learned Lord, so this is an entirely new convention. It may be very desirable, but it is new.

[Lord Falconer of Thoroton]

The noble Lord is so right; and the consequence was that the House, unprecedentedly and contrary to convention, referred that Bill to a Select Committee instead of granting it a Second Reading. We spent 18 months considering it, and although I kicked and screamed at the beginning, I said at the very end that the 18 months had been really worth it to make it a much better Bill. Please learn from that experience.

[Lord Strathclyde]

My Lords, I am glad that if the noble and learned Lord ever finds himself in government again he will not make the same mistakes.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 15th December 2010 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, we are debating Amendment 43, which was tabled by the noble Baroness, Lady Hayter, and proposed a turnout threshold of 25 per cent. We are also debating Amendment 44B from my noble friend Lord Grocott, which proposed a 50 per cent turnout threshold. I thought that we were not debating Amendments 44A and 45A from the noble Lord, Lord Elystan-Morgan, which propose 40 per cent, but the noble Lord has, no doubt tempted by the terms of the debate, put forward issues in relation to it. However, we will not come to votes in relation to those amendments until Monday, so it is entirely a matter for the noble Lord, Lord Elystan-Morgan, as to what he says then. We are not debating Amendment 43A, from my noble friend Lord Rooker, which says the vote has to be 1 million votes ahead, and we are not debating Amendment 44 from the noble Baroness, Lady Hayter, which says that there must be a majority in each kingdom of the United Kingdom.

This is an important constitutional debate. I do not go down the route that the noble Lord, Lord Lawson, tempts us down, which is to say that AV is such an appalling system that we really need something very substantial before we change to it. We have to look at this issue on the basis of it being a major constitutional change. Our constitution has developed over the past three decades, whereby a substantial majority in the House of Commons is not regarded as adequate for substantial constitutional changes such as staying in the European Union, devolving powers to Scotland and Wales and, now, fundamentally changing the voting system. That approach to the constitution is reflected by practically every developed democracy in the world whereby something more than the normal vote in Parliament is required. If that approach is the right one, and I sincerely believe that it is the right one—and it is plainly an approach shared by the coalition Government, who have rightly regarded a referendum as necessary before the change is made—we need to dig a little deeper to see what sort of referendum is required to legitimise the change. I emphasise “legitimise”, because what is being required is something that makes the public accept that a significant change in our constitution has legitimacy.

If one looks at the sorts of turnout that one might reasonably expect if the turnout reflected other sorts of votes, one gets an indication of what sort of turnout one might get in this case. Approximately 20 per cent of the electorate in the referendum will also vote in the Welsh Assembly or Scottish Parliament elections; roughly the turnout for those is about 50 per cent, so 20 per cent of 50 per cent equals 10 per cent of the population voting. Approximately 60 per cent will vote in local authority elections, where the average turnout is 34 per cent, which produces approximately 20 per cent of the population. Some 20 per cent of the population will not vote on anything other than the referendum. It is not unreasonable to suppose that the turnout in relation to those voting only in the referendum could be as low as 20 per cent, which would produce a turnout of 5 per cent of the population. If one adds 10 per cent to 5 per cent to 20 per cent, you get 35 per cent. So on the basis of reasonable estimates by reference to other sorts of elections, you get 35 per cent of the population voting in this referendum. If it was close, that would mean that maybe as few as 19 per cent of the population would have voted for the change. The purpose of having a special rule about major constitutional change—and I have not heard anyone dispute that this is major constitutional change—is that there should be some special procedure to give the change legitimacy.

The idea that 19 per cent of the electorate, voting in favour of the change, gives the degree of legitimacy that is required seems to be wrong. In those circumstances, it looks pretty obvious that something else is required other than simply a referendum. The importance of having legitimacy is that we do not want to enter a phase in which our constitutional system of voting changes every time there is a change of government. If, therefore, there is to be a change—I do not need to quote Nick Clegg saying that this is the most important change since 1832—it is obvious that there has not been a change in our voting system for well over 100 years. This will inevitably have an effect on the make-up of the House of Commons. People will regard the system chosen as being a significant contributor to who won the election.

How do we deal with the issue of legitimacy in those circumstances if simply—

[Lord Rennard]

The noble and learned Lord is a very distinguished member of the previous Government, who brought forward the Constitutional Reform and Governance Act. It was carried through the other place before the general election with provision for a referendum on the alternative vote to be held before October 2011. It did not provide any provision whatever for a threshold. Will the noble and learned Lord tell us why that was not considered appropriate by his Government? On the issue of legitimacy, he suggests that it is terribly important that there should be enough people voting to justify anything. Does he recall that that Government in 2005 were elected with 35 per cent of the vote of British people on a 61 per cent turnout? In other words, only about 21 per cent of the electorate voted for that Government. Does he consider that that was legitimate?

[Lord Falconer of Thoroton]

First, I was not a member of the Government that put it forward. I think they were wrong not to have a turnout threshold in relation to it. Secondly, 35 per cent voting for the Government is approximately double the number that could vote for a change in the constitution. The critical point that I am making is that there is not a system in the world in a developed democracy that does not require something out of the ordinary before you make a change in the constitution. Why is that such a common provision right throughout democracies? It is because people understand that to make such a permanent change is much more important than changing a Government—you can throw the Government out in five years or four years, or in our system, even in two and a half years if they lose authority. You are stuck with the change for a long time. So please, on the Benches over there, think not about the result you want, but about what sustains our democracy. A change that comes about through 19 per cent supporting it may not be a change that has legitimate support. So our position—

[Lord Maclennan of Rogart]

Does the noble and learned Lord not accept that in the history of constitutional development in this country we have seen change—and we have seen progressive change. I ask him to listen to what I am saying.

[Lord Falconer of Thoroton]

I apologise. I should have been listening but I was distracted by fabulous information coming from the noble Lord, Lord Bach.

[Lord Maclennan of Rogart]

Perhaps I should make the point again, as briefly as I can. Does he not recognise that constitutional change and democratic legitimacy have been achieved in this country without public expressions of support at referenda? That history is far longer than is the history of referenda and there is very little precedent historically for referenda. No one considered that votes for women was not legitimate because it was decided by Parliament. Parliament does not cease to be sovereign because there is a referendum. That is true in respect of Europe and of devolution. It is also true in respect of the voting system. Surely the noble and learned Lord recognises that if there is a referendum result which does not give legitimacy it remains open to Parliament to react to that.

[Lord Falconer of Thoroton]

I have two points—I apologise to the noble Lord.

[Lord Maclennan of Rogart]

Parliament is still capable of introducing further legislation to take account of what has happened. That is not without precedent.

[Lord Falconer of Thoroton]

I have two points on that. First, the introduction of the referendum in our constitution effectively dates back to the European referendum. Once you have put the referendum into your constitution, it is very hard to go back on it—a point accepted by all political parties on this issue. Secondly, the position of saying, “Well, you can always change your mind if the level of support is not enough” would be legitimate if this were not a compulsory referendum, which requires the Minister to introduce the system of AV. If I may say so, with respect to the noble Lord, Lord Maclennan of Rogart, what this indicates is his instinctive acceptance that there are inevitably limits below which you cannot go.

Suppose the position was that only 25 per cent of the country voted in a referendum and that there was a majority of 12.6 per cent. Would anybody sensible say that that was sufficient justification? If this had been a sensible arrangement, Parliament would have kept control of that, but no: it was decided by this House and by the other House that it should be a compulsory referendum. In those circumstances, it is right for Parliament to address what a satisfactory turnout on it is. One of the things that we are doing in this House is exploring what the effect of the changes in the constitution has been, one major change being the introduction of referendums in order to make major changes to the constitution.

My view on this, a view which I express on behalf of my party, is that having rejected the idea of an indicative referendum it is for this House to address what, if any, threshold there should be. There should be a threshold because, in my view, low figures of the sort that I have indicated are not satisfactory. I am much encouraged in this by the support from the noble Lord, Lord Williamson, on the Cross Benches, and from the noble Lords, Lord Lawson and Lord Lamont. I did not realise that my noble friend Lord Bach had been chairman of that Labour Party constituency party but I now know why, for all those years, the noble Lord, Lord Lawson, was so sharp. My noble friend Lord Bach kept him so sharp in Blaby.

I ask the noble Lord, Lord McNally, to reflect on the need and reason for a referendum. Will he explain to the House what he would do if there was a 25 per cent turnout, which is perfectly conceivable, with a very small majority in favour of a change to the alternative vote system? Does he regard a 12.6 per cent vote in favour of that change as something that gives it legitimacy? Will he please not say that he is not going to go into hypotheticals? He has got to deal with the issue. One of the problems and frustrations that I think the whole House is feeling, with the possible exception of the noble Lords, Lord McNally and Lord Strathclyde, and the noble and learned Lord, Lord Wallace of Tankerness, is the refusal on the part of the government Front Bench to engage with any degree of depth on the constitutional issues that the Bill raises.

Everybody agrees that the threshold issue is important. I will not support my noble friend Lady Hayter’s amendment because it is obvious that 25 per cent is too low a threshold, but it may well be that we shall support the thresholds in the other amendments. I invite the noble Lord, Lord McNally, to give us some idea of the Government’s thinking on this and how they say that the referendum could give legitimacy.

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[Lord Lawson of Blaby]

If I may, while my noble friend is having a well earned rest, let me say that it was not a whipped vote on the Conservative side. It was a free vote and we were influenced in the way that the noble Lord, Lord Rooker, described. As an indication that it was a completely free vote, my noble friend Lady Thatcher, the Prime Minister at that time, did not take part in the Division. She did not vote—or did she? I do not recall.

[Lord Falconer of Thoroton]

She was Leader of the Opposition.

[Lord Lawson of Blaby]

Sorry, she was leader of the party, but she did not take part. It was a completely free expression of opinion based on principle.

--- Later in debate ---

[Lord Strathclyde]

Up to a point, because I am going to argue in a moment that a threshold will encourage abstention and that therein lies a danger. Also, the Constitution Committee of this House recommended that the presumption should be against voter turnout thresholds in referendums.

[Lord Falconer of Thoroton]

It says, though, that that may be different in relation to serious constitutional issues.

[Lord Strathclyde]

Well, I will have to check—not that I disbelieve the noble and learned Lord, but I will have to reread my well thumbed copy of that report.

We have not specified a voter turnout threshold, because we want to respect the will of the people who vote in the referendum, without conditions or qualifications. These amendments seek to specify a minimum turnout threshold so that, if less than 25, 40 or 50 per cent of those eligible to vote in the referendum cast a vote, the result will be voided.

Specifying a threshold for voter turnout can effectively make every abstention a no vote. People may abstain from voting in a referendum for any number of reasons, such as ignorance, apathy or ambivalence. It does not seem appropriate to regard such people as effectively having expressed a preference. In addition, a threshold may create an incentive to abstain from voting for those who favour a no vote. This cannot be right.

--- Later in debate ---

[Lord Lawson of Blaby]

If my noble friend will allow me, let me say that it is not as simple as that. It is not the case that an abstention will count as a no vote. It might well be the case that, if there is a considerable body of opposition to the change, it will win if its members vote, but if they stay at home and do not vote, that will allow the people who vote yes to win if they get over the threshold. So it is by no means as simple as my noble friend said; in fact, what he said is totally wrong. It might be that in certain circumstances it would help the no case, but in other circumstances it would help the yes case. That is the truth of the matter and people will therefore be inclined to vote if they understand what they are voting about.

[Lord Falconer of Thoroton]

Just to follow up on that important point, what is the evidence that the noble Lord, Lord Strathclyde, is relying on?

[Lord Strathclyde]

It is obvious that if there is a threshold on turnout and you encourage people not to vote, the threshold is not reached.

[Lord Tyler]

My Lords, the noble Lord, Lord Campbell-Savours, seems to have shouted, got up and sat down. The issue here is simple arithmetic. Suppose that the amendment in the name of the noble Lord, Lord Grocott, went through and 45 per cent of the registered electorate voted yes while 4 per cent—I do not think that it will quite so dramatic, but who knows?—voted no. The noes would win because only 49 per cent of the electorate would have turned out. I am very sorry to have to disagree with my noble friend Lord Lawson, but my noble friend the Leader of the House is right: if you do not vote, it is a no vote.

[Lord Falconer of Thoroton]

I do not think that the noble Lord, Lord Tyler, has been listening to his noble friend Lord Lawson, who is saying that sometimes a threshold will encourage people to vote yes. The question that I am asking the noble Lord, Lord Strathclyde, is: what does the evidence point to?

[Lord Strathclyde]

My Lords, we have had only one national referendum. What evidence there is exists because it is either common sense or, as my noble friend Lord Tyler has worked out, a matter of simple mathematics. Interestingly, the noble and learned Lord, Lord Falconer, did not say that my noble friend Lord Tyler’s example was wrong. In fact, he was quite right; in his example, where 45 per cent vote yes and 4 per cent vote no, what happens is that the answer is no. Where is the justice in that? I am sorry that that is hypothetical.

[Lord Falconer of Thoroton]

The issue, as posed by the noble Lord, Lord Lawson—correctly, in my view—is whether or not the threshold encourages votes. There have been referendums not only in the United Kingdom; there have been referendums in a whole range of countries. I presume that the Government have done some research on this before responding on the issue of thresholds. What does that research show? The noble Lord, Lord Strathclyde, is shaking his head, looking bewildered and saying, “No, I can’t tell you”. He is saying to me that he regards the idea that the Government would have done any research into this as preposterous.

[Lord Rennard]

Will the noble and learned Lord tell us what research his Government did in the previous Parliament on this very issue before introducing their Bill?

[Lord Falconer of Thoroton]

I was not in the Government at the time. The noble Lord, Lord Tyler, is pointing at me in a rather aggressive way. I was not in the Government then, but the noble Lord, Lord Strathclyde, has access to a range of excellent civil servants who will tell him what the research is. I take it from the remarks that the noble and learned Lord, Lord Wallace of Tankerness, is making from a sedentary position that the Government have not troubled to do the research. He can correct me if I am wrong.

[Lord Goodhart]

My Lords, is it not an extraordinary situation that the effect of what the noble and learned Lord is saying is that, if 45 per cent of the voters voted yes and 4 per cent voted no, the noes would win, but if 45 per cent voted yes and 40 per cent voted no, the yeses would win?

[Lord Falconer of Thoroton]

That may be dealt with by the level of the turnout requirement.

[Lord Grocott]

The Liberal Democrats, suddenly energised, have identified a problem that is clearly troubling them. I suggest to them, as they anticipate the possibility that 45 per cent of a 50 per cent turnout would vote yes, that they need to introduce a threshold along the lines of the Cunningham amendment. On that basis, the question would have been passed. I look forward to their amendments to deal with the adjustments that they anticipate.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 8th December 2010 Lords Chamber

[Lord Tyler]

All the evidence from Professor John Curtice, who was mentioned earlier, is that AV is less likely to result in a balanced Parliament, as we have now, than first past the post. The noble Lord may be able to look to the future and have a better idea, but the academic evidence is that AV is less likely to do that because there is a sort of bonus towards the larger party as a result of the election.

I find it incredible that so many Members opposite are ignoring what has been said by their party leader—and in the Guardian today—by saying in absolutely firm terms that they believe that AV is the right way forward. Of course, they are being consistent with what they said previously in Parliament and in the election, but I find it quite extraordinary that so many Members opposite feel that it is necessary to rebel against their own party at this juncture and to weaken the position of their new leader.

[Lord Falconer of Thoroton]

I would like to help my noble friend. It is not the position of the Labour Party that there cannot be an open debate—I hope that he will encourage an open debate as well—and there is no party obligation to support AV. We support the idea of a referendum, but not necessarily AV. We want the country to debate it, and I am very grateful to the noble Lord for contributing to that debate.

[Lord Tyler]

I am grateful to the noble and learned Lord, because he has pre-empted the question that I was about to ask. I am assuming, from what he has just said, that he will support—not just not vote against—the motion that Clause 1 stand part, because what he has said implies that he will do so. If we had known that an hour or so ago, this debate might have been rather shorter.

It is true that the previous Labour Government twice committed itself to this precise form of words for putting the issue to the people. I believe, as Churchill said, that we should trust the people on this issue. I am quite prepared to debate in any television studio with the noble Lord—

--- Later in debate ---

[Lord Tyler]

I have to tell the noble Lord that Churchill was a supporter of electoral reform when he was a Liberal, and then—I am sorry to say—disappeared off into a different party.

I believe with both the coalition Government and the Labour Party that those same citizens who have been cheated by our current system for so long should be given an early opportunity to vote for a better system. The proposal may not be perfect—I agree with those who made that point—but we have had the moment of truth, in that the Opposition Front Bench are now saying that they will support the motion that Clause 1 stand part of the Bill. That is good news. I hope that we can make equally good progress with the rest of the Bill.

[Lord Falconer of Thoroton]

What a rip-roaringly good debate it has been. Only the noble Lord, Lord Tyler, who keeps putting words into my mouth, slightly spoils it.

These are the questions that need to be addressed as a result of the debate. First, there is a strand in the debate from the noble Lord, Lord Hamilton, and my noble friend Lord Grocott, who said there should not be a referendum at all. The noble Lord, Lord Hamilton, said it would lead to a worse system; the noble Lord, Lord Grocott, said that there is no case made out adequately for AV. One of the purposes of us debating it in Committee is for the case to be looked at. The first question that the noble Lord, Lord Strathclyde, should deal with, is why should there be a referendum with AV as the only alternative in it? He should answer the noble Lords, Lord Hamilton and Lord Grocott, because for people voting in the referendum, there needs to be a credible case for it made by the Government, which goes beyond saying, “I agreed it with my coalition partners, therefore it must happen”. That carries no weight with the electorate.

The second question that has been raised is: why choose this sort of AV? That was the debate between the noble Lords, Lord Campbell-Savours and Lord Greaves, which is beyond most of our abilities to comprehend. I say seriously that it is important because the Government are saying, “A detailed proposal for an alternative vote system is set out in Clause 9 and if you vote “yes”, that is the one you will get”. The noble Lords, Lord Greaves and Lord Campbell-Savours, are at each other’s throats about whether that is the right system of alternative vote, and in voting yes, the individual members of the electorate in the referendum have to decide whether they think it is the best.

I say in parenthesis how glad I was to see the Deputy Chief Whip, the noble Lord, Lord Shutt of Greetland, going to speak to the noble Lord, Lord Greaves—I think, to encourage him to continue to participate in the debate. The moment that the noble Lord, Lord Shutt of Greetland, spoke to the noble Lord, Lord Greaves, instead of keeping to his seat, he immediately got up to intervene in the debate. I congratulate the Liberal Democrats on that.

[Lord Greaves]

I reveal that my noble friend was actually passing on a piece of scurrilous gossip which I would never reveal to the House.

--- Later in debate ---

[Lord Falconer of Thoroton]

My opinion of the noble Lord, Lord Shutt of Greetland, deteriorates dramatically in the light of that.

The explanation of the noble Lord, Lord Strathclyde, of why they were choosing what I may describe as the Queensland alternative vote system, as opposed to the federal system, had detail and substance to it. His explanation of why they were choosing the alternative vote system as opposed to the supplementary vote system was tragically lacking in any detail. I invite him to take the opportunity of replying to this debate to give that explanation, because it is not possible to say that the noble Lord, Lord Campbell-Savours, has not got the ball well over the net on the question of the supplementary vote system, which is accepted as being a sort of alternative vote. That requires consideration. Why are the Government not adopting that form of alternative vote rather than the form set out in Clause 9? The public are entitled to know.

The third question which the noble Lord, Lord Strathclyde, needs to deal with in this significant debate is: why not give other choices to the electorate—a point made by the noble Lords, Lord Skidelsky and Lord Rooker? Why is an alternative vote system favoured by the coalition? Yes, it was the one favoured by the Labour Party in both the CRAG Bill and the manifesto but, unfortunately, in the context where parliamentarians are not that respected by the public, the argument has to be advanced. It is not enough to say, “We have agreed with the Liberal Democrats, therefore we imagine that you members of the electorate will accept that as sufficient reason”. They will not. There must be an argument. I assume that there is an argument why it was accepted in the coalition agreement.

Those are the three points of principle that need to be addressed. There are five other points of detail that are of significance. The first is the point made in the incredibly impressive speech by the noble Lord, Lord Elystan-Morgan, about the Welsh translation. I do not know whether noble Lords know this, but I do not speak Welsh. I accept completely that the noble Lord, Lord Elystan-Morgan, understands Welsh. What he said left me worried about the position of the Welsh translation. If, for example, DU means God willing, not the United Kingdom, to the people of Wales, something has gone badly wrong in the translation. I invite the noble Lord, Lord Strathclyde, who has had the whole of the dinner hour to deal with that, to tell us why the noble Lord, Lord Elystan-Morgan, is wrong. I regard it as a significant issue. Welsh is a recognised language in Wales, and although I do not think that there is now anyone in Wales who is monolingual and speaks only Welsh, it will be the first language for some of the 200,000 people who speak Welsh, who may well go to that translation first.

[Lord Elystan-Morgan]

There are 600,000 people who speak Welsh. It is the first language of many hundreds of thousands of them. It is the first language of half a dozen Members of this House, including me. If I may say so without straying beyond propriety, it is the first language of the Reading Clerk of this House, whose English is flawless but whose Welsh is perfect.

[Lord Falconer of Thoroton]

I am quite sure that the Reading Clerk will therefore go to the Welsh question and wonder what it is about the electoral system for God that we are now seeking to deal with. I did not know about this point. Had we known about it, we would have put down probing amendments in order to get it. I think it is quite an important point.

The next detailed point is that this is being dealt with at unseemly speed. We sought to deal with that through the amendment that this House agreed on Monday giving the Government the opportunity to bring the referendum forward between May and October. I have to tell noble Lords that this has caused the Electoral Commission much upset. It has asked the Government to please get Parliament to make up its mind quickly about the position. I shall read what the chair of the Electoral Commission has written to the right honourable Nick Clegg, Deputy Prime Minister, at the Cabinet Office at 70 Whitehall:

“Given the importance of clarity about the rules on how the referendum will be conducted so that the commission and others can successfully deliver their responsibilities and campaigners can plan properly to put their arguments to voters, I urge you to set out how the Government intends to proceed to ensure Parliament can specify the date of the proposed referendum as soon as possible”.

As I understand it, the Electoral Commission is asking the Government to ensure that Parliament can specify the date of the proposed referendum as soon as possible.

[Lord Rooker]

When I saw the note from the Electoral Commission, which it copied to many of us moving the amendments, I wrote back briefly, saying:

“I am sure high quality lawyers will see a route forward and grab the chance of flexibility. Why don’t you recommend an order making power in the Bill. Make a draft order with May 5th while maintaining the fall back of … 31 October in the Bill”.

It is very simple. We all say that the target date is 5 May. The way to do it is to put an order-making power in the Bill and put a draft order before the House while the Bill is going through so that the public sector, the private sector and everybody knows that that is the target date. The Bill itself—the Act of Parliament—will have “before 31 October” so if something goes wrong, it is possible to change the order. It is simple.

[Lord Falconer of Thoroton]

I think it is pretty clear that the Electoral Commission is very dissatisfied with the way that we have behaved in relation to this and have amended the Bill because it wants clarity as quickly as possible. It wants to ensure that Parliament can specify the date of the proposed referendum as soon as possible. Could the Minister indicate what the Government’s position in relation to that is?

My noble friend Lord Rooker puts forward a sensible solution. I would have thought that the solution is even simpler than what he said. There is nothing wrong with the Government saying that they intend to have the referendum on 5 May, but if they cannot, they will have it on a date when they can have it.

There is another significant point. The timing is presumably a pressure only if the referendum is on 5 May. I think it is very hard to understand that you would need clarity about the date if the referendum was to be later in the year. Therefore, I assume that this letter from the Electoral Commission applies only if the referendum is to be on or about 5 May. If it is to be in June, July, September or October, I do not see why you would need the date to be fixed now, but perhaps the Minister can tell me whether I am right or wrong on that.

I have a letter from Mr Mark Harper MP, Minister for Political and Constitutional Reform, 70 Whitehall, London SW1A 2AS. He writes:

“We will therefore seek to ensure that the Parliamentary Voting System and Constituencies Bill includes provision for that date”.

Perhaps the Minister can indicate what he has in mind to achieve that course of action. So, on the question of date, is it too fast? We are happy with the approach that has been adopted by this House. What is the Government’s position on that?

Secondly, we wanted it to be indicative, not compulsory, so that Parliament could subsequently debate, if there was a yes vote in relation to alternative votes, what the right method of alternative vote systems would be. Thirdly, we did not want it to be combined with other elections. Again, I would ask the Government to set out their position in relation to that. I assume that their position remains as set out in Clause 4. Those are the four significant points.

We have made it clear that we support in principle the idea of a referendum on AV, but I should like to hear the Government’s justification on the three points of principle. Should there be a referendum at all? Why choose this sort of AV? Why not go for other opportunities? I would also like to hear the Government’s position on whether this is too fast, whether it is indicative, not compulsory and whether it should not be combined.

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

I have already said it.

[Lord Falconer of Thoroton]

The noble Lord should say it again. It is up to the noble Lord whether he wants to answer these points. Something that has been particularly good about today is that the electorate has had the opportunity to hear for the first time some of the Government’s defence for this political change. Prior to that, the noble Lord the Leader of the House has indulged in fantastically attractive and amusing political points, which unfortunately the electorate will not find very attractive.

[Lord Strathclyde]

My Lords, it has been a useful and interesting debate. We have covered a lot of ground. A lot of different views have come from those opposite, including those who are wholly opposed to a referendum of any kind or to any change. The noble and learned Lord seemed to say slightly half-heartedly that he wishes to have a referendum. I cannot help feeling that secretly he rather wished that there would not be one. I am in favour of having a referendum.

[Lord Falconer of Thoroton]

If the noble Lord is prying into my personal views, will he tell the House his personal view on a referendum?

[Lord Strathclyde]

I am wholly in favour of us having a referendum because I am in favour of people having a choice and being able to deal with the issue. It is important that they should. I have no difficulty in supporting a referendum. I think that I have already told the House that I will not be supporting the yeses; I will be supporting the noes when we get to it.

[Lord Falconer of Thoroton]

Perhaps the noble Lord could express his view as to how disappointed he was that the Conservative manifesto did not contain a commitment to such a referendum.

[Lord Strathclyde]

My Lords, it is for the noble and learned Lord to apologise as to why it was in his own manifesto. What did Ed Miliband, leader of the Labour Party, say—not six months ago when he was writing the manifesto—today? He said:

“I believe that changing our electoral system so that every MP has the support of”—

I am not trying to rile the noble Lord, Lord Rooker—

“more than half their constituents is one way in which we can begin to restore trust in politics”.

The leader of the Labour Party said that. I am responsible for many things, but I am not responsible for the leader of the Labour Party—thank goodness.

The Welsh issue was an important and substantive point, which worried me when it was raised by the noble Lord, Lord Elystan-Morgan. It worried the noble and learned Lord, Lord Falconer of Thoroton. One thing I am trying to do during the course of these debates is relieve the noble and learned Lord of worry. I understand that Cabinet Office Ministers will write to the noble Lord shortly with a full explanation of the Government’s position. But I can furthermore advise the Committee—this is really interesting—that the Electoral Commission is statutorily responsible for advising on the intelligibility of the English and Welsh versions of the question. Not only did it consult the Welsh Language Board, but it has conducted focus groups with Welsh speaking voters on the Welsh question now in the Bill. In its public report, it advises that concerns on intelligibility, along the lines raised by the noble Lord, did not arise. The Electoral Commission will send explanatory leaflets in English and Welsh in Wales to all voters to explain the issues. I have no idea whether that is good enough for the noble Lord. He will be receiving further letters from the Cabinet Office on that important point.

This is a clause stand part debate, so what is the clause about? It provides for a referendum to be held on 5 May 2011 on whether to change the voting system for parliamentary elections. Following the amendment of the noble Lord, Lord Rooker, which the Government resisted, the clause also allows for the referendum date to be moved. The Government remain committed, because we believe it to be achievable, to holding this referendum on 5 May next year. That view was set out in Mark Harper’s letter to Jenny Watson today. I heard what the noble Lord, Lord Rooker, said in the debate and I thank him for what was a positive and constructive suggestion on the way forward.

The clause also sets out the question that will appear on the ballot papers in English and Welsh. The noble and learned Lord asked why we are bringing forward a referendum on the alternative vote system. We are doing it because it has been agreed between the Conservatives and the Liberal Democrats, as the coalition partners in government—I know that noble Lords do not like the idea, but that is what has happened—that it will form part of our coalition programme for government. The two parties in the coalition have differing views on the merits of the two voting systems, and those views will no doubt be played out in the campaign. The Government are clear that there should be a referendum on the issue and that it is for the electorate to make the choice between the systems. This is not a panic driven stitch-up, which is what I think either the noble Lord, Lord Grocott, or the noble Lord, Lord Campbell-Savours, called it.

The noble Lord, Lord Campbell-Savours, simply disagrees with any change to first past the post, so he is making a campaigning case—

--- Later in debate ---

[Lord Strathclyde]

That is a good question. The committee on which the noble Baroness the Leader of the Opposition sits is discussing these issues. No final view has been taken but, when it is, no doubt it will be transmitted to the noble Lord—if not directly by her then when a Statement is in due course made to Parliament at some stage in the new year.

[Lord Falconer of Thoroton]

The noble Lord shows a consistent admiration for the importance of the referendum and allowing the people to decide, but he is not allowing the people to decide on whether or not they would prefer the supplementary vote system—which is a form of alternative vote—to first past the post. He has not yet answered that question and the public would be grateful to hear why that system of alternative vote has not been adopted.

[Lord Strathclyde]

We made two decisions. First, we made a decision about AV, and I have given the reasons why we thought that the system should be AV. The second decision, not to give a further choice, was because we wanted to have a very clear indication from the people of this country on whether they want to make a change to AV, which we feel is the best of the alternative systems, or to retain first past the post.

[Lord Falconer of Thoroton]

I am sorry to press this, but the supplementary vote system is a form of AV that does not compel people—as the federal Australian AV system does—to vote for unsatisfactory candidates. What was the basis of decision to provide for the system described in Clause 9 rather than the supplementary vote system?

[Lord Strathclyde]

I have explained all the reasons, not the least of which is that the House of Commons united around this particular system, which I am very happy to support.

--- Later in debate ---

[Lord Strathclyde]

The discussions took place before we came into Government. They were part of the agreement on becoming the Government. I was not there and I was not part of the discussions. However, I cannot imagine that we decided on AV without having taken a view about the other systems and taken a decision that AV was the right one.

[Lord Falconer of Thoroton]

Let me put it more simply. In the Government’s view, why is the system in Clause 9 better than the supplementary vote system? If the noble Lord could explain that, the public would have some understanding of why we have the Clause 9 system. That is what I am getting at.

[Lord Strathclyde]

In a series of votes in the House of Commons, Members of the other place united behind this system and decided to put it forward to this House.

--- Later in debate ---

[Lord Strathclyde]

My noble friend Lord Tyler makes a great point. Six months ago, that was the view of the Labour Party. That is the view that we have taken as well, for the reasons that I laid out. The system that we propose gives the widest possible choice to voters. That is why it is a good idea.

[Lord Falconer of Thoroton]

Should I understand from the warm embrace that the noble Lord, Lord Strathclyde, has given to the noble Lord, Lord Tyler, that the Government are proceeding with the system because we did so?

[Lord Strathclyde]

Not just today, but on the last time that we met—and, I expect, the time before that—I laid out the reasons why we chose AV. The noble and learned Lord may not like it, but that is what we said. There is very little left to say

[Lord Falconer of Thoroton]

The one thing, I am afraid, that the noble Lord, Lord Strathclyde, cannot get away with is that he has never laid out the reasons why the Government have favoured the alternative vote system proposed in Clause 9 over the supplementary vote system. The paucity of his arguments was demonstrated, if I may say so, by his saying, “We are doing it because the Commons voted for it”.

[Lord Strathclyde]

Was that a question?

[Lord Falconer of Thoroton]

No, it was a statement.

Clause 1 agreed.

--- Later in debate ---

[Lord Hamilton of Epsom]

My Lords, I am a bit troubled by the proposals of the noble Lord, Lord Dubs, because I am a passionate believer in an appointed House. The passion with which I believe in an appointed House will become more apparent as the Lords reform Bill finds its way through this Chamber. One thing that worries me about the proposals of the noble Lord, Lord Dubs, is that Members of the other place have a vote in general elections but also stand for election in those general elections. If Members of this House were to press to have the vote in general elections, we would make it more likely that others would suggest that we should therefore stand for election here as well. There is a correlation between standing for election and having the vote. It is a dangerous business to play with the idea of Peers in this House having the vote, when many of us will be trying to resist the whole idea that this should become an elected Chamber. That is one of the reasons why I totally oppose the proposals of the noble Lord, Lord Dubs.

[Lord Falconer of Thoroton]

How much I admire the noble Lord, Lord Hamilton, for his courage at every stage of this Bill. This is obviously not an appropriate Bill to make a change in relation to whether Members of this House should vote, which I think the noble Lord, Lord Dubs, accepts. The noble Lord, Lord Dubs is right, however, to put the amendment down. Under this Bill, Peers will have the right to vote in the referendum on what the voting system should be and yet, once they have played their part in deciding what the voting system should be, they have no right to vote using that voting system. This is an opportunity for a short debate as to what the right course in relation to Lords voting is.

It is obvious, historically, why the Lords cannot vote in Commons elections. The nature of Parliament was that the Commons were elected because they were representative. We were not representative. The whole lot of us turned up in the upper House. Therefore, there was no need for any elections. The whole lot of us still turn up in the House, except for the hereditary Peers, who vote for hereditary representatives. Does that mean, therefore, that we do not need to have a vote in relation to the Commons? The answer is no, because the Lords no longer select the Government. The Government are selected exclusively by the Commons. We have influence in relation to Bills. We have a say in what happens in relation to policy. However, it is only a say. We do not vote in relation to the body that selects the Government.

Therefore, once the prisoner issue is dealt with, we, and we alone, are the only group in the country that has no say in selecting the Government of the day. The fact that we do not have the vote is an historical anomaly. There are 700 or 800 of us; no doubt the figure would go up to about 2,000 if the coalition had its way. Therefore, the number suffering the effects of this anomaly will increase, but it is an anomaly that no longer has constitutional justification. In those circumstances, one is obviously looking not for agreement from the Government that this matter should be dealt with in this Bill, but simply for the Government’s view on the matter. I do not expect any time to be allocated to this matter in any legislative programme, but if the Government were to express the view that it needed to be dealt with at an appropriate time, that would have a very significant effect on the processing of the issue.

I do not agree with the noble Lord, Lord Hamilton, that if we have the vote people will want us to be elected. The public will not think that because we can vote we should be elected. The question of whether we should be elected depends very much on the quality of what we do and the extent to which we persuade the public either that we should go on as we are or that there is a need for change. It is an important issue and one that will not get an airing in this House except on Bills such as this.

I return to the point that I started with. We are rightly accepted as participants in the decision-making process of whether there should be a change in the system. We are accepted as participants in that process because there is no basis on which it could be said that we should be excluded from that. That is the view that the Government have taken. We are included in Clause 2 as people entitled to vote in the referendum. The Government think that it is wrong that we should be excluded from that. There must be a basis on which the Government have come to that conclusion. I support that conclusion, because the obvious reason for saying that we should be included in the process by which a voting system change should be effected—if it is to be effected—is that there is no democratic reason why we should not be allowed to be included. It is wrong to say that this is a matter for other people; everybody accepts that it is a matter for us. It is an important issue. It is like a whole range of anomalies that you can say do not really cause any problems. However, how you put the constitution together and the extent to which there are consistencies in the constitution are very important. A justification for Peers not being entitled to vote is now required in a constitutional sense. If there is not one, the right course for a Government who are prepared to follow the logic of their constitutional position is to say—

[Lord Grocott]

Does my noble and learned friend acknowledge that it is an enormous privilege—obviously, it is not a unique privilege, but it is given only to the 800 or so Peers—to take part for life in the determination of the Bills that go through one of the two Houses? If you have that near unique influence on the legislative process, I do not think that it is too much to ask that you should not then have a clear determining role in deciding who the Members of the other House should be. It is rough justice but it seems to me a kind of justice. You forfeit that voting right because of the advantage that you have over all your fellow citizens of being able to take part in debates and influence the progress of legislation.

[Lord Falconer of Thoroton]

I disagree with what my noble friend Lord Grocott says for two reasons. First, there are other people who have very important roles in relation to what happens to policy legislation. Even in the period of my noble friend’s pomp, I suspect that the Cabinet Secretary was more important than he was, but nobody ever suggested that he should be deprived of his vote. The Chief Justice is more important than almost everybody in the country in determining what legislation means, but nobody suggests—

[Lord Hamilton of Epsom]

Does the noble and learned Lord accept that the Cabinet Secretary would not have had any vote on legislation?

--- Later in debate ---

[Lord Falconer of Thoroton]

The Cabinet Secretary would not have had any vote on legislation, but he might have had an even more important influence, I respectfully suggest, on legislation than people voting here would. What is more, as we can see from the presence of the noble Lord, Lord Armstrong, he could reasonably have expected to come here to legislate at the end of it. There are lots of important people in the state and a lot of people with privileges, as the noble Lord, Lord Grocott, says. However, I respectfully suggest that the key point is that this is a democracy and the Government are chosen not from the Lords but from the Commons. The key question is: why are we excluded from being democratic participants in choosing the Government? The essence of democracy is that it is not just a process; it also represents values. The critical value that democracy represents is that we are all equal in the choice of the Government. Why are we not equal in that respect? I do not think, with respect, that either the answer that the noble Lord, Lord Hamilton, gives—“They will elect us next”—or the answer that the noble Lord, Lord Grocott, gives, which is, “Well, we are jolly privileged”, is an answer to that essential democratic argument. I would be interested to hear what the Leader of the House has to say.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords—

[Lord Falconer of Thoroton]

I would be equally interested in what the Deputy Leader of the House has to say.

[Lord McNally]

My Lords, I have been stripped and ready for action for three days. As the Leader of the House has pointed out, he and I are joined at the hip on this Bill. However, in that spirit of co-operation, he said, “Tom, you take Clause 2 and I’ll take Clause 1”. That seemed fine at about 7 pm on the first day of this debate, when I thought that I would be coming on straight after the dinner hour. Three days later, I come on with three minutes to go.

This has been an excellent mini-debate and I suggest that those who are interested in it should read the speech given by the noble and learned Lord, Lord Falconer. No wonder he was facing the other way to deliver it; he was giving us both sides of the argument. It is very good that he should do so.

I fully respect the noble Lord, Lord Dubs. I know that he has campaigned on this and that he feels strongly about it. I hope, given what he has said, that perhaps we will get one of the opposition days to debate the issue, or perhaps a Question for Short Debate. The issue is worth debating and I look forward to him carrying on his campaign. The problem is, as he himself acknowledged and, indeed, as the noble and learned Lord, Lord Falconer, acknowledged, that this is not the place for it. It is a good political ploy to use a Bill to hang a campaign on and to get the issue raised and I fully respect the noble Lord for doing so. However, we are concerned specifically with who should vote in the referendum on the parliamentary voting system. Basing the franchise for the referendum on that for the Westminster general election seemed the most sensible thing to do. Yes, we have made a concession in that we have put alongside that noble Lords, who are entitled to vote in other elections. The Government thought that that was a fair and logical approach. I suspect that, if we had not included noble Lords, there would have been an amendment to include them.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Wednesday 8th December 2010 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, this is an important debate on an issue that might figure in the course of the referendum campaign. Clause 9 sets out in detail the alternative vote system that the referendum will be about, which is a system in which people could vote “1”, “2”, “3”, “4” and “5” but would not have to use all five preferences. The noble Lord, Lord Campbell-Savours, has identified two other AV systems. Under the AV system used in the federation of Australia, voters are compelled to use all their preferences. Under the third alternative vote system—called the supplementary vote system—voters identify their top two preferences and the second preferences of those who voted for the other candidates are shared out between the top two.

As Clause 9 establishes, the Government have chosen the AV system that is used in Queensland, Australia. For the sake of the electorate, it is important for the Government to set out why they have chosen that alternative vote system in preference to both the system used in federal elections in Australia and the supplementary vote system that has been described by the noble Lord, Lord Campbell-Savours. Once the Government set out what their reasoning is, this House can judge whether the AV system chosen is the right one or whether amendments should be made in relation to the alternative vote. Perhaps more importantly, the public voting in the referendum will be able to judge whether it is sensible to vote in favour of the particular alternative vote system that the Government have adopted. As we have identified before, this is—as it were—a compulsory referendum because our previous amendment failed. The effect of a majority yes vote, once the new constituency boundaries are in—those are tied in as well in Clause 8—is that the system in Clause 9 will automatically come into effect. The public will be voting not just on the principle of AV but on the detail of the particular system adopted. Therefore, it would be helpful if the Minister would set out the reasoning behind Clause 9.

My children have always thought that I am a bit of a nerd because I am so interested in politics, but if they had heard the invigorating debate between the noble Lord, Lord Greaves, and the noble Lord, Lord Campbell-Savours, they would think that I was the coolest man alive.

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

My Lords, I very much admire the way in which the noble Lord, Lord Campbell-Savours, introduced the amendment. I also admire his perseverance, eloquence and sincerity. He gave us the history of the genesis of the supplementary vote since one of his dinner parties that occurred in 1989. I make no joke about his dinner parties, as I am sure that it was very good. Historians will want to know what on earth he ate at that dinner party, but that is for history.

My Lords, I am a reader of the Guardian newspaper—

--- Later in debate ---

[Lord Norton of Louth]

My Lords, it strikes me that the amendment prompts three questions. The first is whether we should change the date, and that is what my noble friend Lord Hamilton and some others have addressed. The second is whether this is a question that is appropriate to be included in the referendum. That is the substantial point that we should address. There are various problems in including this question. One has already been alluded to: it is a limited choice. It may be that electors prefer to go on a Monday or a Sunday, so we do not know whether providing this dichotomous choice will reflect the actual preferences of electors, as they are being offered too limited a choice. Another problem—it is a technical point—concerns what would happen if electors expressed a preference for Saturday rather than Thursday as far as the Bill is drawn. We know what will happen if they vote yes on the question of AV, but the Bill is merely silent as to what the consequence would be, so in effect it would be akin to an opinion poll.

The third and most important point is why we should have this question rather than others. We will be looking at other questions to be included, but priorities are important. If we start adding to it, there is a danger of overdoing it, and I am not sure this question should take priority for the simple reason that we could find out through an opinion poll. I think that that would be sufficient for these purposes.

[Lord Falconer of Thoroton]

My Lords, this has been a very interesting debate. It is one that is had practically every time we have any Bill that mentions voting. The facts are interesting. Since 1935, every general election has been held on a Thursday. In 1931, it was held on a Tuesday. In 1922 and 1924, elections took place on Wednesdays, and in December 1918, as my noble friend Lord Snape said, election day was a Saturday, so weekend voting is not a new idea. There is no statutory requirement for elections to held on Thursdays. They could be held on any weekday except Christmas Eve, Christmas Day, Good Friday, a Bank Holiday, or any day appointed for public thanksgiving or mourning. It was in 1983 that Saturday and Sunday were also designated as dies non under the parliamentary election rules in the Representation of the People Act. This amendment gives an opportunity to debate whether Saturday should be a dies non, but not Sunday.

To deal with the point made by the noble Lord, Lord Norton of Louth, I emphatically think this is obviously not a question for a referendum. If we start voting in a referendum on whether it should be Thursday or Saturday, goodness knows what we will then be voting on in a referendum. I am opposed to it being in a referendum. Referendums should be kept for constitutional questions. I know from talking to my noble friend Lord Snape that that of course was not his intention. His intention was that we should debate the issue in relation to whether it is appropriate. I agree completely with the approach taken by my noble friend Lord Rooker on whether it increases turnout. We all agree that we should try to increase turnout. Attractive as the approach taken by the noble Lord, Lord Renton of Mount Harry is, that he has never had any trouble on Thursdays—because he has always won his elections, presumably, that is why he likes Thursday—I am not necessarily sure that should be the bar to it.

I agree with the noble Lord, Lord Norton of Louth, that we should look into the question. In fact, pilots have taken place in local elections in relation to Saturdays and it would be helpful to hear from the Government what the evaluation of those pilots was and what the conclusion in relation to it is. Ultimately the test is the one that my noble friend Lord Rooker sets: does it increase turnout? If it does, then I hope that the Government will think about doing it seriously.

[Lord Strathclyde]

The main reason why I shall disappoint the noble Lord, Lord Snape, is precisely the one that we have witnessed over the past 23 minutes. It is a fascinating debate and different people have different views about different days of the week. This debate has yet to mature, so it is not one for the Bill, which is about a specific referendum on AV. In fact, I remember the noble Lord and some of his colleagues complaining that we should not have more than one difficult issue on a day, but here he is proposing one himself. However, I also know that he wanted to tease out the Government's view on this subject.

We believe that a further question on the referendum ballot paper would detract from the Government’s main purpose, which is to see whether voters wish to change from the current first past the post voting system to the alternative vote system. As we have heard this afternoon, there are arguments for and against moving polling day from the traditional Thursday to a Saturday, and lots of evidence, supporting or not, on turnout and the use of postal votes. In experiments and consultation, there are divided opinions on whether such a change would be more convenient for voters and whether it would lead to an increased turnout. There are also resource and cost issues, alongside concerns about practicability.

In weighing up those arguments, the Government have seen no evidence that such a move would bring any clear benefits. It is not obvious that moving polling day from the traditional Thursday to a Saturday or Sunday would make it easier for electors to vote. This is probably the subject of a wider debate, or even a Private Member’s Bill. I am unable to support the noble Lord.

[Lord Falconer of Thoroton]

I appreciate that the noble Lord may not have the answer, but could he write to me with the results of the pilots?

[Lord Strathclyde]

I will certainly do so.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 6th December 2010 Lords Chamber

[Lord Campbell-Savours]

It is because it was only in the early days prior to coalition that public prejudice on the issue of coalitions led to this general view that coalitions cannot work; whereas following the referendum decision and the creation of the coalition, and a recognition by the public that the system did work, the coalition then gained in popularity. All I am saying to my noble friends is that I find this particular amendment very appealing because it offers the public the opportunity that many of us believe they should be given during the referendum.

[Lord Falconer of Thoroton]

That raises a fundamental point which my noble friend Lord Rooker puts very well; you have to be able to explain why AV has been chosen and the public are not being given a choice on anything else. I have to say again, rather distressingly, that the noble Lord, Lord Strathclyde, did not deal with that at all in relation to the last amendment. He said that clarity was important. That is an answer, but it does not deal with why AV has been chosen. There is a profound sense in this House that there are a range of options. My noble friend Lord Rooker and the noble Lord, Lord Lamont, have pretty well destroyed the idea that AV is an effective choice.

If at all possible, I should like the coalition to explain why it has chosen AV as the only alternative proposition that it is putting to the electorate. If the answer is—I think that the Deputy Chief Whip is trying to tell me this—“Well, that is all we could agree with the Liberal Democrats”, that is fine, and I hope the electorate will treat that with the contempt that it deserves. Then the position is that we are not suggesting that it is the best alternative; we are saying that it is the only one on which we could reach agreement. I very much hope that the coalition is straightforward about that, because this is a serious debate about the constitution. Unless no answer is forthcoming, there is no other option but for this House to debate which are the better options. I know that that wearies the noble Lords, Lord Strathclyde and Lord McNally, but if you cannot explain or debate the best alternative to first past the post, the position is that the merits of each of them have to be debated.

[Lord Tyler]

Perhaps it would help the House if the noble and learned Lord was able to explain why this was the only alternative to the first past the post system that his Government twice put before Parliament and the nation. The first time was in the Constitutional Reform and Governance Bill, when this was very specifically the only alternative that was going to be put before Parliament and the people, as he well knows. The next was at the general election. It would help the House to have his explanation.

[Lord Falconer of Thoroton]

That was the step that the then Government proposed in the Constitutional Reform and Governance Bill. That step was then proposed in the referendum, but it was rejected by the public because we lost the election. This is the team who won the election. Unless you are saying to us, “We adopt the position that the Labour Party adopted”, I am unable to understand why it is. I hear the noble Lord, Lord Fowler, saying “Come on” from a sedentary position. If the reason is that the Conservatives and the Liberal Democrats have adopted the miserable little compromise that they proposed because we adopted it, let them say so. The deafening silence, the lack of argument and the black hole at the centre of the argument—

[Lord Tyler]

This is absurd. Presumably, the noble and learned Lord and his very distinguished colleagues in the previous Administration had a thought process that brought them to the conclusion that it was the right choice to put before Parliament and subsequently at the general election to put before the public. They were not just jumping ahead and wondering what a putative coalition might attempt in the future. At the time, he was a distinguished member of that Government. Surely he had an input into that thought process. Can he not share that thinking with us?

[Lord Falconer of Thoroton]

I am afraid that I was not a distinguished member of the Government at the time, but let me speculate as to what might have been in the mind of the Government.

[Lord Lamont of Lerwick]

Before the noble and learned Lord, Lord Falconer, delves into the bowels of history, is it not the case that today the leader of the Labour Party has said that he intends to vote for AV in a referendum?

[Lord Falconer of Thoroton]

He has and that is fine. He is not saying necessarily that that is what everyone else has got to do, but the noble Lord, Lord Lamont, is absolutely right in relation to that. What is the thinking of the noble Lord, Lord Tyler? I do not know, but perhaps it was that this would be enough to get the Liberal Democrats on side. Sure enough, it has proved to be the case as far as the Conservatives are concerned. But, ultimately, the problem which the Liberal Democrats say this is to try to resolve is a lack of trust on the part of the electorate in politicians.

[Lord Rennard]

One should consistently want to trust the electorate and give them that decision. I do not think the noble and learned Lord answered very well the points made by my noble friend Lord Tyler. We have heard some persuasive arguments this evening from noble Lords opposite in favour of a multi-option referendum on electoral reform. I just wish we had heard them over the past 13 years when noble Lords were in a position to do something about it. The logical position on these Benches is simply that we would rather trust the people with having some say on the issue than give them no say.

[Lord Falconer of Thoroton]

I am rather confused by this. This is another volte-face. My understanding is that the Liberal Democrats in the negotiations pressed for AV without a referendum, so I am not quite clear why the noble Lord, Lord Rennard, is saying, “Trust the electorate”. I imagine the Liberal Democrats were pressing the Conservatives to agree to no referendum on the basis that they could not trust the electorate to go with what they thought was the right answer.

[Lord Rennard]

Perhaps while the noble Lord, Lord Adonis, is present, he might confirm that the Labour Party pressed on us the idea that it might well legislate for AV without a referendum because it is such a good system.

[Lord Falconer of Thoroton]

I am talking about the Liberal Democrats.

[Lord Adonis]

That is absolutely not the case. There was no proposition from the Labour Party. It was always made clear that any change to the electoral system would require a referendum for the obvious reason that this is a fundamental change to the constitution of the country.

[Lord Falconer of Thoroton]

I am grateful to my noble friend Lord Adonis. The noble Lord, Lord Rennard, was not in a position to deny the assertion that they were seeking AV without a referendum. So the Liberal Democrats trust the electorate but only on the basis that they give them the answer that they want.

[Lord Campbell-Savours]

Is there not a distinction between how this House would have handled the matter then as against now? Earlier in the year if every Member of the House had been voting for what they wanted, that would not have gone through. It is a distinct possibility that the Labour Government would have been defeated on the issue of AV in this House. Now it is going through on the basis of people being prepared to vote for something they do not believe in. Which is the most honourable and honest House in those conditions?

[Lord Falconer of Thoroton]

The head-turning going on is easily identified. The public, however, are interested in the merits of the argument. What I cannot understand at the moment, because no argument has been advanced, is why AV is the only alternative that has been given. That is the question posed by the amendments of the noble Lords, Lord Skidelsky and Lord Rooker. There must be an argument beyond simply saying, “We reached an agreement over the weekend and that seemed a sensible thing to do”.

[Lord Strathclyde]

My Lords, the amendment moved by the noble Lord, Lord Rooker, would have the referendum pose not one but two questions and present the option of four different voting systems to the public—alternative vote, additional member system, single transferable vote and supplementary vote—rather than the simple choice between the current system and the alternative vote. We believe that on an issue as fundamental as voting reform, the public need to be given a clear choice which will produce an equally clear result, and there are a number of ways in which these amendments would stand in the way of that.

The noble and learned Lord asked why we are not giving another choice. That is the answer: to give clarity. He then asked why we chose AV. We might have assumed, given that the Labour Party had it in its manifesto, that it would support it. That is the first reason. How about this for a second reason? AV is the only system that allows a single constituency member to continue, which was an issue. AV+ includes additional members who do not represent constituencies. So AV maintains that link. And thirdly—

[Lord Falconer of Thoroton]

My Lords—

[Lord Strathclyde]

Let me explain the third reason. Noble Lords asked for a reason. I am not giving way to the noble and learned Lord until I have given all three reasons. Thirdly, out of all the systems that they voted on in the House of Commons, AV was the one they united on.

[Lord Falconer of Thoroton]

The noble Lord was saying that AV+ did not have a single member constituency. Have I misunderstood him?

[Lord Strathclyde]

In what respect? I said that AV was the one that only had single member constituencies. AV+ has single member constituencies and top-up members on lists. I suspect that the noble and learned Lord knew that.

--- Later in debate ---

[Lord Strathclyde]

My Lords, it simply tested the options system as opposed to a yes/no. It concluded that yes/no was a better way than the options. It produced evidence to support that view. Therefore, to change the question in the way the noble Baroness has suggested risks going against the advice of the commission.

[Lord Falconer of Thoroton]

Why is yes/no better than this?

[Lord Strathclyde]

The evidence it had was that first it was alien to referendums that we have had in this country and therefore would need new, comprehensive testing. Additionally, proper assessment of such a question would need to take account of further feedback from interested parties, including political parties and other groups and for those reasons, it took the view that the options style was not as good as the yes/no style.

--- Later in debate ---

[Lord Strathclyde]

My Lords, we have decided to support the findings of the Electoral Commission.

[Lord Falconer of Thoroton]

I just want some clarity. The way in which the noble Lord put it when asked the question appeared to state an analytical conclusion by the Electoral Commission—that it thinks that the options route is alien to how it has been done in the past and would lead to a different sort of campaign. That all sounds like analysis. Did I understand the noble Lord to say that there had been focus groups and testing by the Electoral Commission? If there were such focus groups and testing, are the results of that published? If so, where can we find it—and if it is not, could he publish it?

[Lord Strathclyde]

My Lords, if it is available to be published, I shall certainly see to it that it is done.

[Lord Falconer of Thoroton]

Is the noble Lord saying that it is focus groups and testing?

[Lord Strathclyde]

Yes, my Lords, I said in my original answer that the question posed was tested with focus groups and interviews with members of the public as well as input from language experts.

--- Later in debate ---

[Lord Falconer of Thoroton]

And will he publish it?

[Lord Strathclyde]

I have already said that I would if it was available.

[Lord Falconer of Thoroton]

The noble Lord says, “If it is available”, but there must be a record of it.

[Lord Strathclyde]

My Lords, obviously I cannot commit myself to publishing something if it is unavailable. I said that if it was available, I would make sure that it was published.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 6th December 2010 Lords Chamber

[Lord McFall of Alcluith]

My Lords, I support the proposition of my noble friend Lord Rooker. When I came into this House a couple of months ago, I was told very quietly that this is a reflective Chamber, and we take our time here and mop up the mistakes made in the House of Commons by looking at Bills in a detailed way. If there ever is an opportunity to caw canny, as they say in Scotland, I think it is this amendment today. My noble friend Lord Rooker said it would not change anything; it would still give the Government freedom to decide when to have the referendum. When I participated as a very keen observer in the Scottish Parliament elections in 2007, in the constituency across the River Clyde from me there were 1,600 discarded and spoiled votes. The majority of our win was less than 100. The SNP then went on to govern Scotland as a result of a shambolic election. I spoke to the returning officers, and they said that it was done too quickly: that too many pressures were piled on them and that situation was the result. As my noble friend Lord McAlvoy has said, the debate here will end on 20 December until next year. All that administrative stuff has to be undertaken after the legislation has been passed. I fear that we could have another shambles as a result.

There is time for us to tell the Government that we can slow down. This is a radical Government in terms of the welfare reforms that they are implementing. A couple of months ago, the Chancellor stood in the House of Commons and pulled £17 billion from the hat. We do not know where those welfare reforms will hit. We know that there is a child benefit threshold for higher rate taxpayers. But last Thursday, the Treasury sneaked out a report stating that another 100,000 people will be taken into the higher rate tax threshold because it has been lowered by £1,400. As a former chairman of the Treasury Select Committee, I say that the problems are piling up for this Government and that they will be answered in perhaps a year or 15 months’ time.

It was the same in the House of Commons when the then Chancellor who went on to be Prime Minister abolished the 10 pence tax rate. I remember saying, “When you do anything in the tax system”, as noble Lords know, “there are always winners and there are always losers. Have you thought about the losers?”. At the time, the Government did not think about the losers. I suggest that there will be losers in the radical legislative proposals that this Government have put forward and that the questions will beg answers in one year or more.

Some problems are being played out at the moment; for example, tuition fees. I am a good friend of the Business Secretary, Vince Cable, but to say that he is standing on his head in terms of tuition fees is an understatement. My former friend Ann Widdecombe has shown us something on “Strictly Come Dancing” that Vince has not done on the tuition fees—simply because the problem has not been thought out.

My noble friend Lord Donoughue was in Downing Street with Jim Callaghan and has written an excellent book. He said that Jim Callaghan as Prime Minister had a “maybe man” in Downing Street. The Government might have had a policy, which they were going to implement, and the “maybe man” said, “Hold on. What are the implications of this?”. This is a “maybe man” moment in this Chamber, so that my noble friend Lord Rooker’s amendment gets the opportunity to be reflected on and the Government do not run headlong into a shambles of their own making.

[Lord Falconer of Thoroton]

My Lords, this is the sort of opportunity that the Government should take. My noble friend Lord Rooker’s amendment is modest and sensible. He is saying that it would be possible for the Government to have the referendum on any date between 5 May and 31 October 2011. He is not addressing the combination issue; nor is he addressing how long it would take to have proper debates. He is saying, “Give yourselves some flexibility”.

There are obviously two reasons for flexibility. The first is in relation to the administration of the election. In relation to the administration of the referendum, the Electoral Commission believes that,

“on balance … it should be possible to deliver the different polls proposed for 5 May 2011”.

I am quoting the chairman of the Electoral Commission when giving evidence to the Scottish Parliament. It is to be noted that that conclusion, she says, is expressly contingent upon “the key practical risks” being “properly managed”. The Electoral Commission has several times repeated that,

“the rules on how the referendum will be conducted must be clear from at least six months in advance”.

We are now less than six months in advance from the date of the referendum. It has added that,

“provided the Bill receives Royal Assent in time to allow a referendum period of at least 10 weeks, there will be adequate time for the Commission to register campaigners and designate lead campaigning organisations, and for campaigners to put the arguments to voters”.

Put neutrally, it is pretty obvious that there is a significant risk that the administration will not be ready by 5 May 2011. That should be looked at in the context of the Government not having consulted, before they chose 5 May 2011, either the Scottish Parliament or the Welsh Assembly. The Scottish Executive expressed the view that holding the referendum on 5 May 2011,

“shows a lack of respect for the devolved administrations”,

and,

“undermines the integrity of elections to the Scottish Parliament”.

As everybody knows, the Welsh Assembly Government are likewise opposed to holding the referendum on the same day as the Assembly elections.

The Select Committee of this House published its seventh report of the Session 2010-11. It was printed on 10 November 2010 and its cross-party unanimous conclusion was:

“Given that the Bill was introduced in the House only six months before the proposed referendum date, there is a danger that these deadlines will not be met”.

The obvious and sensible conclusion for the Government is to give themselves leeway if they cannot meet the deadlines, either because of organisational issues or issues in relation to scrutiny. A Government who say no to that are a Government in their early days. If they were more sensible, they would say, “Yes, I see the force of the argument and we will agree to that”. If the noble Lord, Lord Rooker, pushes the matter to a vote, we will support it.

[Lord Strathclyde]

My Lords, we have had another series of interesting debates, largely on the same issue that we discussed the other night—the question of the date. Noble Lords who were there will have recognised that many of the issues that were raised last week were raised again today. I make no great criticism of that. It is inevitable in the early stages of discussing a Bill. The only surprise is that nobody, in an hour and a half of debate, mentioned a subject that was raised several times last week—that of the royal wedding. So as far as I can see, we have moved a great step forward over the course of the past week.

The debate really divided into three groups of speakers. First, there were those who were against the amendment and in favour of the Government’s proposal. Secondly, there were those like the noble Lord, Lord Rooker, who sensed that the Government were doing the right thing in offering a referendum but that they have not thought through all the various contingencies and needed some help and support—the word “lifeboat” was used and that sort of language. And thirdly, there were those like the noble Lord, Lord Grocott, my noble friend Lord Hamilton, and one or two others, who were opposed to the referendum and opposed to AV, and they also would support the amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

I apologise for interrupting, but the noble Lord appears to be moving on. The heart of the argument expressed by the Select Committee in this House is that there is a significant risk that the date will not be reached. If that is wrong, you can have your referendum on 5 May. Could the noble Lord possibly, out of respect to the committee, answer its point?

[Lord Strathclyde]

My Lords, if there is a risk, it is minimal. We have had the evidence from the Electoral Commission, which believes it is possible and has given evidence to noble Lords on that basis.

[Lord Falconer of Thoroton]

Its words were “on balance”. Minimal was the noble Lord’s word.

[Lord Strathclyde]

Whether it is “on balance” or “minimal” we think it is perfectly possible to have the referendum on 5 May, which is why I have set out the case during this short debate.

--- Later in debate ---

[Lord Strathclyde]

My Lords, its opinion is rock solid. It has every confidence.

[Lord Falconer of Thoroton]

The Electoral Commission says:

“It is possible to successfully deliver these different polls on 5 May but only if the risks associated with doing so are properly managed”.

Upon that edifice does the non-round ball man, as he is described, rest his whole case.

[Lord Strathclyde]

The noble Lord, Lord Grenfell, asked whether the Electoral Commission was going to change its mind. I said that it is not going to change its mind because it is rock solid. It has made the assessments, done the research and taken a view. We have accepted that. None of the amendments so far would give us cause to change that view. All these issues were debated in the elected House—in another place. We have had substantial votes on the changing of the date and the different structures of different electoral systems.

What concerns me most is that many noble Lords, who are opposed to this Bill, oppose it because it is one of the political ideas that binds this coalition. In opposing this they see a valuable weapon in bringing down the coalition. I thank the noble Lord, Lord Rooker, for his kind offer of a lifeboat; I hope he will take it in the spirit in which it is intended if I cannot accept it and very much hope he will withdraw his amendment.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

15: Clause 1, page 1, line 6, at end insert—
“( ) The date of the referendum shall not coincide with any poll or polls for any parliamentary assembly or regularly held local government elections.”

[Lord Falconer of Thoroton]

My Lords, Amendment 15, which stands in my name and that of my noble friend Lord Bach, concerns the combination issue, which has been debated on a number of occasions.

The speed with which the Bill has been put together has been justly criticised. One consequence of the haste has been a lack of consultation on the date of the proposed referendum. The Scottish Parliament and the Welsh Assembly were not consulted about the date, and during the debate on the previous amendment I read to noble Lords the view that the Scottish Parliament and the Welsh Assembly took on that matter.

The poll, as proposed, will be on 5 May next year. On that date, elections are already scheduled for the Scottish Parliament, the Welsh Assembly, the Northern Ireland Assembly, 279 local authorities in England and 26 local councils in Northern Ireland, as well as some mayoral elections. Thanks to the questions asked by my noble friend Lady McDonagh, who sadly is not in her place, we have learnt that, although the legislation has not yet been passed, there will in addition in certain places be a number of referendums on whether there should be mayors. Therefore, 5 May will be a busy electoral day for the vast majority of the British public, even without a referendum vote, and it will be made all the more busy if the poll on changing the electoral system goes ahead on 5 May as well.

We are not suggesting for one moment that voters will be unable to vote in more than one poll at once, but the potential for confusion and administrative complexity must be acknowledged. In its assessment of a combination of referendums and elections, the Electoral Commission pointed to risks arising from different regulatory regimes running concurrently. These regulations can refer to spending limits and also to the make-up of the electoral register. As my noble friend Lord Foulkes informed us in Committee last Monday, overseas voters, for example, are on the parliamentary franchise but not on the local government franchise, whereas citizens of European countries living in the United Kingdom are on the local government franchise but not on the parliamentary one.

Campaigning for the multitude of votes on 5 May 2011 will also cause a muddle. The election campaigns for the local and devolved assemblies will be held on a party basis but the campaign for the referendum will be cross-party. I may be of the same opinion as many noble Lords opposite when it comes to deciding whether we should adopt the alternative vote system for elections to the House of Commons but, should I meet the noble Lord the Leader of the House on the streets of London, I do not believe that we will be arguing for the same party candidate to be returned. On reflection, no party candidates will be returned in London because there will be no voting in London, so I shall be very confused if I am there.

The Gould report on the 2007 elections in Scotland identified the combination of polls as one of the most controversial aspects of the votes that took place on 3 May 2007. Gould concluded in his report:

“If local issues and the visibility of local government candidates are viewed as a primary objective, then separating the Scottish parliamentary from the local government elections is necessary in order to avoid the dominance of campaigns conducted for the Scottish parliamentary contests. In addition, separating the two elections would result in minimising the potential for voter confusion”.

The issues surrounding the local and devolved elections already scheduled deserve the space to be debated and aired without the distraction of totally different matters relating to the referendum. Similarly, if the arguments surrounding the merits or demerits of changing the voting system for the House of Commons are to be fully discussed and understood, they need their own time and space as well. Changing the voting system is a major and significant constitutional reform. It should not get lost among campaigns and arguments.

We believe that our argument for no combination of polls is strengthened given the circumstances in which the date of the referendum vote came about—five days of coalition negotiation and we are told that there is to be a vote on 5 May 2011. It is the sort of thing where it would be useful to consult more widely and then come to a sensible conclusion about the date. Despite knowing that the devolved Assemblies would be voting on this day, neither Scotland, Wales, as I have said, nor Northern Ireland has been consulted on the referendum date. Alex Salmond wrote to the Prime Minister in the following terms:

“I believe that your proposals to hold a referendum on the same day undermines the integrity of the elections in Scotland, Wales and Northern Ireland. These elections are of profound importance to our citizens and I believe they have the right to make their electoral choices for the respective devolved chambers without the distraction of a parallel referendum campaign on the UK voting system”.

The Welsh Assembly Government have been similarly scathing. The fear of distraction from other polls to be held on 5 May was the motivation behind the Welsh Assembly’s decision not to hold its own referendum on extending powers to the Assembly on the same day as Assembly elections.

The cross-party Constitution Committee of your Lordships’ House has noted opposition to the combination of polls. It has quoted the matters I have identified from the Scottish Parliament and the Welsh Assembly and agrees with that sentiment.

There is a critical issue which all of those issues are but an expression of. Our Constitution Committee said that if you have an election on the same day as other elections, even assuming that you can get through the issue of confusion, there is evidence showing that the reform issue will be swamped by the issue of who you want to have as your elected representative, whether it be in the Scottish Parliament, the Welsh Assembly or the local authority. That is what the evidence shows.

I understand why those negotiating the coalition agreement five days after the election were unaware of that evidence. However, now that we know that the experts are saying that this is the position, and in view of the fact that we are dealing with an issue as important as a change in the electoral system, it is very difficult to see what damage, beyond the money that the extra poll would cost, would be caused by having it on a different date. I cannot believe that the Government honestly think that if we had to have them on different days we could not afford to have them. I cannot believe that they honestly think they could not get enough voters out to make it plausible. If they do think that then we should not have this referendum at all.

I ask the noble Lord the Leader of the House to focus on the issue. He wants a plausible referendum which people have confidence in. Listen to the evidence, and have it on a separate day from all of those other polls. I beg to move.

[Lord Strathclyde]

I am very grateful to the noble and learned Lord for introducing his amendment. As he laid out, it seeks to prevent the referendum from being combined with any other poll. I am aware of the concerns that have been expressed regarding combining polls next May: we had some of them in the previous debate, and last week. However, as I said earlier, 84 per cent of the electorate will already have a reason to go to the polls on 5 May 2011, and combining this with other polls on that day will save in the region of £30 million across all polls.

Combined polls are not unusual and I have every confidence that voters will be able to distinguish between the different polls taking place—in fact, it is increasingly strange to suggest otherwise. What does the Electoral Commission say? It advised that it is possible to successfully deliver these different polls on 5 May. The commission also issued briefings throughout the Bill’s passage through the Commons and has concluded that the Bill contains,

“the necessary provisions for the combination of the referendum poll with the scheduled elections. We are satisfied that the technical issues we have identified with these provisions to date have been addressed by the Government.”.

The commission went on to say:

“The Government has tabled a series of amendments … to reflect relevant changes to the election conduct rules made by the revised conduct Orders for the May 2011 elections to the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly and local councils in Northern Ireland, which have been laid before Parliament. We welcome these amendments which seek to ensure that the combination provisions are accurate and workable”.

The noble and learned Lord quoted the Gould report. I, too, have read what he said, and we can all quote selectively from it.

[Lord Falconer of Thoroton]

Before the noble Lord quotes from the Gould report, could he identify for the House the occasions on which a referendum and an election have been combined on the same day in Britain?

[Lord Strathclyde]

I cannot quote a combined national referendum and national election but that does not mean that you cannot have one now. In respect of the comparison with 2007, Ron Gould said:

“I do not believe that holding both on the same day would create the same degree of confusion and resultant rejected ballots especially if sufficient advance public information and guidance was provided to the voters”.

The rigorous testing carried out by the Electoral Commission should also reassure those worried about voter confusion. The new draft clearly enables the electorate to understand the choice they are being asked to make and to express their views. The Bill also gives the Electoral Commission a role in providing information about the referendum and how to vote in it, which will help to minimise confusion. For those reasons, I hope the noble and learned Lord will feel that we have covered all the questions that he posed.

The only election which comes to mind when there was a combined referendum was the one which the noble and learned Lord will remember so well in London in 1998.

--- Later in debate ---

[Lord Strathclyde]

It is as much a mystery to me as it is to my noble friend why the Labour Party and the noble and learned Lord believe that it will be impossible for people to vote in one election and in a referendum.

[Lord Falconer of Thoroton]

Let me help. What happens is that people concentrate on the election of individuals and they do not focus on the change. As I am on my feet, perhaps I may also say that I was struck by the reference to confidentiality. Has the noble Lord been trying to keep secret from Scotland and Wales the fact that this referendum was going on?

--- Later in debate ---

[Lord Strathclyde]

I certainly do not think that they are the enemy either. The point I was making was that the correct announcement was to make a single national statement, which is precisely what we did. The noble Lord, Lord Snape, says that nobody understands what AV is. That, of course, will be up to the campaigns and the Electoral Commission to explain. As for the noble Baroness, Lady Hayter, and her issues about knocking-up, again, this is a campaigning issue and it will be up to the campaigns to decide how best to get people to vote yes or no during the course of the campaign.

[Lord Falconer of Thoroton]

This debate followed the pattern of the last debate: the noble Lord, Lord Strathclyde, was incredibly attractive on the periphery of the debate but refused to answer the central issue—the swamping argument. Instead, he said that we were saying it was impossible to have the debate, which was very disappointing. He was arrogant in treating the request of the Welsh Assembly and the Scottish Parliament for an apology. My noble and learned friend Lord Morris of Aberavon made it absolutely clear that he was expecting not a personal apology but an indication from the Government that this is a serious matter, and an apology—or token of acceptance—that this is not something to be laughed at. Perhaps one reason why the debate was quite frustrating was the dismal performance of Ministers in dealing with the heart of the issue. The only way that it is possible to make the Leader of the House concentrate on the issues is to keep putting them. I would therefore like to test the opinion of the House on the combination issue.

--- Later in debate ---

I am not sure whether that is what is meant by a proportional vote system, but if it is not it has to be specified in the amendment. Does it mean STV? Does it not mean STV? Does it mean strict proportionality? Does it not mean strict proportionality? This amendment as it stands deals totally inadequately with the issues that we face in possibly revising the voting system upon which the House of Commons is elected.

[Lord Falconer of Thoroton]

My Lords, that was a fantastically revealing debate. The noble Lord, Lord Skidelsky, delivered an extremely good speech that was rational, reasonable and sensible. It basically said that, if we are going to have a debate about constitutional reform, let everyone have a reasonable choice. Unfortunately—this is no fault of the noble Lord, Lord Skidelsky—he has absolutely no understanding of what is going on in relation to the proposal for constitutional reform that is being advanced.

For the past 13, maybe 20, years, our approach to constitutional reform as a nation has been that this House has the role at least of producing as good a constitutional reform as we can. The work of the Cook-Maclennan report, which had lots of years behind it, was to produce the best constitutional reform. Extraordinarily, this constitutional reform, unlike any other constitutional reform I can remember, is being conducted without Parliament having a view on it. Individual parliamentarians like the noble Lord, Lord Lamont, who delivered an excellent speech, have a view on constitutional reform, but neither Parliament, nor indeed the Government, has a view on this reform. They had a view on devolution in 1997, and Parliament had a view on the Common Market in 1975, but this is a process, not support for constitutional reform.

The perfectly reasonable amendment in the name of the noble Lord, Lord Skidelsky, therefore meets a car crash. The first part of the car crash is the noble Lord, Lord Phillips, who, with eyes popping with sincerity, tells us that he is strongly in favour of AV, having never supported AV before. The noble Lord, Lord Rennard, then gets up and says that he has been talking about constitutional reform since he was 15—I rather agree with the noble Lord, Lord Foulkes, when he says “poor Lord Rennard”, whom we greatly admire in this House—and he says that he supports the alternative vote system. This lot on the Liberal Democrat Benches are therefore standing on their heads. The noble Lord, Lord Phillips, has the nerve to say that they are doing this to restore the people’s trust in our parliamentary representatives by adopting a system that the Liberal Democrats have opposed for so long and which, as has often been said, is described by Mr Nicholas Clegg as “a miserable little compromise”. The public think that they are doing this to get more seats, not because they are sincere, so they are eroding public support. Sensibly, the party opposite has remained completely silent throughout this debate in relation to whether there should be a change to the electoral system. Members opposite looked patronisingly on the Liberal Democrats for being so easily gulled into behaving in a way that brings the whole system into contempt.

The noble Lord, Lord Baker, in an embittered little speech, had the nerve to say, “I have been privileged to listen to a seminar on electoral reform from the Labour Party”. Yes he has, and he is lucky to have done so because no one else in the whole country appears to be debating what the right system is. Surely the least the public could expect is Parliament debating what the best system is, because no other debate is going on. In answer to the noble Lord’s question about how to bring all the strands together, I have great sympathy for the amendment in the name of the noble Lord, Lord Skidelsky. There are problems with it. It is pretty eccentric to choose an electoral system on AV when you are asking the public to determine whether they like AV best. I understand why that is being done—it is a rational way of doing it—but I am afraid he is wasting his time because this constitutional reform is motivated not by what the best constitutional reform is but by a grubby deal that was done that had no reference to what was best for the public.

[Lord Phillips of Sudbury]

The noble and learned Lord has made a rather passionate attack on my position. I am not standing on my head and I have not argued anything other than that I believe that this referendum should be held on an AV system, and I have explained why.

--- Later in debate ---

[Lord Falconer of Thoroton]

I was under the impression—obviously wrongly—that on previous occasions the noble Lord had supported AV+, as suggested by Lord Jenkins. Indeed, his party supported that, but I was obviously wrong.

[Lord Maclennan of Rogart]

I am extremely grateful to the noble and learned Lord for his kind references to the agreements arrived at between Robin Cook and me. He will also remember in the context of his suggestions that this is just a stitch-up: that the Labour Party in Government did not implement the Cook-Maclennan proposals on electoral reform, despite a manifesto commitment to give the public the opportunity. In those days the Labour Party was not in favour of PR; yet it committed itself to giving the public a choice. Where is the difference now?

[Lord Falconer of Thoroton]

The noble Lord is right. We did not implement Lord Jenkins’ proposals. We said that if we were going to implement a change, there would be a referendum. I fail to see how that justifies implementing a system of election which Lord Jenkins said would sometimes lead to greater disproportionality than the present system. As the noble Lord, Lord Lamont, has said, that leads to the second party’s second preference votes having no say in the answer. Although he is absolutely right to condemn us for that, I do not think that it allows the public to have sicked upon it a system that absolutely no one wants. My position on the amendment in the name of the noble Lord, Lord Skidelsky, is that I admire his logic in proposing it, but I would not support it because of the technical changes. In a sense, I think he is wasting his time.

[Lord Strathclyde]

If noble Lord, Lord Owen, had been here—like others I wish him well—I am sure that he would have been immensely proud of the way in which the noble Lord, Lord Skidelsky, moved his amendment. I expect he would also have been reminded of the reasons why he left the Labour Party in the first place.

The purpose of the amendment is to give people the choice of a proportional system along with the choice of first past the post and the alternative vote. As the noble Lord, Lord Skidelsky, explained, they had previously tabled an amendment giving a choice of AV+, AMS or STV but had subsequently changed their amendment, so it was not about specifically wanting to pose AV+, AMS or STV as options in their own right but to pose the principle of PR as an option.

We believe that on an issue as fundamental as voting reform, the public need to be given a clear choice that will produce an equally clear result. The key point is about the impact that this sort of approach will have on the result. I understand that the noble Lord wished to see a multiple choice of voting options, including some form of PR. However, for the sake of simplicity—this is the crucial point—it is better to present people with a simple yes/no alternative, exactly as set out in the Bill. Multiple choice questions go against the recommendations of the Lords Constitution Committee report on referendums, which concluded that the presumption should be in favour of questions posing only two options for voters. That is one of a number of many points on which we agree.

A referendum on AV replacing the existing system will give a clear choice to the electorate, with the ability for them to express a clear view. Offering more than one choice could lead to an indecisive result and confusion over the interpretation of the result. The watchwords that we need to stand by when holding any referendum are simplicity, clarity and decisiveness. We would risk disregarding each of those if we went down the road suggested by these amendments.

The question in the Bill as it currently stands reflects the recommendations of the Electoral Commission, which tested the question through focus groups and interviews with members of the public as well as through input from language experts. This amendment risks going against that independent advice from the Electoral Commission, which recommended that, unlike a question requiring a yes/no answer, this style of question has never been used in a UK-wide referendum, and, as such, fuller testing would need to be undertaken before recommending this style of question ahead of a more traditional yes/no question.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Tuesday 30th November 2010 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, we have had a good and very important debate for precisely the reasons set out by the noble Lord, Lord Alton. Everyone agrees that there has been no pre-legislative scrutiny, no White Paper and no public consultation. What my noble friend Lord Campbell-Savours is saying is this: yes, let us have a referendum on an alternative vote system—no doubt he would say that we should have it within a specified period—but, before it, let us work out what the best alternative vote system is. He identifies three systems, or perhaps four. The first is the one used in Queensland, Australia. You do not have to use all your votes; you can use just one. He pointed to the fact that sometimes three-quarters of those who vote do not use anything other than their first vote. He then pointed to the federal system in Australia, where you have to use all your votes. The noble Lord, Lord Deben—I am sorry, the artist formerly know as John Selwyn Gummer—pointed to the fact that that gives rise to difficulties. The third system my noble friend cited is that used in the London mayoral elections, where you identify the top two, and then all the second preferences are distributed between number one and number two.

All of those are alternative vote systems. Which is best? I have no idea. The one that the Government have adopted—I know not why; they have not said—is the one used in Queensland. Is it right that we put before the British people a scheme that the noble Lord, Lord Deben, describes as the worst? He says it is the worst, for reasons I do not properly understand, and he hopes that that will lead to the rejection of the alternative vote system.

If we are going to change the constitution, we need a plausible process, for the reasons that the noble Lord, Lord Alton, gave. There needs to be some thought given to what is the best alternative vote system if there is to be a referendum. The idea that the nation has to accept what was agreed over those five days as the only one is—with the greatest respect to the coalition—arrogant. I understand politics, but people can say no to politics as the reason for something happening.

The noble Lord, Lord Campbell-Savours, has thrown a sharp light on the consequences of trying to carry out a constitutional change as a piece of politics, like this. The right thing to do is to have a process by which there would be proper consideration of which of the AV systems is the best. As I understand what the noble Lord, Lord Campbell-Savours, suggests, a commission of inquiry should be set up. It would report to Parliament and, in the light of the report, Parliament would then, by a resolution, decide which of the alternative vote systems to put to the public in a referendum. In this way it would capture what the coalition wants to do, but it would do it in a plausible and sensible way, and we would not be steam-rollered into doing it in a way for which we have no explanation.

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

The noble and learned Lord is accusing the Government of not having careful thought and of being outrageous, yet only a few months ago he supported the Labour Party manifesto, which had at its core support for AV.

[Lord Falconer of Thoroton]

We lost. In those circumstances, I do not think that relying on what we did justifies you doing the wrong thing.

[Lord Rennard]

Will the noble and learned Lord tell us which alternative vote system was contained in the Constitutional Reform and Governance Bill, which he supported not many months ago, and why his Government chose that particular alternative vote system?

[Lord Falconer of Thoroton]

I never voted in relation to the Constitutional Reform and Governance Bill. I assume the system was the one that is now being put forward.

If we do not have a proper, independent debate—which I believe will carry much more weight with the public—then we have to have the debate here as to which is the right system. It is a distressing aspect of this debate, but inevitably when we raise such issues, instead of the other side engaging with the issues, we get the noble Lord, Lord Tyler, appearing to say to the Cross Benches—I have not read Hansard yet, which I will check—“If you vote in favour of procedural manoeuvre, it’ll be 100 per cent elected”. What conclusion are we supposed to draw from that? Then the noble Lord, Lord Rennard, appeared to say, “We have debated this long enough. Let us get on with it”. Let us either debate the issues, or let us have a commission of inquiry to look into what is the right AV system in the context of a timetable, so that the AV vote will take place, but it will be on the basis of proper information. The Front Bench will support the amendment if the noble Lord, Lord Campbell-Savours, puts it to a vote.

[Lord Strathclyde]

My Lords, perhaps there should be a word from this side. My noble friend Lord Deben said that we should be grateful to the noble Lord, Lord Campbell-Savours, for introducing the amendment; I agree with him. I thank him for his support because he said that he did not agree with it and, as he is not in favour of referendums at all, that is a bold step. I also thank my noble friend Lord Rennard for his support. The noble Lord, Lord Lipsey, said that it was sheer folly to go down this route without an inquiry. In moving his amendment, the noble Lord, Lord Campbell-Savours, said that there should be an inquiry, that there are deficiencies in AV, and that other systems should be examined. All this may be true. The noble Lord, Lord Rooker, said that later in Committee he would invite the House to vote on other systems. I do not want to encourage him to do so, but that must be the right way of dealing with these issues.

The amendment seeks an inquiry but we believe that on an issue as fundamental as voting reform the public need to be given a clear choice which will produce an equally clear result. For all the arguments that may take place about how AV works, the attraction of the approach that we have taken is that the Bill sets it out in Clause 9 and Schedule 10. Any questions about how AV works or what form of AV is proposed can be resolved by looking at the Bill. That would not be the case with these amendments and the result would therefore be a lack of clarity, voter confusion and scope for misrepresentation about the merits of the various systems during the campaign.

[Lord Falconer of Thoroton]

As I understand the amendment of the noble Lord, Lord Campbell-Savours—and we should be clear about this—the effect of the resolutions he proposes is that the Bill will then contain one system of AV upon which the public would vote. The noble Lord’s points about clarity do not bite.

[Lord Strathclyde]

I stand by what I say unless the noble Lord can produce further amendments reflecting how he believes the various systems of AV should be explained in the Bill. We have done so. We have done the work and we have explained in Clause 9 and Schedule 10 exactly how it works.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, my name and that of my noble friend Lord Bach are also on this amendment. Clause 8 requires the Minister to make an order bringing into effect a new voting system if two conditions are satisfied—if there is a yes vote by a simple majority, with no threshold, in the referendum, and if an order has been introduced bringing in the first effects of a new review under the second part of the Bill. No further questions would be asked, once there is a yes vote and new constituency boundaries are introduced. This is not the way that any referendum has been carried out in this country, save in the 1979 referendums on Welsh and Scottish devolution.

Noble Lords around the House have pointed out that we supported a compulsory referendum last time and that the noble Lord, Lord McNally, supported a consultative referendum. On the basis of that, noble Lords will have to address this issue on its merits. Should the referendum be indicative or compulsory? I submit that there are two reasons why it should be indicative.

First, the point made by the noble Lords, Lord Rooker and Lord Hamilton, was that you do not need a threshold, but it is plain that there are certain levels of turnout and certain levels of yes vote that no one would regard as a sufficient mandate for the change. Those levels are best left to political judgment at the time. I agree with the noble Lord, Lord Hamilton, who said that the Liberal Democrats should have no fear if there is a clear majority on a reasonable turnout in favour. However, suppose there is a 51 per cent majority in favour of AV on a 20 per cent turnout. What then would be the view of noble Lords on whether there was a mandate? Let that be judged after the referendum, not before.

The second reason in favour of an indicative, rather than a mandatory, referendum is, as we discussed on the previous amendment, that the Bill contains one particular form of AV, when we know there are three respectable forms of it. Once the public have indicated a preference in a referendum for AV, the right course is for Parliament to debate properly the best system of AV to adopt—perhaps after some public consultation. This does not cost anyone any timetable, but makes it possible for there to be a proper debate on what the right system is.

[Lord Phillips of Sudbury]

Does the noble and learned Lord not think that a merely consultative referendum could depress the turnout, because many people would say, “This is just asking us what we think and they will go back and do what they want”?

[Lord Falconer of Thoroton]

No I do not, and what happened in the Scottish and Welsh referendums indicates that that is wrong. It is a question of being clear that the referendum is intended to be a precursor to legislative change, as it was in relation to the 1997 referendums in Scotland and Wales. The noble Lord is wrong.

For the two reasons that I have given—namely, that an indicative referendum avoids the need for thresholds and allows for a proper debate on AV—I support the amendment of the noble Lord, Lord Rooker.

[Lord McNally]

My Lords, I am grateful to the House for this debate. Observers will see a pattern developing: reform, but not this reform; people did it to decide, but not on this particular date; and we want to help, but only on the basis of delay. I am afraid that most of the comments are based on that approach.

There is, in fact, very little pattern to constitutional reform in this country. The great Reform Bill was passed in the other place by a single vote. The Welsh Assembly referendum was carried by 50.3 per cent to 49.7 per cent. I remember it well. I was just about to go to bed and said to my wife, “I’ll watch this first Welsh result come in, and then I’ll be up to bed”. At about a quarter to six in the morning, the final result that tipped the balance came in. However, I do not see parties campaigning now to reverse that decision.

I remember the Cunningham amendment. The key issue was that George Cunningham was very much against devolution, and his amendment was there to try to prevent devolution and succeeded in delaying it for 20 years.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Tuesday 30th November 2010 Lords Chamber

[Lord Falconer of Thoroton]

I think it would be helpful if I set out the Front Bench’s position. Our position is that it would be a good thing to split the Bill. At the end of last week, I believed that the Motion would have the effect of splitting the Bill. Further constructive discussions with the Clerks yesterday revealed that if the Bill were split, it would nevertheless have to come back together again before it went to the Commons. In those circumstances there is no purpose in a split unless the Government agree to a split which allows the two Bills in the hypothetical split to go at separate paces. It seems obvious that the Bills should go at separate paces, because one has the drop-dead deadline of 5 May whereas the other, which is much bigger, will take longer.

The Front Bench’s position is that we support the principle of a split but recognise that this Motion cannot achieve it. We will therefore not support it in any vote. I understand from my noble friend Lady McDonagh that she will not press it to a vote. We support her in asking the Government to think about that. I have just one further point. Should anyone in this House wish there to be any delay, I suggest that they urge the noble Lord, Lord Tyler, to make more speeches.

[Lord Hunt of Wirral]

My Lords, I rise just to respond to the noble and learned Lord, Lord Falconer of Thoroton—it is a brief point. Life is always difficult in opposition, particularly when one has been in government for so long. I underwent 13 years of opposition and recall that I could have resorted to procedural devices on many occasions.

It is no use the noble and learned Lord shouting from a sedentary position.

[Lord Falconer of Thoroton]

Let me make clear our position: we are not supporting the Motion. So perhaps this avuncular chat could be postponed to another occasion.

[Lord Hunt of Wirral]

I want to know who is the uncle.

All I will say is that we have suddenly begun to embark on a number of procedural debates. That is all well and good, and it is part of the tradition of the House that we should do so. However, I question whether we need to explore the uncertain waters of hybridity, and whether we should ignore 99 years of tradition by questioning a money Bill. Now when we need to proceed to our normal function of revising and improving a Bill, I simply say to the Opposition that they should take time to think.

When I was opposing the noble Lord, Lord Mandelson, of Foy, on the Postal Services Bill, I was made aware that there were two or three procedural devices that I could have resorted to had I wanted to delay the Bill. I reached the conclusion that I should do my best from the Front Bench to enable this House to do what it always does well, which is to revise and improve. I would just say that reputations take generations to build, but they can be lost overnight by an irresponsible Opposition.

I know that my uncle, the noble and learned Lord, responds to Shakespeare. Perhaps I may just quote again:

“O! I have lost my reputation. I have lost the immortal part of myself, and what remains is bestial”.

They should think again.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Thursday 25th November 2010 Lords Chamber

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

My Lords, on behalf of my noble friend Lord McNally, I beg to move the Motion standing in his name on the Order Paper. It may be helpful if I give the House a brief explanation because it replaces a Motion that had been tabled and was due to be agreed yesterday. However, following constructive discussions earlier this week with the noble and learned Lord, Lord Falconer of Thoroton, the Government withdrew the original Order of Consideration Motion on the Bill, and we have now come forward with the revised Order of Consideration Motion before the House today. The noble and learned Lord made the case that the revised order of consideration would be for the benefit of the House as a whole in structuring discussion on the Bill and would help to speed its passage. I was happy to agree and I am sure that the whole House will be receptive to these propositions.

[Lord Falconer of Thoroton]

I express my gratitude to the noble Lord the Leader of the House for his constructive approach to this. The revised Motion will help the constructive discussion of the Bill, which will require the responsible scrutiny that I know the House will give it. That scrutiny will necessarily be long, but I am sure that it will be worth while.

Motion agreed.