Parliamentary Voting System and Constituencies Bill
Lord Falconer of Thoroton Excerpts(14 years, 4 months ago)
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Lord Falconer of Thoroton
My Lords, perhaps I will wait for those people to leave who are, disappointingly, not staying for the vigorous scrutiny of this Bill.
Clause 5 ensures that media outlets—specifically, newspapers, periodicals, the BBC, S4C in Wales and other licensed broadcasters—are not caught by the spending restrictions in place for the referendum, as outlined in the Political Parties, Elections and Referendums Act 2000. As yet another case of the consequences that befall legislation that is brought forth in haste and without time for pre-legislative consultation, Clause 5 was added to the Bill as a government amendment in Committee in another place.
The problems with the Bill, as introduced, were highlighted in the report of the Political and Constitutional Reform Committee of the other place, which brought to the attention of Parliament the ambiguous position of the media under the funding rules, as drafted. Unlike the spending limits that apply to elections, the definition of referendum expenses includes any material which provides general information about the referendum or puts any argument for or against the referendum question. As a result, for example, a newspaper editorial would constitute referendum expenditure.
I think that noble Lords on all sides of the Committee would be in favour of seeing as well informed a referendum campaign as possible, and newspapers are likely to play a vital role in that process. We obviously cannot have a situation where they are restricted from writing about the referendum, so the inclusion of Clause 5—or something like it—was necessary, but we believe that it can be improved. We are concerned that as a consequence of the planned combination of the polls on 5 May, there is significant potential for confusion in the audit of expenditure on elections. These two amendments seek to enforce the distinction between any broadcast or press advertisement relating to the referendum campaign and those relating to the local or the devolved elections.
Clause 5 refers to exceptions to the 2000 Act’s spending rules for the proposed referendum on the voting system for the House of Commons so Amendment 39AA, the first in this group, seeks to emphasise that the broadcasts which are exempted are “referendum campaign” broadcasts. Referendum-related materials and party election materials must be differentiated. Our second amendment, Amendment 39AB, picks up the same point. If political parties are allowed to use their election broadcasts to argue the merits of the referendum, that could lead to claims that the argument is being weighted more on one side than the other. Party election broadcasts should be about the elections for individual officeholders, not the referendum. If they are about the referendum, that leads to the possibility of the expenditure being distorted. The changes recommended by our amendments are important. It should be in the interests of all parties and none that clarity over the administration of press coverage and expenses during the election period is maximised.
Lord Grocott
My noble and learned friend has more experience of reading these Electoral Commission reports than I have, but is it not unusual that the whole thrust of what the Electoral Commission is saying about his amendment seems to be almost entirely supportive of it but does not contain a recommendation? The Electoral Commission makes a clear recommendation for one or two of the other clauses that it is commenting on. Does he have any information that I do not have on the basis on which it makes an argument and then does not reach a conclusion, as opposed to the occasions when it makes an argument and does reach a conclusion?
Lord Falconer of Thoroton
First, I agree with the premise on which the question is based; when the Electoral Commission opposes an amendment—of anybody’s; this is not just to do with party—it says so. It does not, however, appear to support amendments; even when it gets right to the point where logically it should support them, it does not say that it is supporting them. All I can do is say that I note the same approach as my noble friend Lord Grocott. I have no idea why it does that.
Lord Campbell-Savours
My Lords, I support the amendment because it is vital that we have a level playing field wherever possible during the referendum campaign. Section 127 in the 2000 Act contains some ambiguity which really needs to be clarified. The way the legislation has been framed worries me because, if the 2000 Act might be misunderstood in this area, there is the possibility of expenditure bleeding over from political campaigns for the Scottish Parliament, or whatever, into the referendum campaign. The Conservative element of the coalition—I will keep drawing a distinction between the Conservative and Liberal Democrat elements in the coalition—may well want to place a different emphasis in that campaign. The Conservatives might wish to block electoral reform wherever possible and use their party election broadcasts to do so unless there are adequate safeguards built into the legislation. Equally, the Liberal Democrats might take a converse view and argue that they support electoral reform. They may wish, despite their reference to it being a miserable little compromise, to advocate the use of Queensland AV and use their money available for election broadcasts to promote that issue.
Can we have a clear statement in the Minister’s response today that he would not expect parties in the coalition to adopt that particular ruse, and that the legislation that will govern these matters is absolutely clear when the referendum campaigns take place?
Lord McNally
I am sure that that intervention has been noted. Indeed, I am looking forward to an e-mail on Monday that says: “Sorry, can’t get down today. Snowed in. G Foulkes”. Perhaps I am hoping for too much. As I say, I hope that the noble and learned Lord, Lord Falconer, will take what I have said in the spirit in which it is intended. As the noble Lord, Lord Grocott, said, we refine these issues each time. The noble Baroness, Lady Liddell, rightly reminded us of how things can go badly wrong. We would like to talk further about this.
Lord Falconer of Thoroton
If the noble Lord is saying to me, “In principle I agree about the problem that you have identified, so let’s talk about how we solve it”—the problem being that no political party should be allowed to use its political broadcast to promote or demote any of the electoral systems at issue—I am more than happy to wait until Report stage. The noble Lord read out parts of his brief in a jokey manner, but that gave him complete room to say, “No, we are not going to make any changes”. Therefore, I need something a little more than what he said. I need an indication that in principle he accepts the broad problem that we have identified.
Lord McNally
I am afraid that I cannot do that. I am offering to talk very seriously about this. I say in a strictly non-jokey way that there are issues that we have to look at if we are not to fall into innocent traps, as the noble Baroness, Lady Liddell, reminded us. There would have to be discussions without preconditions on either side. If the noble and learned Lord wishes to press the amendment, I shall resist—and that would be a mistake for both of us.
Lord Falconer of Thoroton
My Lords, I am grateful for all the interventions. I am also grateful to the noble and learned Lord, Lord Mackay of Clashfern. I completely agree with what he says. Section 127 of the Political Parties, Elections and Referendums Act 2000 currently prevents broadcasters from transmitting,
“any broadcast whose purpose (or main purpose) is or may … be assumed to be … to further”,
a referendum campaign. I agree with him that there are wider ramifications than simply in relation to this. I completely trust the noble Lord, Lord McNally, so I am more than happy to accept his assurances and I am more than happy to discuss the matter in the spirit in which he has made the offer. I am absolutely sure that the two of us will be able to reach a solution that is acceptable to both of us. Furthermore, I am grateful to the noble Lord opposite. I should tell him—although I am sure that he will not believe it—that I was aware that, if I pressed the amendment to a vote, I would not be able to bring the matter back, but I think that the Committee is grateful to him for reminding us of that. Therefore, I beg leave to withdraw my amendment.
Lord Maxton
My Lords, this is the first time that I have spoken in these debates. On the day on which we celebrate the fifth anniversary of the launch of YouTube, I think it is right that we raise the whole question of the internet and particularly that “channel”, although that is not the right word. Anyone could place a video on YouTube expressing their views in the hope that many people would watch it, and that could change the nature of the way in which we voted if there were not some way of controlling it. To be honest, it is extremely difficult to control what goes on YouTube but there certainly has to be something in the legislation that at least tries to do so.
Lord Falconer of Thoroton
My Lords, I indicated in my remarks on the first group of amendments that I proposed to Clause 5 that the clause was introduced to deal with the problems identified by the Political and Constitutional Reform Committee in the other place. In principle, we think that it is a good thing, although other issues need to be dealt with, including the point about the internet made by the noble Lord, Lord Lamont.
I have one question for the noble Lord in relation to that. On the face of it, any expenses incurred in making a broadcast for a referendum—for example, if you got Steven Spielberg to produce it and my noble friend Lord Puttnam to direct it, or the other way round—would not count as expenses. Is that really the Government’s intention?
On a general point, can the Minister say what principles underlie Clause 5 and, in the light of those principles, what is the answer not just to the questions that I have raised but to those raised by other noble Lords?
Lord McNally
My Lords, I thank noble Lords for their questions. The principle is that the clause was inserted in response to the committee in the other place asking for clarification. We have put Clause 5 into the Bill to ensure that media outlets are not caught by spending restrictions that are in place in terms of publishing information about the referendum. The media play a vital role in building public awareness and presenting facts and opinions on the matters raised by the poll. This amendment ensures that the media's ability to carry out that role and to exercise the usual freedom of the press and broadcast media is not restricted in any way. That was our intention.
On the point that the noble and learned Lord has just raised, I will have to check again with the Electoral Commission, but I believe that if in making a referendum broadcast, one or other of the campaigns was to indulge in the kind of expenditure to which he referred, that would be counted as expenses.
Lord Falconer of Thoroton
My Lords, I wish this was as simple as the noble and learned Lord, Lord Mackay of Clashfern, said. The difficulties in this area spring from the inappropriateness of parts of the Political Parties, Elections and Referendums Act 2000 and its rules on expenditure as applied to this particular circumstance. I referred in the first set of amendments to the effect of those rules, which would make editorial material in newspapers part of the expenditure and show how inappropriate they are.
This next set of amendments shows another inappropriateness. I am very glad that the noble Lord, Lord Lamont, is in his place, because the amendments that I propose in this group were prefaced in remarks made by the noble Lord in the debates on the PPERA—if I may call it that—in 2000, where he emphasised the inappropriateness of imposing limits on political party expenditures in referendums when the campaigns on referendums cut across political parties. I fear that these amendments are needed because of the inappropriateness of the rules to which the noble Lord referred.
Limits on spending by permitted participants in the planned referendum on this voting system will be guided by those rules. Clause 6 of the Bill under discussion today makes it clear that the rules will apply with some modifications. Clause 6, and the inclusion of Schedule 9 to this Bill as a supplementary Schedule 15A to the PPERA, explain these modifications and centre largely on providing detailed rules to control the funding of, and spending by, permitted participants who are not registered parties: in other words, individuals, organisations, companies, trade unions and so on.
Amendment 39AC paves the way for Amendment 126 and is presented to the House as a further modification of the PPERA 2000 rules. As debates on the PPERA back in 2000 exposed, the referendum campaign expenditure limits, which were put into law, are potentially misguided. The PPERA states that in the case of registered parties, spending will be limited according to the share of the vote received by an individual political party at the last general election. Schedule 14 of the PPERA, which our Amendment 126 seeks to replace, dictates that if a party received between 20 and 30 per cent of the vote, it can spend up to £5 million. Between 10 to 20 per cent of the vote, the limit is £4 million. The scale goes down to £500,000 for any party that polls below 5 per cent of the vote; £500,000 is a large amount for a single permitted participant to be able to spend, even if that participant is a party of many members.
As the noble Lord, Lord Lamont, said in the debate on the PPERA on 3 April 2000:
“The key mistake the Government have made is to define the caps by reference to political parties”.
He explained that by saying:
“One reason that we have referendums … is to settle issues which cut across party lines. While parties are essential to general elections in order to simplify choice on many different issues, referendums are single issue campaigns”.—[Official Report, 3/4/2000; col. 1133.]
The noble Lord is, as ever, wise. It is right that the designated yes and no campaigns are permitted to spend equal amounts of money in the referendum campaign. By being designated as the lead campaigners, they are the mouthpiece on each side of the yes/no campaign. However, political parties should not be able to spend this much. They should not dominate the campaign. If a political party has a particular view, as one political party has here, in practice it will spend all its money—which will be £5 million, if it is 20 to 30 per cent—in favour of the particular voting system that it supports. That allows much more money to be spent on one side of the campaign, because a political party supports it.
We therefore propose Amendment 126, which Amendment 39AC paves the way for. In Amendment 126, which is almost the last in the group and is on page 28 in the up-to-date Marshalled List, we reduce the amount that a registered political party can spend on the referendum from £5 million to a maximum of £500,000. Some people may think that that amount is too large, but it deals with the very point that the noble Lord, Lord Lamont, raised, which is a good point: namely, that we should look at these campaigns on the basis not of political parties but of whether there is going to be a level playing field. If we allow a political party to spend as much as £5 million, we give a huge advantage if any one of the political parties supports one or other of the particular voting systems.
Finally, there is a separate point in our schedule. The PPERA permits all other permitted participants designated by the Electoral Commission—those that are not designated as the lead yes or no campaign or political parties—to spend £500,000. Frugal times or not, that is a large amount of money. We are concerned that the rules as contained in the PPERA, which are due to apply by way of Clause 6 of the Bill to the planned referendum on the electoral system, would therefore allow a huge range of permitted participants to seek to get the limit of £500,000 and thereby allow one side or the other in effect to get around the limits.
Our amendment makes essentially two points: not to refer to limits by reference to political parties, because that fails to understand the point of the referendum; and not to have a system that has such a high limit—namely, £500,000—for permitted participants, as that allows for abuse. That is why we propose Amendment 39AC, which would pave the way for our proposed new Schedule14A, which would be inserted into the PPERA. That would ensure a level playing field. I am afraid that this problem is another indication of the unsuitability of the PPERA rules as they apply to referendums. I beg to move.
Lord McNally
And this one says, “Have a go at Rooker, while you are at it”. I will take away this issue of the roving multi-millionaire splitting up his money. If I was related to him, I would want him sectioned before he spent the family fortune. In the mean time, I again ask the noble and learned Lord to withdraw his amendment, and I ask the House to adopt Clause 6 in due course.
Lord Falconer of Thoroton
My Lords, it is important to identify what we are trying to achieve here. I think everybody in this House would agree that the right expenditure limits are those which create a level playing field. Both sides should be subject to the same limits. The difficulty about the rules that apply from PPERA is that that does not appear to be the case on the facts of this particular referendum. Perhaps I may identify two specific circumstances as to why that is. The way that PPERA deals with the limits is by setting three separate limits, which are cumulative. The first limit allows the designated lead organisation on each side—the leading campaign organisation for “yes” and the leading campaign organisation for “no”—to have a limit of £5 million. That plainly demonstrates equality there. The second limit allows each political party that got between 20 per cent and 30 per cent of the vote in the previous election to have a cumulative limit of £5 million. That is added to the £5 million for the designated lead organisation. In the current arrangements, we have two political parties that express no view on whether they support the change to AV and one political party that supports the change to AV. The effect on the facts of this case is that there is the designated lead organisation limit of £5 million, and in addition there is £5 million that the Liberal Democrats get to spend on the campaign. Therefore, there appears to be an uneven playing field right from the start.
Separately and in addition to that point is the point made by practically everybody around the Chamber that, if you are an authorised participant—either an individual or a corporation—you can donate up to £500,000. Therefore, there is very little difficulty for somebody who supports one of the campaigns—whether they are companies, individuals with families, or a group of people who have a particularly concerted view—to give, in effect, an unlimited amount of money to one or other of the campaigns.
Our proposition is that, first, you should reduce the amount of the limit for political parties, because otherwise you reach an unfair result. That is precisely the point that the noble Lord, Lord Lamont, made in 2000. It is obviously correct in relation to this because it obviously leads to a limit of £10 million for the “yes” campaign and a limit of only £5 million for the “no” campaign.
Regarding the rich individual, no answer of any sort was given by the noble Lord. I would have been prepared to accept some answer in relation to, first, the party-political point and, secondly, the point about rich individuals. However, not one answer came. The noble Lord merely said, “We are confident that the rules are okay”. This is the same Minister who, in the debate on the previous group of amendments, agreed to go away and think about changing the rules, which he said were not adequate to deal with the position. He is shaking his head. He is right: he did not agree to that but he agreed that he would discuss it, which rather implied that he accepted that there might be something wrong.
Perhaps I may quote what the Electoral Commission says about the two amendments that we are putting forward:
“These are significant changes to the provisions for spending limits at UK-wide referendums set out in the Parliamentary Parties, Elections and Referendums Act. Parliament may wish to consider whether the change might affect the ability of campaigners to put their arguments effectively to voters and the potential implications of changing one aspect of the PPERA rules on campaign spending without further consideration of the overall regulatory structure”.
Therefore, the commission is saying, “Don’t change anything because that might lead to the whole thing falling apart in some way”.
The noble Lord, Lord McNally, says, “If we have made a mistake in relation to these rules, we’ll learn from this”. I think that when we are scrutinising this Bill, our obligation as a House is to consider the merits of the changes that have been proposed. We should not treat the referendum—on a matter which Mr Nicholas Clegg has described as the most important electoral change since 1832—as an experiment but we should have the courage of our convictions and change the system if we think it is wrong. Surely the one thing that we have learnt from America is that money does buy elections, and all the rules that we introduced were intended to stop that happening. However, these rules do not contain fair limits that apply to both sides.
The noble Lord was so good on the first group of amendments and so bad on this one—in that he gave absolutely no explanation and did not really deal at all with the arguments—that I have no option but to test the opinion of the Committee.
Lord McNally
As we drift down this stream, we do, I confess, go into inlets and rivulets.
Lord Falconer of Thoroton
This provision introduces civil sanctions in relation to criminal offences set out in Schedule 9. As I understand it, the criminal offences, of which there are 12 in paragraph 8, are designed to ensure that either permitted participants or authorised—
Sorry, there is not much point me asking a question if you are chattering away.
Lord Falconer of Thoroton
She has got two ears. I agree with that. I will go on. I am sure that the fact that she has two ears has some significance to the story.
There are 12 offences identified in paragraph 8. The purpose of the offences, as I understand it—though I stand to be corrected by the Minister—is that the only people who should be spending money in relation to the referendum are either permitted participants or authorised participants. Therefore the purpose of the criminal offences is to prevent expenditure by anyone other than those people. The way that this is dealt with, as a matter of the criminal law, is to say that if there is a transaction where in effect somebody else’s money is spent, either directly or through a permitted participant or an authorised participant, it is made a criminal offence by paragraph 8 of Schedule 9.
The essence of each of the criminal offences, as I read them—again, I stand to be corrected—is that you have to know if you are committing a criminal offence that either as an authorised or a permitted participant you are using somebody else’s money or as an individual providing the money you know that you should not be spending it on the referendum. Know or ought to know, I should say. What I am interested to know, and that seems a perfectly sensible structure, is what the circumstances are in which it will be decided to bring criminal proceedings and what the circumstances are in which it will be decided to employ a civil sanction. Obviously it will depend on the facts in every case but if know or ought to know is part of it, what distinctions will people rely on in order to determine whether it is civil or criminal? This will be important, because paragraph 8 is obviously intended to be a deterrent to people from breaking the law in relation to the limits that apply—
Lord Lamont of Lerwick
Does the noble and learned Lord agree that the fact that we are debating sanctions in a sense validates the questions that were asked about how the rules were applied, because the sanctions and the fines follow those who break the rules? All the questions about what constitutes one organisation and what constitutes a separate organisation are deeply relevant to the points that he is discussing.
Lord Falconer of Thoroton
I completely agree. I find the idea that we should not be talking at some length about authorised participants and permitted participants entirely wrong. That is why the Minister’s response to the last series was so disappointing. The last series went right to the heart of the issues that relate to the funding of the referendum, because everybody around the House wants a situation in which the same rules are imposed on everybody. I am sorry that the noble Lord, Lord Lamont, got a slapping from the noble Lord, Lord Tyler, for raising the question of the government leaflets, although it was obviously a slapping that he was quite able to cope with. That seems to be the one area where it is authorised to spend money that does not come from an authorised participant or a permitted participant.
I do not dismiss as a joke what my noble friend Lord Gilbert said. Presumably one of the most significant sources of what will be regarded as reliable information in relation to this referendum will be what the Government themselves or the Electoral Commission—I cannot remember which—produce in relation to these leaflets. That will probably be where one of the most significant amounts of expenditure will be. However, I return to my question to the noble Lord—
Lord Lipsey
Before the noble and learned Lord returns to his question, as he must, did he note that when the outbreak of violence took place on the other side—I think that he called it “slapping”—the Minister calmed it by saying that we could talk about all this when we get to Schedule 1? Has he noted that Schedule 1 makes no reference whatsoever to this leaflet and is of no relevance to it?
Lord Falconer of Thoroton
I was not sure when the noble Lord, Lord Tyler, and the Minister envisaged that we should have this debate. If they could identify on which particular issues we should have it, that would be fine. My question—
Lord Grocott
I have been glancing through the Bill, because the reference to the crucial issue of the leaflet hit me by surprise. The Minister looks irritated every time I make a suggestion; that seems to be the effect that I have on him. This is what Committee stages are for. Sometimes almost out of a clear blue sky a very important issue arises. It seems that we are not going to debate this now. The only part that I can see immediately thumbing through the Bill that refers to the role of the Electoral Commission is on page 19. It says:
“The Electoral Commission must take whatever steps they think appropriate to promote public awareness about the referendum and how to vote in it”.
I cannot see anything that refers to leaflets. That is quite probably ignorance on my part, but that was the nature of the debate.
Lord Rooker
My noble friend should turn over the page and see sub-paragraph (2) at the top of page 20. That is permissive, whereas the paragraph that my noble friend read out is compulsory. There is a real problem in paragraph 9 of Schedule 1 about the leaflet and the information. There will be a long debate on sub-paragraphs (1) and (2) of paragraph 9 when we get to it, because what is in the Bill seems quite contradictory to me.
Lord Falconer of Thoroton
The offences under paragraph 8 are knowledge and ought-to-know offences. Can the noble Lord give some indication, because it will obviously be important to the people involved, of what circumstances will determine whether the sanction is civil or criminal? The offences have maximum terms. What is the maximum civil sanction that can be applied? Who will determine whether it is a civil sanction or a criminal sanction?
Lord McNally
First, I do not believe that the role of the Electoral Commission is as passive as the noble Lord, Lord Soley, suggests, as was demonstrated by the fact that it suggested a better question for the referendum, which was taken on board by the Government and implemented in the Bill. I supported the establishment of the Electoral Commission and welcomed the introduction of political input into its deliberations. I remember when we first discussed it, the noble Baroness, Lady Gould, and others and I pointed out that there was a necessity to have some sensitivity about how political campaigning was carried on by mainly voluntary organisations. The Electoral Commission has performed its duties well, and I have every confidence in its being able to carry out its responsibilities under the Bill.
Lord Howarth of Newport
Does my noble friend agree also that the fact that the Bill has been added to on such a massive scale by the Government during its passage through the House of Commons—indeed, we have just been examining a new government amendment—indicates that it was prepared in great haste? Yet at the same time, the Government are insisting that the Bill must move very fast indeed towards the statute book. Can it be right to prepare a Bill so hastily that large-scale improvisations have to be made by the Government in extending it, even as they insist that it is rushed through and therefore skimpily scrutinised?
Lord Falconer of Thoroton
My Lords, I have to rise in relation to the rather casual accusation made by the noble Lord, Lord McNally, that it was just time-wasting down the Corridor. As the noble Lord will know, because he has been a Member of Parliament himself down there, the effect of the guillotine Motion—although he was perhaps not there when there were guillotine Motions—is that certain amendments are not reached because there is not enough time. The idea that they talked on and on to make it last seems to be misplaced. The worry about what the noble Lord said is that that casually dismissive remark is the sort of remark that is then used to dismiss parliamentary scrutiny of Bills—“we can dismiss what is being said because it is all time- wasting”. I thought one of the principles on which his party and the other party with which he is now in coalition put to the electorate was that we would respect Parliament more rather than treating it with the contempt he has just shown.
Lord Campbell-Savours
Before my noble friend sits down, I refer him to column 843 of House of Commons Hansard of 2 November where Bill Cash objected in the strongest terms to the fact that the Government, with the use of a programme Motion, were denying the House the right to debate large parts of the Bill. Is my noble friend aware that Conservative MPs at the other end are egging us on? We are telling them that we want to deal with the Bill in a reasonable way, but they are egging us on to block the legislation. Conservative MPs in the House of Commons want to use Labour Lords to block this legislation. I think it is quite appalling. What we are trying to do is simply deal with the legislation in the most professional way possible.
Lord Falconer of Thoroton
I did not know what Mr Bill Cash said in the other place but it would help in relation to respect for Parliament if the noble Lord, Lord McNally, would think about withdrawing what he said.
Lord McNally
I have been around this Parliament for 40 years and I do not need lectures from the noble and learned Lord about respect for its traditions and for its importance. I did not suggest anything other than something he knows darn well. For as long as I have been here, and long before, Governments have brought in guillotines and Oppositions have complained about lack of time and scrutiny. That is all that I said. That is all that is in Hansard. I am not going to take lectures from the noble and learned Lord about respect for this Parliament and its institutions. I have given my life to this. I believe in it passionately. I respect it as much as the noble Lord, Lord Rooker, respects it. No more, no less. But I am not being lectured to or allowing my words to be twisted. I am simply saying something that every noble Lord knows is a simple truth—nothing more, nothing less—and certainly with no disrespect to Parliament.
Lord Falconer of Thoroton
I have understood the Minister to say that the interventions by Members of Parliament down in the House of Commons were done for time-wasting purposes. I regard that as expressing contempt for their contributions. That is what I was suggesting he might think about withdrawing.
Lord McNally
More than one person has commented that the Opposition spent overlong on certain parts of the Bill and then used that as an excuse for not dealing with other parts of the Bill. Just as I have argued with colleagues who have got a little tetchy about the Opposition’s tactics, I know full well that, as one of my old text books used to say, the principal weapon of an Opposition is delay. I do not object to that, but neither do I fail to recognise it when I see it.
Lord McNally
My Lords, if, when he reads Hansard, the Member for Rhondda is hurt by my remarks, I will try to comfort and reassure him that there was nothing personal in them.
These are minor and technical amendments which ensure that there is single definition of “registration officer” which applies throughout Part 1 of the Bill. This single definition replaces the existing definitions given in the various provisions in Part 1, but does not change the meaning. The amendments provide that “registration officer” has the meaning given in Section 8 of the Representation of the People Act 1983. For England, Wales and Scotland, the individual is the officer who has been appointed to this role for the relevant area. In Northern Ireland, the Chief Electoral Officer for Northern Ireland is the sole registration officer. I beg to move.
Lord Falconer of Thoroton
A drafting point: there appear to be random definitions contained in Clause 7(1). For example, we do not have definitions of “regulated transaction”, “responsible person” or “relevant donations”, which are terms referred to. Yet, suddenly, we have a definition of “registration officer”. What is the basis upon which some terms are defined in Clause 7(1) and not others? Will this not lead to confusion?
Lord McNally
As I understand it, this is an attempt to clarify the specific case of “registration officer”. We do not anticipate the kind of confusion that the noble and learned Lord anticipates in other definitions, but it is important to have a common definition for registration officers.
Lord Falconer of Thoroton
I do not want to be a total brute here, but will the noble Lord write to me? It is pretty clear what “registration officer” means throughout the Bill, but if you do not also define the other terms, there is the possibility that there will be some difference among courts as to what it is meant. Can the Minister set out the basis for selecting some terms to be defined but not others? If he would like to write to me about that, I would be perfectly happy. However, if we are trying to make this Bill a little better, setting out that basis is worth while.
Lord McNally
The noble and learned Lord has brought an entirely new atmosphere to the debate for which I am most grateful. I offer to write to him on the specific point.
Lord Campbell-Savours
My Lords, I briefly intervene to raise something that has not yet been raised. It is to do with the relationship between Members of Parliament in particular parts of the world. The noble Lord, Lord Tyler, referred to a practical issue and it is a practical issue that is of interest to me. I have been sitting here pondering how this would work. We are told that the yes campaign will essentially be a people-based campaign. There is a feeling in the yes campaign that the intervention of politicians might be unhelpful. However, the reality is that politicians, particularly MPs, will want to be involved. It will not be possible to keep them out, particularly where they may have a strong view. Yet the fact that the legislation is framed in this way might lead to campaigns being organised on a district-wide basis. I know that, in the Labour Party, district parties are never as well organised as the constituency parties. I presume that this might well be the case for other political parties.
I suggest that a campaign that is essentially district based might diffuse the role that the MP might wish to play in its organisation. MPs may well find, if the campaign is district organised, that they have to go into neighbouring constituencies. When MPs go into neighbouring constituencies, it often leads to problems—indeed, to problems inside parties, where people from the same political party represent neighbouring seats. In a curious way, by organising the campaign on a district-wide basis, we might interfere to some extent with the role that Members of Parliament wish to play in the campaign because they simply want to avoid argument. The point that I am making is rather subtle in that it deals with relationships between MPs, but the Government should not altogether ignore what I am saying. Ministers in the Government will know from experience that what I am referring to is a reality.
Lord Falconer of Thoroton
My Lords, this is a serious and sensible amendment. It would take some persuading on the part of the noble Lord, Lord McNally, to convince people that my noble friend Lord Grocott’s proposal is not the more sensible approach.
I will explain what the Bill currently proposes for the referendum in Clause 7(2). It proposes to divide the whole country into a series of voting areas: a district in England where there is a district council; a county in England where there are no county councils; a London borough; the City of London, including the Inner and Middle Temples; the Isles of Scilly; a constituency for the National Assembly for Wales; a constituency for the Scottish Parliament; and the whole of Northern Ireland. In relation to those eight separate sorts of voting area, paragraph 2 of Schedule 1 proposes that a counting officer be appointed. In each of those voting areas, the counting officer is in charge of the vote in that area. After the votes have been cast, the counting officer hands to the regional counting officer the certificate of the votes cast. At the same time, with the regional counting officer’s permission, the counting officer makes public how everybody has voted in the voting area. That is except in Northern Ireland, where there is no regional counting officer. The counting officer in Northern Ireland hands over his votes to the chief counting officer, who also then gets all the votes from the regional counting officers. Then the chief counting officer makes an announcement about how the votes have been cast nationally.
That means that the public will become aware of how people have voted in the eight different sorts of voting area specified in the Bill. For example, people will know how a London borough has voted and how Northern Ireland as a whole has voted, but not how individual constituencies have voted in Northern Ireland, whether they are individual constituencies for the Northern Irish Assembly, local authority constituencies or parliamentary constituencies. Nor will it be possible to work it out, because the voting area is the whole of Northern Ireland. In London, you will not be able to tell how individual constituencies have voted.
What is the purpose of this extraordinarily complicated system? Is it, I ask myself, trying to parallel where elections are taking place on the same day as the proposed referendum, namely 5 May? No, because in Northern Ireland the whole of the country is chosen to be the voting area. No, because in London there will be no local authority elections. In Scotland there will be voting in Scottish Parliament constituencies but local authority elections will also be going on. On the face of it, this seems to be an overcomplicated system for identifying voting areas, in which the disclosure of how the votes are cast bears no relation to either parliamentary constituencies or anything else.
The noble Lord, Lord Grocott, has pointed out that a theme has run through the responses of the noble Lord, Lord McNally, to all this. It is that the Government have tried, in putting forward practical proposals, to stick to the normal electoral arrangements. I have never seen these electoral arrangements in any other sort of election. They are overcomplicated and arbitrary in terms of the areas in which declarations will be made, whereas a network of arrangements already exists for parliamentary constituencies. Whenever an election is called, it seems possible to set up a system for declarations and results. On the face of it, the parliamentary constituencies network looks to be far and away the most straightforward and practical. It does not involve these extraordinarily complicated arrangements. Why is the proposal of the noble Lord, Lord Grocott, not a simple way of giving effect to the sort of proposition that the noble Lord, Lord McNally, has been making?
Lord Rennard
In terms of simplicity for the counting areas, does the noble and learned Lord not accept that in Scotland the proposal of the noble Lord, Lord Grocott, would make things rather more complicated? His amendment suggests that the voting areas should be based on Westminster parliamentary constituencies. If the referendum is held on 5 May next year, as is envisaged as a possibility even under the amendments of the noble Lord, Lord Rooker, and if you are counting the votes on the basis of Scottish parliamentary constituencies rather than on the quite different boundaries of the Westminster parliamentary constituencies, it is impractical to have one set of counting areas for the referendum and a different set for the elections to Scottish parliamentary constituencies. Therefore, the reason for the amendment is to try to make it impossible, or at least very difficult, for the referendum to take place on 5 May, and is not in the interests of simplicity, as the noble and learned Lord suggests.
Lord Falconer of Thoroton
I take the point in relation to Scotland. That is probably the only place where one can see some logic in the proposals. However, one cannot see any logic in relation to the rest of the UK. Therefore, maybe the answer—and if the noble Lord were to make proposals on this I might support him—is for us to stick with the Scottish constituencies, but leave everything else to be done on the basis of Westminster constituencies. There needs to be some explanation for why this extraordinary procedure has been adopted.
In addition to the points about practicality, there are two others. First, we have to do this without the benefit of the Electoral Commission’s views, because, as the noble Lord, Lord Grocott, said, the commission has said that that would simply delay the referendum. Sadly, the commission has not given this House the benefit of its views on whether this proposal is more practical than the one in the Bill. Secondly, there is a real force in the argument which states that if we are talking about parliamentary constituencies and how they vote in the future, there is a logic and a force in saying, “Let’s see how individual parliamentary constituencies voted”, because, for the life of me, I cannot see the logic in saying, “We’ll disclose how a London borough or the whole of Northern Ireland voted, but we won’t tell you how individual constituencies voted”.
Lord McNally
My Lords, if anything that has happened over the past four hours suggests that I am not enjoying this process, it is entirely untrue. I will write to Chris Bryant in the morning. I would not want him to think that I was attacking him personally. I am certainly not someone who has objected to the interventions of the noble Lord, Lord McAvoy. A number of Labour MPs have stopped me with a look of sheer amazement and said, “You heard Tommy McAvoy speak?”.
On the point about the Electoral Commission, I hope that noble Lords do not put sinister interpretations on this matter. If our intention is to hold the referendum on 5 May, as is absolutely clear and we continue to make clear, it is no more than the Electoral Commission’s duty for it to say that, if amendments A, B or C were to be passed, the House should be aware that this would make the situation more difficult, impossible, or whatever. The commission should not leave the House to pull the trigger and not tell it whether the gun is loaded. I do not think that the commission has done any more than that. If the Committee wants to pass the amendment, knowing its repercussions, it is open to do that, but it is not improper to say that there would be consequences to an amendment such as this.
Being a skilled advocate, the noble and learned Lord, Lord Falconer, can draw out these various bodies and make a case for a real mishmash of voting areas. In fact, the provisions that we have included in the Bill in relation to voting areas for the referendum ensure, as much as possible, that the same boundaries will be used for the referendum on the voting system as are used for other polls with which the referendum is combined. There is nothing more or less to it than that. The intent of the clause—as is the case in so much of the Bill—is to make the core decision that the electorate are being invited to make as simple as possible.
On the specific question of the noble Lord, Lord Rooker, I can tell him that the City of London is designated separately because, as he will know, it is a separate local government area within London. The other areas are the London boroughs.
Lord Falconer of Thoroton
If the principle is that the counting areas for the referendum are to be as close as possible to those for the other elections taking place on the same day, why will there be one counting area for the whole of Northern Ireland, given that it will be holding Assembly elections on the same day?
Lord McNally
I will write to the noble Lord on that. It seems that one element of confusion is that we are not asking United Kingdom constituencies to make a decision—we are asking for a national vote. It will be a yes or no poll, designed on a national basis.
Parliamentary Voting System and Constituencies Bill
Lord Falconer of Thoroton Excerpts(14 years, 4 months ago)
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Lord Grocott
My Lords, I have been persuaded to make only two brief points, encouraged by the contribution of the noble Lord, Lord Newton. I am always slightly nervous about suggesting that I am an agnostic on a subject, but as he has given me courage, I shall begin by saying that my instinct on this is one of agnosticism. I am not sure whether I have been helped or hindered by listening to the debate and hearing what I thought were two weak arguments—one on each side of the debate.
For those who favour votes at 16, I found the argument that there was an intense interest in different forms of electoral systems among 16 and 17 year-olds very unconvincing. I acknowledge that there is tremendous interest in issues such as those to which my noble friend referred—student fees and the like, and, over the years, in bigger issues such as war and peace—but, please, not in different electoral systems. If such interest exists, it is in a parallel universe to the one that I have inhabited. I have found hardly any adults who are interested in different electoral systems, let alone people aged 16 and 17. I used to think that I understood electoral systems but, having listened to nearly all of the debates so far in the Committee stage of the Bill, I have become more confused as the debates have gone on. I did not realise that there were three types of alternative vote systems and I certainly could not answer in two sentences how the d’Hondt system operates. I find it an unconvincing argument that there is a clamour for votes at 16 and 17 on electoral systems.
However, I find it equally unconvincing to challenge the right of people to vote at 16 and 17 on the basis that they are not yet well enough informed. I agree wholeheartedly with my noble friend Lord Desai that it is a dangerous path to tread to say that there should be a test of someone’s knowledge, ability and awareness before giving them the right to vote; it should be a universal right. We all acknowledge that there has to be a dividing line somewhere on the grounds of age—at least I assume we all acknowledge that—but excluding someone simply on the ground that they do not understand the issues is a weak argument. I have been frank with the House and explained that I do not fully understand the d’Hondt system and yet I shall be voting with enthusiasm when the referendum takes place. So, faced with two weak arguments, one on each side of the debate, what does an agnostic do?
Lord Falconer of Thoroton
My Lords, the effect of the amendment of my noble friend Lady Hayter would be that the voting age for the referendum would be lowered to 16. Two bases are put forward to support the amendment: first, that those who vote at between 16 and 18 in the referendum will be voting on the voting system that they will be using in a general election and therefore they should be allowed to contribute to choosing it; and, secondly and separately, that 16 is the right age for people to be able to vote in a general election and therefore they should be able to vote in the referendum. I do not regard the first basis as a strong argument. If we as a nation conclude that 18 is the right age to vote in a general election, 18 is also the right age to participate in the referendum.
In those circumstances, two issues are raised by the amendment: first, should the voting age be 18, which should be addressed as a matter of principle; and, secondly, if the House were to conclude that 18 is the right voting age, are there practical reasons why people should not be entitled to vote in the referendum because, for example, it is too late, too complicated or too confusing?
Let me address those two critical issues. First, should the voting age be 18 or 16? The Labour Party position is that there should be a free vote in relation to this. In my view—this is a personal view; I am not expressing the view of the Labour Party—the voting age should be 16 for the following four reasons. First, we allow people of 16 to do things that are only consistent with being an adult—joining the Army, marriage, paying taxes. In those circumstances it is quite difficult to see a basis on which not to allow them to vote. A possible basis could be that we think 16 year-olds are not mature enough to vote whereas 18 year-olds are. However, I do not think there is much evidence in relation to that. Secondly, as a matter of history, we have always taken a time to recognise that younger people than previously are capable of doing things. My noble friend Lady McDonagh made the point that in 1918, when we allowed women the vote for the first time, we said that they had to be 30 before they could vote. That was not a view about how mature or otherwise women were; it was society’s attitude to people. I suggest that the position now—just as it was in 1969, when Parliament rejected the view of the committee of the noble Lord, Lord Maclennan of Rogart, who is no longer in his place, that the age should be 20—is that society is much more trusting of people than it was before.
Lord McNally
That Christmas tree lifts the spirits and lights these gloomy days.
The amendment seeks to amend Clause 2 to enable 16 and 17 year-olds to participate in the referendum. As I have said before, the amendment is similar in intent to one tabled in the Commons, which was lost by 196 votes to 346. Then as now, the Government’s position on the franchise and in all other aspects relating to how the referendum is run is that we should follow the arrangements for parliamentary elections unless a particular circumstance is presented by the referendum that would require us to adopt a different approach. There is no requirement here to depart from the standard approach to the voting age of 18 that applies in those elections. The Government have no current plans to lower the voting age. I recognise that there are different views on whether the voting age in this country should be lowered to 16, but if we are to have a debate about reducing the voting age it needs to be had in relation to elections more generally. The passage of this Bill is not the right platform on which to discuss that issue.
There is a wider debate to be had about the voting age more generally and we need to consider the arguments for and against. I recommend that, when there is a Bill to bring the voting age down to 16, tonight’s Hansard should be required reading for anybody persuaded in that Bill. My noble friend Lord Newton, to whom I can almost say “Welcome home”, is right—this Bill is not the right forum for that debate. I urge the noble Baroness to withdraw her amendment.
Lord Falconer of Thoroton
If this is not the right Bill, could the Minister deal with the practical issues to which I referred, as that would influence me in relation to whether it was the right Bill? He has not dealt with any of the arguments; he has just said, “Wrong place, close it down”. But it would be of interest to the House to hear the practical objections to putting this measure in.
Lord McNally
On the practical objections, I could almost refer to the opening three or four lines of the speech of the noble Lord, Lord Soley, when he summed up my arguments perfectly. We are determined that this Bill will not be a Christmas tree. It is a simple Bill in its objectives of fair votes on fair boundaries. That is what we are aiming to achieve.
One interesting thing was that the noble Lord, Lord Rooker, raised the issue of using the national insurance database to register all 16 year-olds. Almost as an example of how this Government are thinking about the broader issues involved, we are running data-matching pilots next year and we will be looking at how we can use the wider government database to get more people on the register. As the Minister responsible for data protection, I would like to see some of the implications of that. That is why some of these things cannot be rushed.
Parliamentary Voting System and Constituencies Bill
Lord Falconer of Thoroton Excerpts(14 years, 5 months ago)
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Lord Maples
The average size of a constituency at that time was 68,000 voters, but 440 of them were more than 5 per cent away from that average and 240 were more than 10 per cent away. This is massively unfair, and it is demonstrated in the majorities that the two main parties have to get to win an election. If Labour got 32 per cent of the vote and the Conservatives 29 per cent, there would be a Labour majority of 10 seats in the House of Commons; if the Conservatives got 32 per cent of the vote and Labour got 29 per cent, there would be 280 Labour MPs and 231 Conservatives. The Conservatives have to get 40 per cent of the vote to get an overall majority, but all Labour has to get is 32 per cent, and it is all a direct result of the 1986 Act under which boundaries have been drawn. If the 2010 election result were reversed and the Conservatives had got 29 per cent and Labour 36 per cent, Labour would have got 363 seats, and the Conservatives 171, whereas we know what happened: we got 306 and Labour got 258. A hung Parliament, as opposed to an overall Labour majority of somewhere in the region of 80, is the discrepancy that these constituency sizes produce.
Let us look at some of the causes of that discrepancy. The biggest is Wales, and that is where the most eloquent special pleading has come from as, I suppose, one would expect from former Welsh MPs, but why should a Welsh seat be so much smaller than an English one? The Welsh quota is 55,000, but in England it is 70,000. Why should there be 40 seats in Wales when what it would get if it had the same quota as England is 32 seats? The Act under which the Boundary Commission draws boundaries does not require there to be 40 seats; it requires there to be 35, but for some reason Wales has 40. If there are parts of the United Kingdom that are not justified in being overrepresented, they are surely those with their own elected Assembly. The worst case in that respect is Scotland, although the discrepancy there was corrected in the Scotland Act, but there is still a discrepancy of two seats in Scotland, eight in Wales and a couple in Northern Ireland.
Lord Falconer of Thoroton
As the noble Lord knows, we support the idea of equalisation. He is blithely saying that all these discrepancies are caused by different sizes of constituencies. To what extent does he believe it is caused by different sizes of constituencies and to what extent does he believe it is caused by differential turnout in constituencies? I think the House would like to know where the split between the two comes.
Lord Maples
I prefer to make my own speech, and that is not a subject that I want to deal with. This Bill is about boundaries, not about increasing turnouts. A large part of the cause is the difference in the size of constituencies. It is not, I agree, the only cause. Differential turnout and the stacking up of votes in safe seats is certainly part of it, but the differential size of constituencies is part of it, and it is demonstrated by some of the figures I have just given.
Parliamentary Voting System and Constituencies Bill
Lord Falconer of Thoroton Excerpts(14 years, 6 months ago)
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Lord McNally
My Lords, personally, I would think nothing so unworthy of the Members of this House. This Bill deals with matters mainly to do with the House of Commons. When it comes here, this House will treat it with the respect due to such a Bill, but will give it the scrutiny that will help the Government in making it a good Bill to take to Royal Assent.
Lord Falconer of Thoroton
My Lords, it is such good news to hear about Mr Mark Harper doing well in the House of Commons. In relation to this Bill, regulations are being passed before the Bill has even had its Second Reading in this House. In addition, the referendum will take place on a day that all the evidence to the Select Committee on the Constitution in this House said would be a day on which the referendum would get swamped by the Scottish election general, the Welsh general election and the local elections. Will the Minister explain what the hurry is? Why can the referendum not take place within 12 months from May?
Lord McNally
First, I welcome the noble, right honourable, learned and everything else Lord back to the Front Bench. It is said that they never come back, but there he is. A lot of scaremongering and false arguments are being put forward. Various bodies are suddenly elevated in their opinion. The Electoral Commission has said that it is possible to successfully deliver these different polls on 5 May. I suggest that, instead of trying to imply that the process is somehow flawed, we should watch its steady progress where we will deliver a very thorough examination at this end. I am sure that we will have an excellent Second Reading debate and a good Committee stage, and the Bill will be all the better for the deliberations of the House of Lords.
Referendums: Constitution Committee Report
Lord Falconer of Thoroton Excerpts(14 years, 6 months ago)
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Lord Falconer of Thoroton
My Lords, I agree with what the noble Lord, Lord Brooke of Sutton Mandeville, said. We suffer a substantial loss in not having Lord Bingham of Cornhill to debate these issues. He was probably the greatest constitutional lawyer of his generation and he died unseemly early. He would have made a great contribution to these debates and I entirely agree with the noble Lord.
I join other Members of your Lordships’ House in congratulating the committee on its report. The only criticism that I have detected throughout is the fact that there were not sufficient foreign examples. I am glad to say that the noble Lords, Lord Anderson of Swansea and Lord Hannay, have now put that right with their encyclopaedic knowledge of foreign referendums, including those in Greece, Turkey, Cyprus and other countries in which I know that the House has a huge interest. I believe it to be a very good report. It deals with the matter forensically, sets out the evidence and comes to conclusions that it is hard to disagree with.
In this House, we tend to be self-congratulatory; we tell ourselves how good we are on many topics. Very often, we are not that good on every topic, but on constitutional affairs we are good. We have an important role to play and the Constitutional Committee has made a major contribution, over the years that I have been in the House, in informing that debate. This report on referendums is another in that line, and its effect is to make people ask, “Well, why is it wrong”? If it is not wrong, we should be agreeing with it and acting upon it.
I have the most profound sympathy for the gentleman called Mr Mark Harper, whoever he may be. He had the misfortune to sign the Government’s response. I know, from being a Minister, that from time to time you have to sign responses on behalf of the Government. Your problem is generally that you have committed yourself to a particular course of action that the committee’s report rightly identifies to be completely wrong and based on no principles at all. You have two methods by which you can deal with this. Either you say next to nothing—in which case the noble Lord, Lord McNally, would have got up to say it is the most insulting response he has ever seen, as it was so short—or you do what Mr Mark Harper does, which essentially is to fly in the face of the evidence. For example, he says that there is absolutely no evidence whatever that these referendums are done on an ad hoc basis for political purposes when, if you read the report, there are pages and pages of that. The noble Lord, Lord Pannick, set out the evidence, which was overwhelming. Poor Mr Mark Harper; I looked up his previous history and I am happy to tell your Lordships that he ran his own accountancy firm from 2002 to 2006. He cites his interests as being, inter alia: work and pensions, law and order, the USA and Israel. His three interests are: travel, walking the dog and going to the cinema—none of which equipped him for the terrible task with which he found himself.
I congratulate the noble Lord, Lord Goodlad, who has provided leadership for the committee, and the noble Baroness, Lady Jay, who I have absolutely no doubt will continue to provide such good leadership. Our role in this House on constitutional matters is, ultimately, not to initiate major constitutional change but to scrutinise, amend, improve and, in exceptional cases where we foresee disaster or believe that our constitutional values are at risk, to block. The noble and learned Lord, Lord Woolf, referred to the major constitutional changes that I was involved in. What this House did in relation to those was to slow them down dramatically, improve them and then pass them. That is a good model for the way that this House should deal with them.
We now face a major period of constitutional change, led in practice by the Liberal Democrats. The noble Lord, Lord McNally, who is much liked in this House, has a critical role in it. It is none the worse for the fact that it is led by the Liberal Democrats, and I pay tribute here to the support that they provided for the constitutional changes that came through Parliament after 1997—things such as the Human Rights Act, the Freedom of Information Act, the devolution Acts and the reforms to the Lord Chancellor. They supported those consistently throughout and we will, wherever we can, support them consistently.
It is worth pointing out, however, that those constitutional changes emerged from a long process of discussion, led by the noble Lord, Lord Maclennan, and the late Robin Cook, in which both parties were seeking to identify the right and the best changes. The constitutional changes that we are now faced with have not come out of a long process where we were trying to come to the right answer. They have come from five days of shambolic negotiations, in which the prize at the end of the five days was not the best constitutional changes but, in practice, ministerial cars for the Liberal Democrats.
On the changes that we are looking at, the first with which we will be dealing is an alternative vote system. On this side of the House, we supported that system and a referendum in our manifesto. Before the noble Lord, Lord McNally, gets up to point it out, we lost the election but no other party supported that particular proposal—and that proposal is the one which the public are now being asked to vote on in a referendum. That is why the timing of the committee chaired by the noble Lord, Lord Goodlad, as it was, is very apposite. On this side of the House, we agree with almost everything that the committee has said. Perhaps I might highlight some of the points.
Referendums, as the noble Lord, Lord Goodlad, candidly said in his speech, occur on an ad hoc basis for politically driven reasons. I adopt all of the reasons from the noble Lord, Lord Pannick, to destroy the unfortunate Mr Mark Harper’s rejection of that view. The fact that they are ad hoc and politically driven does not mean that they are wrong and I agree with the noble Lord, Lord Owen, in what he said on the utility that they have produced in our country. In Northern Ireland, referendums have also had a beneficial effect. I adopt what my noble friend Lord Wills said in evidence to the committee: that the fact that they are based on politically-driven motivations does not make them bad. They are now accepted as an occasional part of our constitutional furniture and much as the noble Lord, Lord Hannay, may rant away at the effect of referendums, they are here and here to stay. The right course in how to deal with them is exactly as the committee did: to seek to define the circumstances in which they should be used.
When things start, ad hockery is fine but, as time goes on, if no principles are involved then doubt creeps in and confidence in the political system is reduced. I agree with the committee’s approach that major constitutional change will sometimes, if it is not backed by referendums, lack legitimacy. If you use the referendum too much, on the other hand, its abuse and constant use will lead to losing confidence in it as well. In parenthesis, in one of his responses I understand Mr Mark Harper to be saying that it is the Government’s intention to introduce mayors in certain places and get the introduction of the mayor approved subsequently by a referendum. Is that right? Does the noble Lord, Lord McNally, think it a sensible use of the referendum power to introduce the change first, then have it approved by referendum?
We should be careful to set the bar high for the circumstances in which we use referendums. I gratefully adopt paragraph 118 of the report:
“Parliament should judge what issues will be the subject of referendums. In its first report, this Committee stated that it would ‘focus on issues of constitutional significance’ determined by whether an issue raises ‘an important question of principle about a principal part of the constitution’. We believe that this provides a useful test, first, of whether an issue is of fundamental constitutional significance, and second, of whether a referendum is therefore appropriate”.
I say that that is the correct approach. There are circumstances in which referendums are not appropriate. I completely agree with my noble friend Lord Liddle that a referendum was not appropriate either for the Nice treaty, which the Government then led by Tony Blair said would have a referendum, nor for the Lisbon treaty, which the Government led by Gordon Brown said would not. On neither occasion was a referendum appropriate, because they did not satisfy the paragraph 118 test.
On the question of fundamental change to your Lordships’ House, if the change were fundamental—in particular, if you changed the way in which you elect noble Lords—a referendum probably would be appropriate, because that would be a significant change to our constitution.
To allow referendums on a range of local issues, such as excessive council tax increases, would be a dangerous move. I agree with my noble friend Lord Foulkes of Cumnock that that in effect would close yet further the space for good local government, and I would be against the excessive use of referendums in local issues. I am strongly in favour, as are so many noble Lords, of the fact that there are many ways, and more should be developed, to engage the public with their politicians, but that should not include local referendums.
I shall conclude by referring to three particular issues on referendums. First, it must be right that a neutral body should formulate the question. Parliament should definitely approve it, but if we want to have faith in referendums, the question should be formulated by a neutral body such as the Electoral Commission. Why does Mr Mark Harper oppose it?
Secondly, on the timing of the referendum, paragraph 145 of the report makes the case that if the referendum is on the same day as a general election, that will mean that the referendum gets completely swamped. It says that referendums should never be held on the same day as a general election and that there should be a presumption against it being on the day of other elections. The reasoning given in the evidence is that the other elections—the Scottish and Welsh general elections, for example, which will take place on the day—swamp the issue. When there is an election on the same day, the referendum becomes a secondary issue that is inevitably the victim of those other issues. That was the evidence. Will the Minister tell us why Mr Mark Harper rejected that evidence?
Thirdly, the report is generally opposed to supermajorities or voter thresholds, though it says that there is a case for there being a supermajority or a voter threshold where you are dealing with a major constitutional issue. Does the Minister think there is any constitutional issue that is more major than how the first Chamber is elected?
I congratulate the noble Lord, Lord Goodlad, and his committee on an excellent report.
Supreme Court: Retirement Age
Lord Falconer of Thoroton Excerpts(14 years, 9 months ago)
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Lord McNally
My Lords, I first assure the noble Lord, Lord Pannick, that the Lord Chancellor and I share the view that reaching 70 is not the end of a contribution to public life. In fact, in this House most think that it is only beginning. The age limit of 70 was brought in by the reforms of my noble and learned friend Lord Mackay. The Lord Chancellor is examining it, and he is also consulting carefully with the judiciary.
Lord Falconer of Thoroton
My Lords, I declare an interest: I am only 58. Does the noble Lord, who is a great friend of the Supreme Court, agree that the problem is now urgent? There is a member of the Supreme Court—the noble and learned Lord, Lord Collins—who will be forced to retire after only 18 months in the job of Supreme Court Justice. If the matter is not looked at and dealt with quickly, it will be a great loss to law in this country.
Lord McNally
I hear what the noble and learned Lord says. As he knows, there are ongoing arguments for making maximum use of the undoubted talent in the Supreme Court—his point—and about what others rather inelegantly call “bed blockers”. How to bring forward and rejuvenate the Supreme Court must also be fed into this debate.
Queen's Speech
Lord Falconer of Thoroton Excerpts(14 years, 11 months ago)
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Lord Rennard
My Lords, I wish to address the measures announced in the gracious Speech that relate to fixed-term parliaments, the alternative vote referendum and the principle of moving to more equal-sized electorates in constituencies.
As someone who has worked both as a volunteer and a professional in the last 10 general election campaigns, I personally welcome the proposal for fixed-term parliaments in future. It is not just a matter of personal convenience to be able to plan your holidays and work around the known dates of elections nor a matter of assisting everyone involved in planning the campaigns, including the staff, the parties and the media, but an important democratic principle.
It has always seemed unfair that the leader of one political party can choose polling day according to their own party's advantage. Of course, they sometimes make mistakes, such as Jim Callaghan in 1978 or Gordon Brown in 2007. But, by and large, the power to choose polling day based principally on examination of opinion poll or local election data has in the past given an unfair and undemocratic advantage to the party in government. That is why opposition leaders have had good cause to complain. The noble Lord, Lord Kinnock, argued strongly for fixed-term parliaments in 1992. But Labour's addiction to power after 1997 meant that that was one of the many reforms that did not see the light of day in Labour’s 13 years in office, although it resurfaced in its recent manifesto.
Since 1999, we have seen the Scottish Parliament and the Welsh Assembly function well with fixed-term parliaments, no one party having an overall majority, different coalitions being formed and periods of minority government. The sky did not fall in in response to any of that. Many noble Lords will also be aware of how most local authorities function on a fixed-term cycle based on elections every four years. In these councils, even a vote of 100 per cent of the members does not lead to a new set of elections. Councillors simply have to respect the voters’ verdict and make it work over the four-year term.
Fixed-term parliaments work in many countries. In the United States, President Obama knows that he is elected for a four-year term to head the executive branch of the US Government. Nothing can alter that, short of impeachment. The noble Lord, Lord Elystan-Morgan, suggested that perhaps if a Prime Minister dies there should be a new general election, but in the United States if a President resigns or is assassinated, there is no new presidential election—the business of government continues.
There has of course been much debate today on the principle of how a general election might be triggered at an earlier point than the fixed term. My noble friend Lord Tyler pointed out that when introducing fixed-term parliaments for the Scottish Parliament and the Welsh Assembly, the previous Labour Government legislated to require a two-thirds vote for a new election to be triggered. To those who have said today that a Dissolution of Parliament should be triggered by a vote of 50 per cent plus one of the Members, I say that this would mean that we did not have a fixed-term parliament whenever one party, as is usually the case, had a majority. If a Government with a majority can vote for Dissolution and a general election then we will simply hand power back to the governing party to choose the time of the election. The 55 per cent rule is necessary—
Lord Falconer of Thoroton
My Lords, is it not the position that the coalition has more than 55 per cent of the MPs, and therefore it can trigger a general election whenever it likes?
Lord Rennard
Given the public commitments by both coalition parties, that clearly would not happen. The noble and learned Lord makes a good point, however. When we consider this fully and properly in due course and learn the lessons over this parliament, perhaps the 55 per cent measure will be seen as an insufficient trigger. Perhaps his Government acted sensibly and wisely in the Scotland Act in ensuring that in Scotland, as in Wales and in Northern Ireland, a two-thirds majority is required. For this parliament, though, 55 per cent provides stability.
Lord Rennard
My Lords, I beg to disagree on the basis that if you do not have a percentage like that, you simply do not have a fixed-term parliament. If it is possible for one party with 50 per cent plus one of the seats in the House of Commons to trigger an election, you allow that party, for its own interests, to choose the time of the election, rather than have the fixed term that works in so many other countries.
Lord Falconer of Thoroton
I support fixed-term parliaments but I completely fail to understand what is wrong with a provision that says there should be a fixed term for X years, subject to a case where the Government are defeated on an Opposition Motion of confidence.
Lord Rennard
My Lords, you see what is wrong with that when you look, for example, at the models of many other European countries, where there are fixed- term parliaments, multi-party coalitions, systems of proportional representation, et cetera. If a Government fall there should always be the provision that it may be possible for another Prime Minister or other parties to form a Government. It is not necessarily logical that if one Prime Minister and one Government fall, you must assume that there will be a new general election. If you have terms of four or five years you must—as in Scotland and Wales, as noble Lords opposite legislated for 12 or 13 years ago—have provision for an alternative Government to be provided. If that is not possible, I accept that you must go to a general election.
My time is almost up and half of it has been taken up by noble Lords in other places. We will return to the very important arguments about the alternative vote referendum and to other points that need to be made in due course.
Lord Falconer of Thoroton
My Lords, I congratulate the noble Lord, Lord Bichard, on his genuinely good maiden speech. He has very much to offer this House. He was the Permanent Secretary at the Department for Education and Employment from 1997 till 2001, and he practised what he preached. He achieved a lot by change. We have much to learn from him.
I also congratulate with real sincerity the noble Lord, Lord McNally, on his appointment to the Ministry of Justice. He is somebody of real warmth and ability who is extremely popular in this House, and we all genuinely wish him very well.
My noble friend Lady Jay of Paddington wished to speak today; the noble Lord, Lord McNally, should be grateful that she did not. She would have mentioned how loyally the noble Lord served her father and the Labour Party, then how loyally he served the Liberal Democrats and, now, how loyally he serves the noble Lord, Lord Strathclyde, the self-styled tubby toddler.
Lord McNally
She did give me a message—she said, “Jim must be spinning in his grave”.
Lord Falconer of Thoroton
The noble Earl, Lord Ferrers, in an excellent speech, mentioned the no confidence vote in 1979. The noble Lord, Lord McNally, will remember what Jim Callaghan said describing that event—“Turkeys voting for an early Christmas”. I assume that it is that memory that has led the noble Lord to argue for a fixed-term Parliament, so that if the turkeys with whom he now associates lose a vote of confidence, they will not have to leave government.
What a marvellous sight the coalition is! The language of Cameron and Clegg is the language of love. It reminds me painfully of those “Spitting Image” programmes in the 1980s. Do noble Lords remember the noble Lords, Lord Owen and Lord Steel, and the boy David nurtured in the arms of the noble Lord, Lord Owen? They had to choose a name for the leader and David Owen suggested that there should be one name from the Liberals—say, David—and one name from the SDP—say, Owen.
New politics—a coalition, and an opportunity to achieve through Parliament changes to the constitution which could be for the benefit of the whole country. There is a huge opportunity offered by this new politics, one which is in the process of being horribly lost. At the heart of the constitutional proposals are attempts to reduce the ability of Parliament to stand up to and restrain the Executive; proposals to prevent the Commons from forcing an election; proposals to make this House a creature of the Executive—something that it has not been since the late 1950s, when this House did not even bother to have votes, because a Tory Government down the road and all the Tories here did not think it worth while.
I think that a fixed-term Parliament is a good idea; it is a good idea to take away from the Prime Minister of the day the power to determine the date of the election. But depriving him of that power has to be consistent with the basic principle of our constitution—that the Government are selected by the House of Commons and survive only as long as they enjoy a majority in the House of Commons. For well over 110 years, whenever a vote of confidence has been lost in the House of Commons, the Government then go straight to the country. Why is that? It should not be us or them down there who choose who should be the next Government; it should be the public who choose.
Mr David Heath, the deputy leader of the House of Commons, suggested that there was an exception to that, when Mr Stanley Baldwin was defeated at the end of 1923 and Mr Ramsay MacDonald formed the first Labour Government. What happened in 1923 was that Mr Stanley Baldwin was defeated on the King’s Speech. The position should clearly be that if the Government fail to get the confidence of the House of Commons after an election, the right thing is not to ask the public to think again in a new election, but then and only then to choose a new Government in the Commons.
The twin aims of depriving the Prime Minister of the right to fix the election date while preserving the bedrock principle that if the Government lose the confidence of the House they should call an election can be achieved with a Bill that says that there should be a fixed-term parliament of X years subject to the PM having an obligation to advise Her Majesty to have a general election when his Government had obtained the confidence of the House of Commons but then been defeated on an Opposition vote of confidence. That would meet every aim that the coalition has. Why on earth has it proposed this 55 per cent? As my noble friend Lord Hunt said, a whole variety of different reasons have been suggested. But think what the consequences of that 55 per cent are. First, it means that this Government are not affected by the fixed-term Act because they have more than 55 per cent of the MPs. Secondly, well over half the years since 1945 have involved Governments with more than 55 per cent of the MPs, so it is likely that in years to come this provision will not apply to most Governments. Thirdly, what would happen if the coalition splits up? Fifty-three per cent is the number of non-Tory MPs in the Commons. If there was a vote of confidence—
The Earl of Onslow
If the party had more than 55 per cent of the MPs and the Prime Minister wished to call an early election after three and a half years, all the party has to do is to get 55 per cent in the Division and, lo and behold, it gets an election and the fixed-term Parliament is quashed.
Lord Falconer of Thoroton
The noble Earl has got it completely. That is exactly the point. The coalition Government can have an election whenever they want. They say now that it will be on 15 May 2015. Can noble Lords imagine a Prime Minister saying, in two years’ time, that circumstances have changed, and that of course it was right then to commit themselves to 15 May 2015 but the right thing to do now is for the country to see whether, in the current circumstances, it wants to go on with the current Government. It is a totally bogus piece of legislation as far as concerns the current Government.
I was about to talk about what happens when the coalition splits up. On the basis of the 55 per cent, if it splits up and is then defeated in a vote of confidence by the 53 per cent of non-Tories, there would not be a Dissolution. Until Mr David Heath spoke on Tuesday there would have been, as I describe it, a zombie Government. There would not be an Opposition who wanted to form a Government and the Conservative Government would not have the confidence of the Commons. What would then happen? I assume that there would have to be an election. If there has to be an election in those circumstances, why is there this 55 per cent in the first place? It is obviously a botched attempt by the coalition to stay in power even though it had lost the confidence of the House of Commons. I hope that it will admit that as soon as possible.
That sort of problem is something that this House would be incredibly good at fixing. However, we read in the newspapers of an intention to stuff this House with 100 coalition-supporting Peers. I am sure that it is not true and that the noble Baroness, Lady Neville-Jones, will confirm that, because then Parliament would lose the one part of the body that has stood up to the Executive over the past 10 or 11 years.
The last point I want to make is that there was a sinister reference to the Salisbury convention by the noble Lord, Lord Strathclyde. Members of this House will remember that the Salisbury convention has at its heart the proposition that if the electorate has endorsed something—for example the Labour Party's proposals in 1945—it would be wrong for this House to reject it. It cannot seriously be suggested that because fixed-term Parliaments were referred to in the Liberal Democrat manifesto—the Liberal Democrats who lost more seats than they had before—that that represents endorsement by the electorate. If that is the case, then the coalition has very severely lost its way.
The Minister of State, Home Office (Baroness Neville-Jones)
My Lords, this debate on Her Majesty’s gracious Speech has been extremely wide ranging and very stimulating. We do credit to ourselves in the quality and imagination that has been injected into a great deal of the interventions, and there have been 49 speakers. Before I do anything else, I join noble Lords in welcoming the noble Lord, Lord Bichard, to our House and congratulate him on his excellent speech.
It is very gratifying that the work of the Home Office, the Ministry of Justice and the Department for Communities and Local Government should attract such a long list of speakers, but it makes for a difficult task in winding up. We will undoubtedly return to all these topics in due course, which will give the Government an opportunity for fuller replies, so I hope that I may be forgiven if I do not tonight cover all the points that have been raised. I will endeavour to write on any substantive points that I miss.
Before I go to the substance, I want to take this opportunity to acknowledge the contribution not only of those who took part in today's discussion but of the Ministers in the previous Government who were involved in the affairs that we have discussed today, particularly the noble Lords, Lord West, Lord Hunt and Lord Bach. While in some areas of policy there will be changes of direction under this Government, in others it is clear that we shall be building on what our predecessors have done.
This Government have a strap line: freedom, fairness and responsibility. These themes run through the Government’s programme, and they have run through today’s debate with a strong focus on the citizen: the individual’s relationship with the state, the individual’s right to participate actively in the running of the society to which he belongs and the importance of people taking time and trouble to exercise those rights responsibly.
Before I turn to some of the more detailed points, I want to underline what my noble friend Lord McNally said when he opened this debate: this Government will be steadfast in their defence of civil liberties, and I say to the noble Lord, Lord Bach, that anybody who knows me knows that I am entirely comfortable sitting next door to my noble friend Lord McNally.
Protecting the public and safeguarding our liberties are not mutually exclusive. They are not a zero-sum game; the more of one, the less of the other. Indeed, one might ask: what is the point of security in a society if it is not free, if not to preserve the values that we believe in and stand for? We will not compromise our national security in the face of a serious and continuing threat. As the noble Lord, Lord Bach, rightly said, that is my particular responsibility. For me, the first duty of government is to protect a free society.
In this debate, the Home Office and the Ministry of Justice have been brigaded together. Hearing the remarks made by some noble Lords, I hope that they do not think that with this brigading, somehow the Home Office will not always act proportionately. I stress that it is very important that the Home Office, in carrying out the duties that are particular to it, does so always with proportion. We should not be solely in the business of protecting the state, since in the 21st century security, and national security, are about maintaining the prosperity and way of life of society as a whole. We come back to the theme that has run through our debate; the centrality of the citizen.
Before I go into more detail about the Home Office and the Government’s programme, I will address the questions raised by noble Lords about constitutional and electoral reform. I am in danger of wading into deep water here. It is clear that the prospect of change raises mixed emotions in this House, and a considerable degree of excitement. The noble and learned Lord, Lord Falconer, said that a great opportunity for reform was being missed. Perhaps I might ask what the previous Government were doing for the past 13 years. Their enthusiasm for electoral reform was reserved for very near the election.
I turn to the substance of the debate. The noble Lord, Lord Hunt, and many other noble Lords, asked about legislation on AV and the referendum. He inquired about the timetable for both. The referendum is a priority for this Government and we plan to hold the poll as soon as possible. The precise timing will depend on the passage of the Bill through the two Houses. More information on timing will come with the introduction of the Bill in another place. The question to be put will be submitted to the Electoral Commission for comment on its intelligibility, to ensure that we get a good question. The choice will be between the current system and AV. The noble Lord, Lord Hunt, also asked about threshold and turnout, and a number of other more detailed questions. I am afraid that I cannot give him more information at present.
A number of questions were also asked about electoral issues that largely affect the other place. I do not propose to go into detail on those. The noble Lord, Lord Grocott, and others, suggested that speed in redrawing electoral boundaries might come at the expense of consultation. I entirely agree that consultation is important. However, many people might consider that the present system has created a situation in which the boundaries are out of date before they are ever used, as in the case of the last election, and that we need to improve the speed at which these things are done. We do not accept the thesis that larger constituencies lead to less accountability—there is not going to be such a radical change—nor that more equal-sized constituencies are a bad idea. We will allow small variations to accommodate local conditions.
The noble Lord, Lord Hunt, and many other noble Lords also raised the issue of reform of your Lordships’ House. Indeed, I suppose that if there were a single issue on which we focused most, not surprisingly it was that. As the noble Lord noted, a committee is being set up but not, I think, on this occasion located in the long grass. Its composition is currently under consideration and the aim is that the committee should make recommendations by the end of the year.
My noble friend Lord McNally has already given some indications of the Government’s broad direction of march on some of the important issues. The committee will look at the detail of these issues and such matters as the choice of the electoral system, the proportion of Members to be elected and the transitional arrangements, including some of the ones that we have discussed, such as grandfathering. These will also be matters for the committee, as indeed will the issue raised by the right reverend Prelate the Bishop of Leicester concerning the future position of Bishops in our House.
We on these Benches are well aware of the strength of feeling in this House, including that we should have some say in our own fate. I share it. The noble Lords, Lord Rooker and Lord Armstrong, made characteristically to-the-point speeches about the issues involved, including the question of powers. Ensuring that views expressed in this House are heard properly and are thoroughly considered is important. The Leader of the House has already made clear the possibility of timely discussion at a formative stage and I am sure that we shall want to enable that to happen.
I think that on the Benches opposite there is great excitement—perhaps I may put it that way—about the possible effect of what they see as being new appointments to this House. At the moment, there are no announcements so far as I know, only rumours. If there are new creations, I doubt that they will be only on one side of the House; I am sure that they will be on the other side, too.
There has been a certain amount of questioning about Parliaments being fixed for a term of five years. When I travelled abroad—and I used to do a great deal of that—I found that most countries found it pretty odd that we did not have a fixed term. We are, in our present state, extremely unusual. Many in this country have long thought that it would be a good thing to move to fixed-term Parliaments. A Parliament of five years does not seem to be outside the British tradition, so I feel that it is a perfectly reasonable figure on which to fix.
The question of 55 per cent is a sensitive issue. There were a number of very thoughtful contributions from noble Lords about the 55 per cent threshold, as well as the expression of some anxiety and, indeed, criticism. However, there is no hidden agenda. Such provisions are normal in the context of fixed Parliaments. If you have a fixed Parliament system, you tend to have a provision of this kind, particularly in countries where there are coalitions. Germany, for example, is no exception. Therefore, if we are botching this idea—to use the phrase of the noble and learned Lord, Lord Falconer—I suspect that so are many other countries.
The first point that I want to emphasise is that the Government’s proposals on the 55 per cent vote for Dissolution do not affect the conventions relating to a confidence vote in the other place. A Government who lose a confidence Motion, even by a single vote, will have to resign. This is not about stopping Parliament dismissing a Government; it is about stopping a Government being able to dismiss Parliament. This is in the context of fixed terms.
Detailed consideration was also given to the matter in a debate in the other place on Tuesday night. It will receive further detailed scrutiny, first, when the Government publish a Motion in the other place stating the date of the next election and, secondly, when a Bill is introduced. The crucial thing is that there is nothing unusual about requiring a percentage of a Chamber to vote for Dissolution. As we know, in Scotland the figure is two-thirds and in other countries there are different percentages. The 55 per cent was the threshold that the Government thought right for the UK. I have no doubt that further contributions will be made by noble Lords on that subject.
Lord Falconer of Thoroton
The noble and learned Lord, Lord Mackay of Clashfern, said that it was implicit in the coalition’s proposal that the 55 per cent could be used by the Government for Dissolution only if there was a vote of no confidence prior to that. Is that correct?
Baroness Neville-Jones
I shall not venture into that territory because I do not think that I know the answer to that question. Clearly this is precisely the kind of issue that needs clarification. I entirely accept that.