Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 10th January 2011 Lords Chamber

[Lord Gilbert]

Oh yes it was. The centre of Dudley was a part of Worcestershire that was wholly surrounded by Staffordshire. I represented a constituency called Dudley, but which was actually and simultaneously Dudley and Stourbridge. The country got by quite well with that, except rather inconveniently at electioneering time when my wife and I swapped ends. In the mornings, I was in Dudley while she was in Stourbridge, and vice versa in the afternoons and evenings. However, the principle was exactly the same as that adumbrated by my noble friend. Surely to god this country is big enough to accept a few minor anomalies and have something like the Isle of Wight with a much bigger electorate, if it wants that. The idea that we should try to produce equivalence in numbers of constituents—with all the consequences that it produces—is quite absurd.

[Lord Falconer of Thoroton]

My Lords, this is a very important amendment and is the inevitable consequence of doing what the constitutional committees in both Houses of this Parliament have complained about.

The chairman of the Political and Constitutional Reform Select Committee in the Commons issued a report on 2 August which stated:

“Your legislative timetable has put me and my committee in an extremely difficult position. When the House agreed to establish the committee, it did so, in the words of the Deputy Leader of the House, ‘to ensure that the House is able to scrutinise the work of the Deputy Prime Minister’. In the case of these two bills”—

one of them is this Bill—

“you have denied us any adequate opportunity to”,

scrutinise. Our own Constitution Committee said:

“In general we regard it as a matter of principle that proposals for major constitutional reform should be subject to prior public consultation and pre-legislative scrutiny. We recognise that there may exceptionally be good reasons for departing from this principle, but the perils of doing so are well illustrated in the present Bill. The case for proceeding rapidly with one Part of this Bill is far stronger than for the other”.

It is possible that the effect of Part 1 of the Bill as drafted will have no effect on our constitution. There is no doubt that if Part 2 in its current form goes through, it will have a substantial effect on our constitution. I very strongly empathise with the very powerful speech by my noble friend Lord Boateng. What would we say to a country that said, “We are going to reduce the number of Members of Parliament in our country by 50 by using our majority to do so”? We would say, “It may well be sensible to reduce or increase the number of Members of Parliament in your country, but presumably there is some sort of independent process by which the number is to be assessed”.

The number of Members of Parliament in this country has fluctuated over a period of 60 or 70 years. That fluctuation has always been as a result of recommendations of the Boundary Commission. It is a very dangerous precedent for a majority in the House of Commons, and then a practical political majority in this House, to push forward a change in the number of Members of the House of Commons.

Even if there was not some independent justification for the reduction from 650 to 600, is there some intellectual justification for the reduction from 650 to 600? How many of your Lordships were present when the Leader of this House, the noble Lord, Lord Strathclyde, gave as the justification that it was a nice, round number? There is no intellectual justification and no independent justification of any sort whatsoever. The noble Lord, Lord Maclennan, whom I respect for the work he did in pioneering the way for constitutional change, says sometimes you just have to bite the bullet and go for it; it is leadership that matters. We have never done that in this country since 1944 in relation to how our democracy is based.

In 1944 a Speaker’s Conference set up the current method for determining constituencies and the number of Members of Parliament. That was given effect in an Act of 1949. There was a further Act in 1954 which gave effect to a consensus that there should not be too radical changes in the number of Members of Parliament. There were further changes in 1986 by a Government led by Mrs Thatcher—the noble Baroness, Lady Thatcher—which we, the Labour Party, broadly supported. Further changes were introduced in 1992 by a Government led by Mr John Major, which we broadly supported. There was one occasion in which jiggery-pokery was attempted by a Government and that was in 1969 by a Government led by Harold Wilson and the Labour Party. What happened was that this House rejected the Bill that sought to tamper with a boundary revision.

So do not tell us that Parliament has not proceeded by way of consensus; Parliament has behaved exceptionally well. I think that it is a disgrace that there is absolute silence from the other side, as without independent justification and without intellectual justification a Leader of this House treats this House and the parliamentary system with contempt by saying it is a nice, round number. I see Back-Benchers nodding that it is a perfectly respectable argument, but it is not; it is a disgraceful argument.

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[Lord Mawhinney]

Just for the record, I made no such implication as the noble and learned Lord has attributed to me. The point that I was seeking to make was that, whether the number of constituents is 65,000 or 90,000, it is perfectly possible for a Member of Parliament to handle that level of workload.

[Lord Falconer of Thoroton]

I apologise. I misunderstood what the noble Lord said. Obviously, further work would need to be done. I am happy to say that when I said further work was required, the noble Lord nodded—that is the point that I am making. First, what is the workload on a Member of Parliament and what is the right size for Parliament in relation to that consideration?

Secondly, what should be the basis of determining the constituencies? Of course, I think that it should be the electoral register, though there is an issue about population. There is a respectable view that says, where you have constituencies which have very significant populations which are much higher than the electoral register, those constituencies should, in some way, reflect that increase in the size of the population. For example, just as we have a geographical limit because we think it is too far for an MP to travel all around the constituency, is there a population limit above the electoral register which should have some effect on the size of constituencies?

Thirdly, the purpose of the deviation figure of 5 per cent from the electoral quota is to ensure that constituencies are broadly the same size. That would lead to a difference in the size of constituencies of about 7,000 if 76,000 is the average size of a constituency. The purpose is to get rid of what is described as the malproportion factor. Published work, in particular by Thrasher and Rallings, and by Lewis Baston, suggests that a deviation figure of 10 rather than 5 per cent would have the same effect in reducing the malproportion figure yet at the same time allow one, in determining constituencies, to keep communities together and not have the radical effect that the government proposals would have. What work have the Government done on whether 5 or 10 per cent would make a substantial difference to malproportion? Has any research been done on that? What effect on, for example, crossing county boundaries would a 10 per cent as opposed to a 5 per cent deviation have? The Government will not be able to answer all these questions; I am asking about the research that is being done on them.

Thirdly, what effect will this have on the Executive? Reducing the size of the House of Commons from 650 to 600 will increase the size of the Executive and reduce the number of Back-Benchers. Is it the intention of the Government to stick with that? If so, what effect will that have on Parliament as a place to hold the Executive to account?

Fourthly, what will be the effect of removing local boundary reviews that can be conducted in person? These reviews have had a 64 per cent effect on changing constituency boundaries. What work has been done to determine the effect on the reliability and acceptance of the boundaries that removal of the reviews will have?

If the Government will not answer those questions or have not done the work, the questions should be answered by somebody. This is not a great reform like the 1832 Act, as the Prime Minister said; it needs work doing on it. The effect of the amendment of my noble friend Lord Wills is that that work can be done. As my noble friend Lord Boateng said, our democracy is something that we rightly prize. The idea of rushing into this change, which has the support only of one side of the Houses of Parliament—let alone of either the country or the rest of the world—is wrong. It is not an acceptable justification to say that the Tory party agreed it with the Liberal Democrats between Friday and Tuesday after the latest general election. That looks like the worst sort of political gerrymandering. I ask the Government to reconsider and to give ground in relation to an independent look at the changes that they are making.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, first I thank the noble Lord, Lord Wills, for introducing a debate that has given rise to a considerable number of important contributions. I am not sure that I can address all of them, but I will do my best to pick up most of the salient points. It is clear that the debate on this amendment has touched on many issues that will inevitably come up as we go through the Bill. Future amendments have already been tabled that deal with some of them. I hope to explain the principles that underlie the proposals that we will debate further. I hope also to explain why the proposals are reasonable and why a committee of inquiry is unnecessary.

It is clear that the amendment would slow down the proposed reform of our political process and system. It is highly unlikely that the proposals in this amendment would be in place in time for the next election. There would be a three-year deadline to report, six months to draft measures giving effect to the recommendations, and then time to legislate. That would be only for the legislation that set new rules for conducting boundary reviews. The reviews themselves would then need to be carried out. Therefore, even if the rules were in place before the next election, the new boundaries could come into effect only at the election after that.

I do not want to suggest that the political purpose of this has been to kick the Government's proposals into touch, although my noble friend Lord Tyler referred to previous committees of inquiry that delayed and postponed for many years what were seen by many as desirable reforms, and there was a general groundswell of support for his point on this side of the House. I also want to knock on the head the idea that I have accused noble Lords opposite of filibustering. The only complaint I would make is about the time taken up by them complaining that I might accuse them of filibustering. I also take great exception to the suggestion that the proposal is partisan. I do not believe that the opposition case stacks up. The noble Baroness, Lady McDonagh, pointed out that the issue of the size of constituencies applied as much to Conservative constituencies as to Labour ones. One cannot on the one hand say that reform will have the same impact on Labour and Conservative constituencies and on the other say that what we are trying to do is partisan.

I will pick up a point made by the noble Lord, Lord Wills, about his freedom of information application. I apologise that the noble Lord has not yet received a reply to his request. I will seek to ensure that he receives one as soon as possible. However, my noble friend Lord McNally, who is sitting with me, has indicated that as far as we are aware no work has been done on any kind of partisan measurement of what a new size of 600 for the House of Commons would bring about. No modelling has been done on that basis. I also say at the outset that amid all the outrage that we have heard from the other side, one would think that it was a constitutional outrage to support the principle of one vote, one value. That is what is enshrined in this part of the Bill; one vote should have one value in all parts of the United Kingdom. I do not believe that to be a constitutional outrage, except in Orkney and Shetland and the Western Isles. I am happy to argue that, as the noble Lord's party did in the Scotland Act in the case of Orkney and Shetland.

My second point is that there would not only be a delay. If the 2015 election is to be fought in England on boundaries that took as their electoral registration base the year 2000—15 years previously—can anyone suggest that that is a constitutional principle that we should seek to uphold in this House? We wish to make progress with this so that we can have a boundary review that will deliver its report and be in effect by the 2015 election.

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[Lord Wallace of Tankerness]

The point that I was making about the exchange between the noble Lords, Lord Wills and Lord Foulkes, was that a point was made about the Senate having 100 members and the US House of Representatives having approximately 434. The noble Lord, Lord Foulkes, pointed out that there are also state legislatures in 50 states. We are not comparing like with like. I took the point made by the noble Lord, Lord Wills, that international comparisons take you only so far. The noble Lord, Lord Snape, made the point about the word “gerrymandering” coming from the United States and seemed to suggest, although I am sure he did not mean to, that the Boundary Commission would somehow be heavied by the Government of the day. In the United States, as the commentaries following the elections in November made clear, the new boundaries will be set by the state legislatures, not by an independent boundary commission. That is the fundamental difference. I hope that noble Lords will accept that.

To elaborate further, under our proposals, the 1 December 2009 register suggests that the electoral quota for the United Kingdom would be about 76,000. More than one-third of existing constituencies are already within 5 per cent either side of that illustrative quota, so the impact of our proposals will see constituencies of a size well within existing norms. However, if the House were to have, for example, 500 Members, that would push the size of the average UK seat above 90,000, and only three existing seats would be within 5 per cent of that quota. For that size to become commonplace would perhaps be too great a departure from what Members and the public are accustomed to. We therefore thought that 600 would seem to strike the right balance without reducing by too much and having regard to the fact that one-third of existing seats would be within 5 per cent either way of the existing norm. In addition, a slightly smaller House will mean that savings can be made without, in the Government's view, losing the capacity of individual Members or the Chamber as a whole to perform their functions.

Other points have been raised: for example, the fact that that should be linked to reform of your Lordships' House. I have no doubt that there will be ample opportunity to work out the implications for the reform of your Lordships' House when the draft Bill is brought forward. An important point was made first by the noble Lord, Lord Beecham, and picked up by several other noble Lords, including the noble and learned Lord, Lord Falconer of Thoroton. That is the relationship between the Executive and the elected House, the other place, if the number of MPs is reduced but not the number of Ministers.

The Government indicated in the other place that we agree that that is indeed an issue to be considered, but we do not believe that it is one that needs to be resolved in the context of the Bill. Reduction in the size of the House will not take effect until 2015, and we should therefore consider that issue in the light of decisions on, among other things, the size and composition of a reformed second Chamber. Historically, there has not been a consistent relationship between the size of the House and the number of Ministers within it. The number of Ministers in the Commons will be determined by what is needed to carry out the Government’s parliamentary business, and will not be affected by the change in the size of the Chamber. It is not clear that legislation is the answer. If the issue is the size of the Government’s payroll vote, there are ways to address that without legislation—for example, a reduction in the number of PPSs.

[Lord Falconer of Thoroton]

That was an absolutely riveting piece of information that the noble and learned Lord, Lord Wallace of Tankerness, dropped into the conversation—which is that, as I understand it, the size of this House will determine whether the Government are to reduce the number of Ministers. Have I misunderstood what the noble and learned Lord said? If I have, can he please explain it? Is it better if this House is bigger or smaller for the size of the Executive?

[Lord Wallace of Tankerness]

I indicated that an important factor would be the size of the reformed House, because if the overall number of Ministers is to be retained, it may be considered preferable to draw them from the elected House, with tested accountability mechanisms, rather than increasing the ministerial numbers elsewhere, including in this House.

The noble and learned Lord raised that issue, although the noble Lord, Lord Beecham, raised it first. It is an important issue. It is an issue which the Government have indicated needs to be addressed, but not in the Bill. There are other implications. For example, if Ministers were not to be in the other place, would they automatically be in this place? Would they have voting rights in this place? There are a whole host of issues which are perhaps more relevant to the debate about the constitution of the second Chamber in the context of a reduced House of Commons than to be dealt with in this debate.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 10th January 2011 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

54A: Clause 10, page 8, leave out lines 14 and 15 insert—
“(a) initially by a date to be specified by the Boundary Commission, once the Electoral Commission has certified that every local authority has taken all reasonable steps to ensure that the electoral register is as complete and accurate as possible; and(b) no later than every six years after that.””

[Lord Falconer of Thoroton]

My Lords, Amendment 54A stands in my name and in the names of my noble friends Lord Bach and Lady Thornton. It would leave out lines 14 and 15 of Clause 10 on page 8 of the Bill. Clause 10(3) states:

“For subsection (2)”—

of the Parliamentary Constituencies Act 1986—

“there is substituted … ‘A Boundary Commission shall submit reports under subsection (1) above periodically … before 1st October 2013, and … before 1st October of every fifth year after that’”.

We propose that the two dates should be deleted and the following inserted:

“initially by a date to be specified by the Boundary Commission, once the Electoral Commission has certified that every local authority has taken all reasonable steps to ensure that the electoral register is as complete and accurate as possible; and … no later than every six years after that”.

We propose the change because in practice—this is their timetable—it has taken Boundary Commissions six to seven years to complete the past five reviews of parliamentary constituencies. The Bill proposes that the first review be completed before 1 October 2013. If the Bill were passed tomorrow—which seems unlikely—the work would have to be completed in two years and nine months. That is less than half the time that ordinary reviews have taken so far. While everyone would want the process to be quicker than it has been before, the Bill proposes that one should do it in less than half the time that it has taken before, even when one has to redraw every single boundary in the country. I say that because the chair men and women of Boundary Commissions came before the Political and Constitutional Reform Committee of the House of Commons and said that it was probable that every constituency in the country would be affected by the proposals that were being made.

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[Lord Tyler]

I am very grateful to the noble and learned Lord for giving way. I am finding it difficult to follow him. I think that this is the most important part of his amendment: the trigger to start the process. I should say that I sit on an informal all-party advisory group which the Electoral Commission consults occasionally. I really do think that his amendment imposes on the Electoral Commission a responsibility that it is not ready to take and would not wish to take. How can he suggest that there are criteria by which the Electoral Commission could certify that every local authority has taken all reasonable steps to ensure that the electoral register is as complete and accurate as possible? I cannot see how it can do that. The work done by his Government previously may have helped, but it certainly has not enabled the Electoral Commission to take the very subjective view that he suggests.

[Lord Falconer of Thoroton]

I do not think that it is a subjective view. The commission would not be asked to guarantee that everyone, or 95 per cent of people, was on the electoral roll; it would be asked to check that the local authorities had taken all reasonable steps. I envisage that it would set out what it would expect a reasonable local authority to do—for example, house-to-house inquiries if there were very high levels of underregistration; or getting the figure up to 95 per cent in certain sorts of area. It would not be difficult to identify the criteria that had to be satisfied before the commission could be satisfied. There are so many other areas in which public bodies certify that reasonable steps had been taken. I do not regard it as beyond the wit of man for the commission to do the same in relation to local authorities.

[Lord Tyler]

The noble Lord’s amendment says that every local authority has taken all reasonable steps, so presumably no Boundary Commission operation could start or any review be initiated until every local authority had been able to satisfy the Electoral Commission that it had taken reasonable steps. That is an impossible target. I am sure that, from his ministerial experience, he would agree.

[Lord Falconer of Thoroton]

This new review could not start before every local authority had done that, but what would the excuses be? Why should one, two, three or four constituencies be prejudiced?

[Lord McAvoy]

I thank my noble and learned friend for giving way. Is he aware that the City of Glasgow Council recently conducted an exercise and, I am reliably informed, got an extra 30,000-odd voters on to the register? Does that not show that each council area can vary so much that it is not right or proper that we can have such variation in the country? Therefore, the measure of compulsion, if you like, on all local authorities to do what Glasgow has achieved should be in the Bill.

[Lord Falconer of Thoroton]

I am absolutely clear that the Electoral Commission would be perfectly capable of setting out what it would regard as the criteria that had to be satisfied. If you impose a provision like this, I have no doubt—and I have experience of this having been the Minister involved in ensuring good electoral practice—that that would have the effect, as far as the local authorities are concerned—they are, in practice, responsible for registration—of lifting all the votes up. I cannot envisage a local authority that would want to be one of two or three in the country that were incapable of meeting the standard. I cannot envisage that anybody in this House does not want the standard that I have described to be met. If the noble Lord, Lord Tyler, thinks I am imposing too high a standard, I am sure that he wants some standard imposed, and I would welcome his contribution about the margin of error that he would regard as acceptable as far as the Electoral Commission is concerned. I have detected no one in this House who has not supported the proposition that we should try to do all that we can to get the 3.5 million people—a broadly accepted figure—who are not on the electoral register on to it. The effect of my amendment is not that everybody has to get on; it is that the local authorities have to make a reasonable effort to get them on. If they do, and if the Electoral Commission certifies that they have done all that they can, then, and only then, can this process start.

My noble friend Lord Lipsey, who I am delighted to see in his place, made a speech before dinner in which he made the point that if we proceed with this very significant change in relation to the drawing of the constituency boundaries on the basis of the December 2010 register, which is what the Government are proposing, we are going to build in the bias. Who is the bias against? It is against young people, those in private rented accommodation and members of the black and minority ethnic groups. It might be said that that group would tend to favour Labour or even the Liberal Democrats, but that is not the point. You do not want to start with a great section of our population—the young people—being disenfranchised because they do not want to vote.

[Lord Phillips of Sudbury]

The sentiments that the noble and learned Lord expresses are wholly admirable. One wants to get every single person on to the register, but as I apprehend it, the problem is not a technical one; it is that there is a mass of disaffected younger people in our country who simply cannot be bothered to vote. They are not galvanised to take part in the democratic process. How does he propose to overcome that?

[Lord Falconer of Thoroton]

I know from my experience as the Minister responsible that if, for example, you do door-to-door inquiries, check who lives there, hand over a form to get on to the register, rather than sticking it in an envelope, and then go back and pick it up, you dramatically increase the number registered. My noble friend Lord McAvoy referred to the effort by the city of Glasgow. In my speech, I referred to the way that Manchester and Birmingham have 95 per cent registration because they are making the effort whereas London and Nottingham have 91 per cent, which is much lower. Picking up the approach of the noble Lord, Lord Phillips of Sudbury, work has been done to identify the practical steps that can be taken. That is why I am submitting that it is not unreasonable and does not impose an unreasonable burden on local authorities for the Electoral Commission to say that it expects good practice from everybody. Our democracy is crucial to the well-being of our society and only when all the local authorities have got to that standard, measured not by an absolute number but by doing the right thing, do we then move on to this particular approach in relation to registration. We then avoid the bias against young people, particularly in the BME communities and in the private rented sector.

[Lord Desai]

Does my noble and learned friend agree that, contrary to what the noble Lord, Lord Phillips, has said, whether people want to take part in voting is a secondary issue? The first issue is that we should never put any obstacles in the way of a person’s right to vote. A judgment, such as, “Oh, these guys are never going to vote so let us not register them”, would be much more damaging to democracy than allowing as many people as possible on the register and then leaving it to them to vote or not vote.

[Lord Falconer of Thoroton]

I certainly agree that we should not put any obstacles in their way, but I would go further perhaps than my noble friend Lord Desai. I do not know whether it will be the noble Lord, Lord McNally, or the noble and learned Lord, Lord Wallace of Tankerness, who replies but I hope that they will perhaps give us some examples—I know that there are examples—of where registration efforts have had an effect. It is those efforts that I am trying to build into the system.

I have to say to the noble Lord, Lord Phillips of Sudbury, that I was encouraged by him saying that he supports the sentiments of the amendment. If he supports the sentiments, perhaps I can persuade him that you can make a difference by what you do. If the Electoral Commission is set up to judge that everyone has done what they should, would not that, I ask rhetorically, have the effect of improving registration, which is what everyone in this House wants to achieve?

Our amendment addresses this problem. It sets a standard for the electoral register of the UK to be certified by the body in charge of such matters, the Electoral Commission, before the redrawing of the boundaries begins. The status of the electoral register matters. Correct counting of the numbers of those living in different parts of the country matters. The Christmas adjournment debate in another place on miscounting in certain London borough constituencies during the 2001 census shows the impact that can be wrought on local communities in terms of allocation of local services and resources.

We have heard throughout this debate that what this Government aim for is fair votes and fair representation. That has been the headline into which the noble Lords, Lord McNally and Lord Strathclyde, and the noble and learned Lord, Lord Wallace of Tankerness, have resorted when seeking to justify this Bill. Basically, this amendment proposes that you have a starting point that means you have got as many people as you reasonably can on the register. It reflects the fact that these boundary reviews take time and that you should have reasonable time between the reviews so that the up-to-date process can be given effect to.

I respectfully believe that those are sensible and realistic proposals.

[Lord Campbell-Savours]

I wonder whether my noble and learned friend will press the noble Lord, Lord Tyler, on something he said at the beginning of this debate. He referred to the informal party advisory group of which he is a member. Do we have an informal party advisory group for the Labour Party which meets with the Electoral Commission?

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[Lord Martin of Springburn]

My Lords, I can possibly help. I have said on the Floor of this House that it was the case when I was Speaker that the Electoral Commission had to report. There was a weakness in the Electoral Commission in that it would not allow former party agents in its membership. As a result, although there were former chief executives of local authorities, you never got someone like Jimmy Allison—God rest his soul—who used to be the wily agent of the Labour Party in Scotland. As a result, it was agreed that there would be an informal committee to give the type of advice that was needed when there were proposals for delivering leaflets and meeting the electorate. We all know that when you meet the electorate, sometimes you have to face an Alsatian dog, and when you get by the Alsatian, you get a Rottweiler. The chief executives did not really know about that, but Labour Party agents did.

[Lord Falconer of Thoroton]

I sat on the committee with the Speaker in which we discussed those matters, and I remember the setting up of the informal committee. Since then a Bill has been passed which allows former politicians to sit on it. Happily, your Lordships have answered all the questions so I have not been put in the embarrassing position of doing that which I am not allowed to do, which is to press the noble Lord, Lord Tyler, because he is supposed to be pressing me in the course of this debate.

I have set out the reasons for this amendment. It is a very important amendment because it requires a justification as to why it is two and a half years, why we should not wait for an up-to-date register, and why gaps of five years are suggested. Those are the questions that this amendment raises. I beg to move.

[Lord Foulkes of Cumnock]

My noble and learned friend is absolutely right that this is a very important amendment. It is double-barrelled in that it deals with two things. It deals with the redistribution to make sure that it is based on the real number as near as possible of people eligible to vote in a constituency, and it encourages people to register and to vote. It is important from the point of view of the redistribution of boundaries, but it also has a wider and more beneficial effect.

For the first aspect of this, I have an amendment, Amendment 89C, which I hope we will come to later this evening. I hesitate to say that it is better than my noble and learned friend’s amendment, but it is simpler because it just says that,

“for the purpose of this Act”,

the electorate will be taken as the number of people eligible to vote, not registered to vote. We can always find out the number of people who are eligible to vote through the census or whatever. I hope, in anticipation of that—which is why I am giving the Minister a bit of extra notice—he will look at his briefing. It is a simpler amendment and I hope it is one that the Government might accept.

However, my noble and learned friend’s amendment has the double advantage of getting people on to the register and, as my noble friend Lord Desai said, encouraging people to vote. There are lots of ways of doing that which we have discussed previously. One of those is compulsory voting. A number of colleagues were a bit doubtful and unsure about that, and with good reason. I say that because I have just been reading about the compulsory vote in Belgium, but because that country has a daft proportional representation system, which my noble friend Lord Grocott will particularly appreciate, it has not been able to form a Government for seven months, and the guy who was appointed to mediate between the various parties in order to try to get a government has just resigned. That is the sort of thing that happens when you have daft systems of proportional representation. Someone asked me who is running the Government in Belgium, and I said that I supposed it was the civil servants. They answered, “What’s different? Doesn’t that always happen?”. I hope that is not the case, but it is worrying that you can get to that position even with proportional representation and compulsory voting. You would think that that might improve the situation.

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[Lord Wallace of Tankerness]

I think that I have made it clear that I have not asked any of my colleagues not to speak. I am not quite sure that I could make it any clearer than that.

With regard to the timetable, the indication we have given is that we wish the changes in Part 2 to be in effect for the election due to take place in May 2015. One could say that that is dependent on the Fixed-term Parliaments Bill, but in any event, even under our present constitutional arrangements for the timing of elections, the latest date would be May 2015. It is the wish of the Government that constituency sizes should be of an equal size in time for that election. That is why we are asking the Boundary Commissions to bring forward their reports by October 2013. That would give time between the reports—one for each constituent nation of the United Kingdom—being published and an opportunity for the parties, the importance of which I think someone mentioned, to gear up, as it were, to what will be different boundaries.

With regard to the issue that I think was raised by the noble Lord, Lord Howarth, and the noble and learned Lord, Lord Falconer, about whether this is feasible, my noble friend Lord Phillips quoted from the Constitution Committee report where the Boundary Commission had indicated that it would be feasible. In giving evidence to the committee in another place, the secretary of the Boundary Commission for Wales said:

“I don’t think the timescales for Wales are going to be too challenging”.

The question was then directed to the secretary of the Boundary Commission for England, which is obviously much larger. He said:

“Taking a potential worst case scenario, based upon what is in the Bill in front of us, the initial view of myself and the Commission is that the timetable is achievable”.

The noble and learned Lord went on to ask why not do this in two and a half years every time, and why institute five-yearly reviews after that? The reason is that a five-yearly review would mean that there would be a boundary review in each Parliament. If he thinks about it, with a two and a half year or three-year review, you could have two reviews within one Parliament and a boundary review producing constituencies for an election that would not take place. I am sure he agrees that that would be farcical. That is the reason for the five-yearly review, and later we will debate other amendments regarding seven and eight year reviews. As was noted by the noble Lord, Lord McAvoy, the second part of the amendment has a six-yearly review. We believe that a review every five years would mean that in each Parliament, if the Fixed-term Parliaments Bill goes through, there is less likely to be disruption. The more frequent the reviews, the less the opportunity for wide divergence and therefore the less would be the likelihood of disruption.

[Lord Falconer of Thoroton]

I wish to intervene very briefly on the quotations used by the noble and learned Lord from the secretaries of the Boundary Commissions for England, Scotland, Wales and Northern Ireland, when they gave evidence to the Political and Constitutional Reform Committee of the other place. The note I have confirms that the secretary of the Boundary Commission for England said that the timetable was “achievable but tight” and that,

“extra resources would certainly be needed”.

I do not know what date it is assumed that the process would start and what extra resources would be provided.

[Lord Wallace of Tankerness]

I am not making any presumption about the date it will start because it would depend on Royal Assent, and therefore I am not going to speculate on when that might be. I know that the noble and learned Lord has a later amendment regarding resources, tabled for the avoidance of doubt. When we come to it, he will see that it is not necessary because as the Bill stands, the resources ought to be there to be drawn on for the purposes of this review. If he thinks about it, given all the comments made by noble Lords opposite about the Government wishing to get this piece of legislation through, they are hardly likely to wish then to frustrate it through lack of resources. That is perhaps self-evident. We will have a better opportunity to discuss the level of resources when we come to that particular amendment, but I would assure him that we do not anticipate that the issue of resources will be a barrier to the timetable being delivered.

Perhaps we may move on to the other barrel of the amendment, which would have the effect of delaying the boundary reviews until such time as,

“the Electoral Commission has certified that every local authority has taken all reasonable steps to ensure that the electoral register is as complete and accurate as possible”.

That is quite a steep requirement. My noble friend Lord Tyler questioned whether it would be appropriate for the Electoral Commission to make subjective judgments in cases that could have major consequences for a boundary review, and the noble Lord, Lord Campbell-Savours, raised some of the practical difficulties that again were picked up in an exchange with my noble friend Lord Tyler. I would simply observe that if the Electoral Commission decided that, in its judgment, one local authority in the whole of the United Kingdom had not done this, a boundary review could be put off indefinitely. It certainly would not be in time for the 2015 election, it might not be in time for the 2020 election, and it might not even be in time for the 2025 election. That is the possible logical consequence of the amendment put forward by the noble and learned Lord.

If there was a problem with a boundary review where the baseline for the review would be 1 December 2010, if we held elections in 2020 or 2025 where the boundaries for England were based on a baseline of data from the year 2000, that really does not address the very legitimate issues he has raised with regard to people who might be eligible to vote but might not be on the electoral roll.

--- Later in debate ---

[Lord Wallace of Tankerness]

The first point is, as I have indicated, a matter for the Electoral Commission. At least two noble Lords in this debate—the noble Lord, Lord Soley, and my noble friend Lord Tyler—have identified themselves as advisers to the Electoral Commission. These points will have been noted.

As I confirmed in a debate before the Christmas Recess, the base for this boundary review was this 1 December past and the next one will be 1 December 2015, if this Bill goes through in full. That is more likely to be able to take account of the information from these pilots, and, I hope, broaden that out. I understand that there are issues on the Benches opposite about individual registration. It is more likely that these will be taken into account quicker than were we to wait for the day when certification comes from the Electoral Commission, as is proposed in the noble and learned Lord’s amendment. I therefore invite the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

I am grateful for the trouble that the noble and learned Lord, Lord Wallace of Tankerness, has taken here. As he rightly says, there are two bits to this. The first part of my amendment questions the proposition that you could effectively complete a review of every constituency in this country by October 2013, which is what the Bill proposes, when there is agreement across the House that hitherto it has taken between six and seven years to complete such a review. I was looking for the reasons why that which hitherto has taken six to seven years can be dealt with between the date upon which this Bill gets Royal Assent—a date we know not but assume is some time in the next few months—and October 2013.

The evidence that the noble and learned Lord relied on was that the secretaries of the Boundary Commissions had said to the Political and Constitutional Committee that they think it can be done but—he might have disputed this—that the timetable would be tight. How will it be done? I do not know and it strikes me, from my knowledge of the way that such bodies operate, that to manage a much more complicated and difficult review than they have ever done before—it will touch every single constituency in the country—sounds unrealistic. I do not in any way criticise the noble and learned Lord for his answer but it did not really offer an explanation to me that provided any consistency on how this marvellous process could be done so much more quickly.

The second point is that we should really make efforts to ensure that people who are not registered are registered. The noble and learned Lord made the quite valid point that surely not every single local authority has to comply. Maybe we should have some rule or process that says “substantially all” local authorities should comply, but that was his only point. I am willing to be guided by him: he might produce some proposal if he thinks mine is too draconian. Let us give more room for manoeuvre. Every single person who has spoken in the debate has said that we should do something about under-registration. If our idea was too draconian, I would have expected the noble and learned Lord to have come forward with some idea about how we would achieve that which appears to be an aim shared by all Members of the Committee.

I thank the noble and learned Lord for taking the trouble to respond in the way that he did, but I have to say that his reply was disappointing. Of course I will not ask the Committee to divide at this time of night, but I will certainly come back on Report with an amendment to deal with the unrealistic timetable for the first review and to propose how one might deal with the issue of under-registration. I beg leave to withdraw the amendment.

Amendment 54A withdrawn.

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 20th December 2010 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

45ZA: Clause 8, page 6, line 10, at end insert—
“( ) the Electoral Commission have certified that the electoral register is being kept substantially up to date in terms of its accuracy and completeness”

[Lord Falconer of Thoroton]

My Lords, the amendment seeks to insert into Clause 8(1) a third condition before the Minister must make an order. There are currently two conditions in the Bill: first, that there has been a yes vote in the referendum; and, secondly, in Clause 8(1)(b) that,

“the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below) has been submitted to Her Majesty in Council under section 4 of that Act”.

Without going into detail, that means that the constituency boundaries have been substantially redrawn in accordance with Part 2 of the Bill.

Our proposal seeks to ensure that, before there is any change in the voting system and any substantial redrawing of the boundaries, proper work is done to ensure that the electoral register is up to date. If that work is not done, you will end up with boundaries being in the wrong place. The electoral quota for the boundary review will be based on the date on which the review begins, according to the new rule in paragraph 9(2) of the new Schedule 2 to the 1986 Act.

On page 11 of the Bill, new paragraph 9(2), which is a new rule introduced by the Bill, states:

“The ‘electorate’ of the United Kingdom, or of a part of the United Kingdom or a constituency, is the total number of persons whose names appear on the relevant version of a register of parliamentary electors in respect of addresses in the United Kingdom, or in that part or that constituency. For this purpose the relevant version of a register is the version that is required by virtue of subsection (1) of section 13 of the Representation of the People Act 1983 to be published no later than the review date, or would be so required but for … any power”.

I do not think I need to read sub-paragraph (b). New paragraph 9(5) states:

“The ‘review date’, in relation to a report under section 3(1) of this Act that a Boundary Commission is required (by section 3(2)) to submit before a particular date, is two years and ten months before that date”.

The effect of all those provisions is that the quota is to be calculated on the basis of the electoral register on the date when the review begins.

--- Later in debate ---

[Lord Campbell-Savours]

Does this not all inevitably mean that there will be some inner-city constituencies with huge populations in the very parts of the kingdom where most of the problems of social deprivation are concentrated?

[Lord Falconer of Thoroton]

That is inevitably the conclusion of the figures that I am talking about. If one goes back to what one would have thought would be the basic purpose of these changes—to increase trust in the electoral system for those who most depend on what politics does—to rush through a change in the boundaries that excludes them because there has not been a focus on who is on the register and who is not will tend to decrease trust. What is in it for the young person? What is in it for the person living in private rented accommodation? What is in it for the member of the black and minority ethnic group if the rushed changes do not include them?

If the Government are sincere, we commend this. We warned them to be wary of the experience in Northern Ireland where there were changes and not to rush individual voter registration. But the House and the country deserve to know the substance of their plans in relation to improving registration against the analysis that the Electoral Commission has made.

I very much hope that the noble and learned Lord will respond to the points that I have made. The coalition has made it a condition of the introduction of the AV system that there is a new boundary for almost all of the constituencies in the country. Surely we want those boundaries to reflect where the voters live.

[Lord Rooker]

In asking this question I may make myself look a right idiot, but thinking about what is happening, am I right in assuming that there will still be a census next year?

[Lord Rooker]

That means that there will be hundreds of thousands of census enumerators crawling around the country in March. Could they not check that the people in the dwellings that they go to are on the electoral register? It seems an ideal time for advance publicity before the referendum planned in May. We have a census taking place at some time around March. I know there is always an argument about swapping information, but this is an ideal opportunity, particularly in the areas where it is known that there is under-registration. There is nothing new in what my noble and learned friend says: the same areas were under-registered 30 years ago. In those special areas an effort could be made by the enumerators to cross-check their results at the end of the day with the electoral register.

[Lord Falconer of Thoroton]

I agree with my learned friend—sorry; my unlearned but profoundly friendly friend. Of course what I am saying is well known to everybody. However, he is wrong to say that the matter has remained static for 30 years. According to the ONS, the best estimate for non-registration among the eligible household population as at 15 October 2000 lies between 8 and 9 per cent. This compares with 7 to 9 per cent in 1991, so I think with respect that it is getting worse.

If this is meant to be the dawn of new politics, should the Government not commit themselves to doing all in their power to enable local registration officers to maximise the accuracy and completeness of the electoral register? No system is perfect and that is why my amendment does not propose any standard of perfection. It simply requires the Electoral Commission to certify that the electoral register has been kept substantially up to date.

[Lord Campbell-Savours]

When I talk to electoral registration officers, they are conscious of the fact that their budgets are not ring-fenced within local authorities. There is a danger that despite all the legislation that has been going through in recent years about individual registration and so on, they simply will not have the resources to ensure the high levels of registration that my noble friend is calling for.

[Lord Falconer of Thoroton]

I appreciate that. My noble friend Lord Campbell-Savours has not said it, but he will be aware that in the context of what are quite savage cuts in local authority expenditure, the enthusiasm for this sort of work in local authorities will go down yet further.

The coalition presents its proposals and the noble Lord, Lord McNally—sadly not in his place at the moment—when confronted with difficulty says that what he seeks to achieve is fairness. It must involve fairness for all groups, but most particularly those groups that are under-represented.

[Lord Rennard]

Does the noble and learned Lord agree with me that all previous Boundary Commission reviews—I think that there have been five general reviews since 1944, conducted under Labour and Conservative Governments—have been based on the electoral register as it is, rather than as we would wish it to be: even more accurate and even more complete? Would he perhaps acknowledge the contribution of his noble friend Lord Wills, who was instrumental in improving the accuracy of the electoral register under the previous Labour Government, ensuring for example the provision of the rolling register, so that hundreds of thousands more voters were added to the register in April this year in order to vote in the general election? The system is now rather better than it has been previously, so the register as of 1 December this year will be more accurate than it was previously, and it is a good register on which to base the next Boundary Commission review—certainly better than it would have been otherwise and no different or worse than the previous five Boundary Commission reviews.

[Lord Falconer of Thoroton]

I agree with the noble Lord when he says that it is better than the previous five boundary reviews. I agree with him that my noble friend Lord Wills made a major contribution to that and that we did a lot to deal with the issue. The evidence that I rely on is the March 2010 report of the Electoral Commission. Although the electoral register prepared in April indicated some improvements, the speech that I made earlier indicates the fundamental problems in relation to the register, which the Electoral Commission identified. I would be extremely surprised and concerned if the noble and learned Lord, Lord Wallace of Tankerness, departed from the position of the Electoral Commission in relation to that. Yes, we have made improvements, but there is still a long way to go, in particular in relation to the private rented sector, young people and black and minority ethnic groups. There is a very substantial group of people who are not on the electoral register but who could be if an effort was made.

[Lord Beecham]

Will my noble and learned friend comment on the likely impact of individual registration, which is shortly to come, on the total on the register?

--- Later in debate ---

[Lord Falconer of Thoroton]

In Northern Ireland, there is a problem with individual registration. Eventually it should improve the accuracy of the register, but it will take some time in relation to it, and household registration tends to involve more people being registered than does individual registration. We introduced individual registration because we did not like the idea of it being the head of the household who determined whether or not you got registered. My noble friend Lord Beecham is right in saying that because that measure might reduce the number of people registered, the consequence is that you need more effort on the part of the electoral registration officers to ensure that things keep up. Ultimately, you cannot—if the claim is fairness—say that it is fairness in relation to this one aspect but not to another.

If the position of the coalition is that it will not introduce AV, even if 99 per cent are in favour, until the Boundary Commission has reported, why will it not also accept our condition, which would have a fundamentally galvanising effect on electoral registration? It would mean that the Government of the day had the highest possible motivation to ensure that there was proper registration and that the sorts of problems to which the Electoral Commission has referred would be dealt with. This is how to make a difference in this regard.

I await the noble and learned Lord’s answer as to why, if at all, this proposal would not and should not be introduced. It is a wholly good thing, which would improve our democracy and would, most importantly, bring into our democracy people in black and minority ethnic groups, which are perhaps the groups that feel most alienated and excluded by it at the moment. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I support my noble and learned friend Lord Falconer on the basis that, if the boundaries are to be reviewed, the numbers should be as accurate as possible. First, however, I did not agree with what my own Government did in relation to changing the arrangements for registering for elections. I thought the head of the household system was far better than individual registration, and far more likely to ensure that more people were registered. I am worried about the effect that it will have when we move on to individual registration. I think that 17 or 18 year-olds are less likely to fill in forms, whereas the head of the household could ensure that all of the people of voting age were registered. I think it is a pity that we have moved in that direction.

However, the introduction of the rolling register, as the noble Lord, Lord Rennard, said, has significantly improved the situation. More and more people are registering now instead of having to wait for one particular date to register. That has been a great improvement.

My noble and learned friend Lord Falconer said that the numbers could be more accurate if an effort was made—I want to come to that point—to make sure that people are registered. He mentioned that two of the areas in which there was the lowest registration were Lambeth and Glasgow—he mentioned Glasgow in particular. I draw to the attention of the House what happened in Glasgow over the few months up to the end of November. Because the problems of under-registration were causing concern to MPs in Glasgow, they asked the leader of the council, Councillor Gordon Matheson, to carry out an exercise of going around the city to see if people were not registered who ought to be. During the course of just a few months, nearly 36,000 extra voters were registered. That is an astonishing number. If that was carried out in every constituency, in every city, and in every county, then we would get a much more accurate picture of those people who are not now registered and who ought to be.

I have raised this in the context of other areas, and I have been told that it is too late now to get registered if the timetable in this Bill is adhered to. I would be grateful if the Minister could confirm whether that is the case and whether we could ask each council to undertake the kind of exercise that was carried out in Glasgow.

If it is too late, then we need to consider alternatives, but if it is not, we should be getting MPs to encourage councils to carry out this kind of exercise. Before my noble friend Lord Rooker raised it, I, too, had written down the question of the census. That is another opportunity to gather a more accurate picture of those who are eligible to vote. It would be helpful if, in his reply, the Minister would indicate whether it is possible to get the census enumerators, as they go around, to ask an additional question, about registration —the names of the people in the household over 18 or those who will attain the age of 18 by a particular date. They could hand forms out when they are going around, or leaflets. That is my order of preference—to get them registered and take a note of it, then to give them a form and, failing that, to give them a leaflet. That would help.

I do not want to hold back the House unduly regarding this, but one of the things that has been noticed, and this has been said by some other colleagues in previous debates, is that it is funny seeing the two former Chancellors on the Benches opposite. It is a bit like the characters in the gallery on “The Muppets”, sitting there commenting on events.

--- Later in debate ---

[Lord Wallace of Tankerness]

According to the terms of the Bill, I think that the second boundary review will report on 1 October 2018. The noble and learned Lord indicated that there were difficulties involved in rushing registration and we have taken that on board. However, I cannot be absolutely certain about the extent to which that will be fully fed in for the report that comes out in 2018, with, I think I am right in saying, a review date of 1 December 2015. I hope that my arithmetic is correct. We hope to make substantial progress with individual registration ahead of that date.

I hope to reassure the Committee that this is an important issue and that that is how the Government are treating it. We have put in train measures to try to increase voter registration but we do not believe that that should be a precondition for the introduction of the alternative vote system. However, I believe that such an increase is absolutely right in its own terms and that we should make a concerted effort to improve voter registration, not least so that those who are entitled to vote get the opportunity to do so in future elections and, indeed, in a future referendum.

[Lord Falconer of Thoroton]

I express my gratitude to the noble and learned Lord, Lord Wallace of Tankerness, for his response to my amendment. It was gracious and detailed and dealt with the issue. Perhaps I may draw out a number of the points that he made. First, he said—in my view, rightly—that there is an obligation to address these issues. He said that he regarded it as right in its own terms that this issue is addressed, by which I take him to mean that, irrespective of the Bill, it is something that needs to be done. I have not noted his precise words on this but he also accepted that it is an important issue because it effectively disenfranchises the groups on which I think we agree—that is, those in the private rented sector, those in the BME community and young people. That is why it is important.

In effect, he confirmed that, as the Electoral Commission said, we are getting a registration level of 91 to 92 per cent, which means that about 8 to 9 per cent are not registered. Therefore, there is no dispute in relation to the position.

He made a point which had not occurred to me but which seems important—that a review two years and 10 months before the effective date means that the relevant date is 1 December 2010. That means that, if you want to make a difference to electoral registration, you need to move the review date a year forward at the very minimum to make it worth while.

The point that the noble and learned Lord did not deal with is that if, like me, he accepts the importance of dealing with these points, why is this not the obvious Bill in which to do it? If he is serious about dealing with these points, it is obvious that something else is required. The points he relied on to start with—for example, that the electoral registration officers have a duty and the Electoral Commission have an obligation to set a standard, the two particularly good points he relied on—are not only not improving the position but would appear from the comparison between the 1991 position of 7 to 8 per cent, and the 2001 position of 8 to 9 per cent. They are not to be leading to an improvement and therefore something else is required.

The coalition has taken the view that it would be wrong to introduce AV without first having equalised the constituencies. Why do the coalition regard the equalisation of the constituencies as more important than trying to get a substantial proportion of that 3.5 million who are not registered on the electoral register?

I am pleased to see the noble Lord, Lord McNally, in his place. I regard him as the public face of the coalition’s defence of this particular Bill. It is hard to imagine a more attractive and handsome public face. What he says in response to practically any complaint about this Bill, and what we are focusing on, is fairness and fair votes. Surely it is fair to the people who are not registered—3.5 million of them—that they get on to the electoral register?

I am grateful to the noble and learned Lord, Lord Wallace, for his full answer, which was a genuine response to what I have said. I will come back with an amendment like this on Report which, because of what the noble and learned Lord has said about the review date, to be meaningful has to give enough time for the coalition to make improvements in relation to it.

Remember that what I am asking for is not a complete and accurate register in every respect but simply a conclusion from the Electoral Commission that it is satisfied, in substance, that all efforts have been taken to get as many people as possible on to the electoral register.

I will not, therefore, press my amendment tonight but I will come back, taking into account the points that the noble and learned Lord made in his response.

Amendment 45ZA withdrawn.

--- Later in debate ---

[Lord Campbell-Savours]

I wish to speak to Clause 8 because I am worried that a certain portion of the House—essentially, the Cross-Benchers—is unaware of the fuller implications of what we are doing. I want to address my remarks primarily to them during the course of this debate. Clause 8 deals with actions that the Government must take following the result of the referendum, a referendum that is based on a simple majority. A simple majority vote is what the Government argue is their way of respecting the will of the people. I quote those words “respecting the will of the people” because they were the words that the noble Lord, Lord Strathclyde, used in his response to the amendment moved by my noble friend Lady Hayter of Kentish Town.

I go back to 13 per cent. That is hardly what I would call the will of the people. I would argue that that not being the will of the people, the Government should—the Bill says “must”—take certain actions in this clause. I would argue that they should not take those actions. I argue that that 13 per cent figure is particularly relevant—we are back, essentially, to a threshold debate—because last week I had conversations with various electoral registration officers in the north-west of England, and from the conclusions that I drew as a result of those debates it is quite obvious that when the referendum takes place in various parts of the country next year, there will be some very low turnouts indeed. I cite the case of Manchester City Council because its elections in 2007 broadly reflect the results coming from a stream of cities in the north-west of England. Liverpool, Burnley, Preston and all the cities around that area broadly had the same turnouts in their local election campaigns. I will refer to a return that was sent to me by Manchester City Council for the elections in 2007.

The relevance of this to the Cross-Benchers is this; I believe that most Cross-Benchers have had no experience whatever of turnouts in elections. The closest that most Cross-Benchers in this House will ever have been to an election is voting in one. They will never have canvassed, they will never have been members of political parties, and their knowledge of these matters will be very small indeed. I draw the Cross-Benchers’ attention to some turnout figures so that when they read the record of the debate, they will understand what happens in these inner city seats—seats that will form part of the national results. It takes only 50.1 per cent of the return in these seats actually to win the referendum.

I will not name the seats in Manchester, but I will go through some of the turnouts: 24 per cent, 21 per cent, 23 per cent, 22 per cent, 27 per cent, 16 per cent, 29 per cent, 28 per cent, 21 per cent, 27 per cent, 20 per cent, 29 per cent and 17 per cent. Let us remember that it needs only half of these turnouts in terms of cast votes to decide in favour. They will in effect approve the biggest constitutional question, in what I think were the words of Mr Clegg, for the last 180 years. I shall go on: 24 per cent, 29 per cent, 25 per cent, 21 per cent, 21 per cent, 21 per cent, making an average of 27 per cent. Those are very low turnouts indeed. I cannot see how it is possible to justify changing the law on such a major constitutional issue on the basis of low turnouts on this scale.

If I translate those turnouts into the votes that are actually required in Manchester City, a city of a third of a million people, on an average turnout of 27.7 per cent you need only 13.85 per cent of the electorate to approve the referendum. It means that the votes alone of 42,580 people in Manchester, a city of a third of a million people, would determine the result of whether people were in favour of the change in our electoral arrangements to AV. I do not believe that 42,000 out of a third of a million people in Manchester could in anyone’s language be described as the will of the people being exercised in the way suggested by the noble Lord, Lord Strathclyde. It is far too low a figure.

I have spoken in the debate on clause stand part because I hope that when the Cross-Benchers, who I maintain again have no experience whatever of being engaged in political activity, consider this statistic alone, it might give them pause and make them wonder whether it might now be appropriate to introduce a threshold. Despite what was said in the House of Commons, the reality is that this matter was hardly debated at the other end. There was no great debate because of the way House of Commons business is conducted these days. I hope that the statistics I have produced will get through to those whose judgment may be influenced.

[Lord Falconer of Thoroton]

My Lords, this clause is at the heart of Part 1. In my submission, there are two things that one needs to focus on. First, it is to be a compulsory referendum in the sense that the Minister is required to introduce the new AV system without any protection against a low turnout. The noble Lord, Lord Strathclyde, said that we would trust the view of the people in that respect, but the difficulty about that is that he did not address the argument put repeatedly and effectively that where you are dealing with significant constitutional change, most systems, including ours, build in protections against change that does not have adequate political and popular support.

This is a constitutional change that does not have the support of Parliament or, as my noble friend Lord Campbell-Savours said in the course of the debate, that of any political party. I therefore ask the noble Lord, Lord Strathclyde, to address the fact that in this way you could have constitutional change that is supported by 13 per cent of the population but is not supported by Parliament or by any political party. Most people would regard that kind of change as easier than normal legislative change, so will the noble Lord, Lord Strathclyde, address the argument by saying more than simply, “We trust the will of the people”? Some thought must have been given to that matter. He looks bewildered—as he often does in relation to the Bill—but if he can do no better than that, the House will draw its own conclusions. If his argument is no better than that, he should say so.

The second point about this provision is that the coalition has decided that before AV is introduced the constituencies should be equalised. This is presumably because it takes the view that it would be unfair to have a new electoral system if there is unfairness in the size of constituencies. Indeed, the noble Lord, Lord McNally, has made the point that they are trying to achieve fairness. However, it is obvious that, as the majority of constituencies in this country will be redrawn, it will be unfair to constituencies if they are redrawn on an inaccurate electoral register.

In answer to a Written Question from my noble friend Lord Bassam of Brighton, the Government have produced figures setting out the discrepancy between constituencies in who is on the electoral register and who is over 18. The noble Lord, Lord Taylor, is nodding sagely and I express our gratitude, on behalf of the nation, for his openness in providing that information. The information repays looking at. Take the north-east of England, for example. In the City of Durham 12,714 people over 18 are not on the register in a constituency in which about 67,000 people are registered; in Newcastle upon Tyne Central, 12,164 people are not registered in a constituency in which about 66,000 are registered. In Manchester Central, 11,820 people are not registered in a constituency in which 78,000 people are registered; in Bradford West, 15,885 people over 18 are not registered in a constituency of approximately 65,000; in Sheffield Central, 60,000 people are registered and approximately 24,000 are not registered; in Leeds North West, approximately 68,000 people are registered and 17,528 are not. Which is the greater unfairness: that the constituencies are not equalised or that these numbers of people are not registered? Interestingly, these people are in constituencies with significant numbers of people in the private rented sector or in BME communities.

Surely the right course for Clause 8 is to ensure that both conditions are met before AV is introduced. It would make a difference because it would provide a drive for electoral registration that has not previously occurred.

[Lord Campbell-Savours]

Is not the interesting factor governing the statistics introduced by my noble and learned friend that they are primarily Labour seats?

[Lord Falconer of Thoroton]

It had not occurred to me that they were Labour seats. I hope that the House will address these issues on the merits of the argument. However, it would not surprise me that they were Labour seats because these tend to be in areas where the poorest—the BME communities, the private rented sector and students—live. If I had thought about it, that would probably have been the answer, but so what if they are Labour seats?

[Lord McAvoy]

My noble and learned friend complimented the noble Lord, Lord Taylor of Holbeach, on being open and on making the figures available. He did not quite make them available; he produced them only after a Parliamentary Question was put down. He did not for the sake of being helpful to all concerned put down figures for the whole of the UK by country. My noble friend Lord Bassam of Brighton requested the figures for England; I have asked in a Written Question for the same figures for Scotland, so that I may make the same comparisons. The fact that the Government have not exactly rushed forward with the figures suggests not that they were hiding them but that they were not contributing to a wholly informed debate on people missing from the register.

[Lord Falconer of Thoroton]

I had not spotted that the figures did not include Scotland; we had the information for Wales. I presume that the noble Lord, Lord Taylor, was not asked about Scotland, which is why he produced figures only for England and Wales. He is in his place, but does not tell us. I do not know why he did not produce figures for Scotland. It would obviously be worth while to see them. I am sure, knowing the noble Lord as the Committee does, that he would be very willing to produce the Scottish figures. I am not sure whether the Front Bench are nodding or shaking their head. It would be good to see the Scottish figures. No doubt they will be produced in answer to my noble friend.

[Lord Campbell-Savours]

I am sorry to press my noble and learned friend. The relevance of the figures being for Labour seats is that many people believe that it is why the Government are relatively indifferent to the problem.

[Lord Falconer of Thoroton]

I do not know why the Government are behaving in this way. It does not matter to me whether they are Labour or Tory seats. The noble and learned Lord, Lord Wallace of Tankerness, was absolutely clear—I accept his sincerity in this respect—that he was indifferent to the political hue of the seats and that this was the matter that needed to be dealt with. This is the way to deal with it. That is why the answers that have been given are so surprising. I hope that, if the noble Lord, Lord Strathclyde, is answering, which I deduce is the case because he floated to his feet before I had an opportunity to make my speech, he will deal with that.

[Lord Foulkes of Cumnock]

I am deeply grateful to the Government Chief Whip for providing this extra time for us to debate Clause 8. I am glad to see that the noble Lord, Lord Deben—the artist previously known as John Selwyn Gummer—is here, even though he has moved conveniently to another part of the Chamber. He was concerned that some of us—although I have been here for five years now and have become sort of institutionalised in this place; the noble Lord joined us relatively recently—had imported habits from the other place. I shall try to explain to him and others why some of us here who were in the other place—in my case, it was for 26 years; a number of other Members were there even longer—are deeply concerned about what is happening. This clause is the fulcrum, as someone said earlier, of that.

Perhaps I can explain it better another way. I go around now to different countries as a member of the board of the Westminster Foundation for Democracy. We talk to it about the Westminster system, our system of democracy and control, and the way in which we have checks and balances and parliamentary control of the Executive. The noble Baroness, Lady D’Souza—I call her my noble friend—was on the board with me for a number of years, and prior to that, and played an excellent role. She will remember all our discussions.

If the Bill gets bulldozed through, can we still go around to these countries and say that we are the greatest democracy in the world, the epitome of democracy, and that this Westminster system is the one to be held up for others to follow? We saw the Bill of 300 pages hugely amended in the House of Commons—I do not think that it was 300 pages when it started—with lots of amendments put down, lots of clauses never properly scrutinised, and great faith put in the drafters, the civil servants. After five years working with civil servants, I am always very cautious about putting total faith in their drafting, but no doubt Ministers think otherwise.

The noble Lord, Lord McNally, has put down dozens of amendments in this House which are going to have to go back; huge changes have taken place. The Bill was guillotined in the Commons. They did not consider it in every detail. They did not think: is this right, what are the implications, are there any unintended consequences to this, are there any implications for anything else that we are doing? They did not consider whether there were any implications for fixed-term Parliaments and reform of the House of Lords, as I said in an earlier debate. They did not consider that. Now there is the suggestion that we are not going to be able to consider it properly here. If that is the case, it will have gone through two Houses of Parliament without proper, detailed consideration.

Take other countries, such as the United States of America. It is not perfect in any way, but it has two democratically elected chambers—the House of Representatives and the Senate—the President taking part in terms of legislation, while the Supreme Court provides an opportunity to consider whether there is anything that infringes the constitution of the United States. We do not have those checks and balances here; we are rushing the Bill through.

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[Lord Strathclyde]

I am afraid that I lost a long time ago where this 13 per cent figure came from. It might have come from the noble and learned Lord at some stage.

[Lord Falconer of Thoroton]

It came from my noble friend Lady Hayter, who is sadly not in her place, who proposed a 25 per cent threshold, which with extreme enthusiasm the noble Lord, Lord Strathclyde, rejected. When asked whether he was therefore happy that 13 per cent could lead to the change, he said, “Yes”. That is where it came from.

[Lord Strathclyde]

Are we not just building one hypothetical proposition onto another?

[Lord Falconer of Thoroton]

Thresholds deal only with a situation where the vote is that low. If it is higher than that, you never rely on the threshold.

[Lord Campbell-Savours]

The noble Lord says this is hypothetical. I have read out to the House a whole series of statistics from Manchester City Council showing that it is unlikely that it will be more than 13 per cent, based on the historic record of the elections in 2007. How can he call it hypothetical? That is what is going to happen.

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[Lord Campbell-Savours]

The Member for Christchurch, in the House of Commons, who was supported by Eleanor Laing, Greg Knight, James Clappison and Robert Syms. He stated:

“I beg to move amendment 62, in clause 7, page 5, leave out lines 9 to 11 and insert ‘but no preference beyond the second may be indicated’.—[Official Report, Commons, 19 /10/10; col. 837.]

He went through the use of a numbered system. I hope that the noble Lord in reply can simply clarify the position as to whether the language that I have deployed in this amendment, if it were enshrined in the Bill, would be acceptable. I beg to move.

[Lord Falconer of Thoroton]

What the group does is bring into the Bill both the federal Australian system, which is that you have to use all your preferences, and it also brings in the SV system, which is the one used in London. It goes back to the question as to what is the best AV system to use. The Government have made a choice as to what they think is the best AV system, which is one where you have the right to use a number of preferences, but you do not have to use them all. The second option is the one used in the federal system in Australia where you have to use them all and the third option is the one used in London which is where you identify the top two candidates from first preferences and then you divide all the second preferences from the other candidates between those two candidates. As I read the group—although the noble Lord, Lord Campbell-Savours, is shaking his head—it seeks to put in those two systems.

[Lord Campbell-Savours]

On the ballot paper, instead of putting two crosses, as you do under the London system at the moment, you would put one and two. That is the only difference. But at least it looks like the alternative vote for those who are obsessed on the other side of the House with that system.

[Lord Falconer of Thoroton]

Does the drafting work? Is it appropriate? Why is it not in there? These are the questions for the Government. It might not necessarily be in the form or in the shape that the noble Lord, Lord Campbell-Savours, put it, but as an alternative that the Government can select, after a proper consultation. Ultimately, one way of dealing with this issue would be for there to be a simple referendum on replacing first past the post with AV. Assuming that there was a yes vote—ignore the complications that we talked about earlier on—choosing which of the three systems was best could be done by the Government. There could still be compulsion in introducing AV, but there could be a proper debate with the public and in Parliament as to which is the best system, rather than the way it is done at the moment, which is that the Government have selected a particular system of AV, about which there has been no consultation and no explanation to the public. There are two questions. First, is the drafting right? Secondly, why not incorporate in the Bill the three options and allow Parliament to decide after a public consultation which is the best?

[Lord Wallace of Tankerness]

My Lords, I appreciate the fact that, in introducing the amendment, the noble Lord, Lord Campbell-Savours, said that he did not wish to re-rehearse the issues on the supplementary vote, which we have already been through. Was it on day three of Committee? He gave us the Hansard references. Indeed, I do not want to rehearse again the reasons why the Government do not support the supplementary vote for the purposes of the Bill that were outlined by my noble friend Lord Strathclyde. I do not think that the House would welcome being detained at present.

We believe that the noble Lord’s amendments would limit voters’ choice in expressing preferences for the candidates who would be standing for election, as they would be able to express a preference for only two candidates. Our preference, if I may put it that way, is that there should be more optional preferences that can be exercised by voters without any compulsion to vote for each candidate.

There is clearly a difference of view about the type of system that should be used. I note that the noble Lord, Lord Campbell-Savours, said that it was not the classic supplementary vote but perhaps the supplementary vote with cosmetic—

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[Lord Falconer of Thoroton]

We have a lot of choices for the Government here in what they can do. The noble Lord, Lord Lipsey, rightly draws our attention to new Section 37A in Clause 9(1), which says:

“A voter votes by marking the ballot paper with … the number 1 opposite the name of the candidate who is the voter’s first preference”,

and continues,

“if the voter wishes, the number 2 opposite the name of the candidate who is the voter’s second preference, and so on”.

I understand that the amendment in the name of the noble Lord, Lord Lipsey, is designed to deal with the situation in which there is only one X on the ballot paper. There is no X, 2, 3 or 4, nor is there X against more than one name. Under the amendment, it would not be possible to count that as a vote in favour or a first preference for the person against whom the X is granted. You would need to be an idiot not to believe that the X against one name and one name only is the first preference.

The noble Lord, Lord Rooker, who is an expert in all matters, says that it is perfectly obvious that the returning officer would treat that as voting for your first preference. Well, that would not be consistent with Clause 9(1); I do not have the noble Lord’s experience to know how returning officers might deal with it, but I suspect that some would deal with it in some way and some would deal with it in another way. It seems right that if you put an X against only one name, as your intention is so clear the right course for the Bill is that it should reflect that course. I do not think that the drafting of the noble Lord, Lord Lipsey, quite achieves what he wants because it says:

“Where a voter marks a ballot with a cross against the name of a candidate, that cross shall count as if the voter had placed the number 1 opposite the name of that candidate”.

That does not deal with the situation in which he has X against more than one name or with the situation in which he has put X, 2, 3, 4 or 5, but this is Committee and the intention of the noble Lord, Lord Lipsey, was absolutely clear. It was understood by the noble Lord, Lord Norton of Louth, by the noble Lord, Lord Hamilton of Epsom, by me and by everyone else in a particular way. I do not accept the actual drafting but I strongly support the intention behind the amendment. I apologise to the noble Lord, Lord Campbell-Savours.

[Lord Campbell-Savours]

Does my noble and learned friend not recognise that it completely undermines the intention behind the introduction of the AV system?

[Lord Falconer of Thoroton]

With respect to the noble Lord, Lord Campbell-Savours—and I respect him greatly on this matter—he overstated the effect of this and I also think that if in 2015 there is a system of alternative votes, some people who have been voting for a very long time might well think that the thing to do is to put an X against their favoured candidate. That should be treated as their first—

[Lord Rooker]

Look, I can guarantee that somewhere in the current election rules for first past the post, the instructions are that a voter places an X against the name. That is the reverse of this proposal. Yet, if voters put a 1 or a tick which is clearly indicated and is not applied to more than one name, that vote will carry for that person. The cross would count in extreme circumstances and that does not need to be put in the Bill. Doing that would send all the wrong signals to the voters when we are moving away from first past the post.

[Lord Falconer of Thoroton]

There now appears to be agreement that we all want an X against one name only to count as the first preference. The only issue appears to be whether or not one puts that in the Bill or in guidance. If one is changing the system and saying that the way you vote is by marking a 1, I should have thought that the sensible way to do that was by making it clear in the Bill. I support the noble Lord, Lord Norton, the noble Lord, Lord Hamilton, and, above all, the noble Lord, Lord Lipsey. I hope, although I accept that redrafting is required, that the noble and learned Lord, Lord Wallace of Tankerness, who has proved to be a gem, if I may say so, can see that.

[Lord Wallace of Tankerness]

In response to the amendment, the noble Lord, Lord Lipsey, has indicated that I might send him home happy. I hope that in the spirit of the remarks I am about to make he will still go to his Christmas retreat a happy man. As the noble and learned Lord, Lord Falconer, said, the amendment as drafted would not necessarily meet the point, but I hope that I can give the noble Lord, Lord Lipsey, and other noble Lords who have supported him, some clear reassurance.

The amendment is unnecessary because in Schedule 10 to the Bill, on page 294—which I hope we will get to one day—it is stated at paragraph 6(2C) that under rule 47:

“A ballot paper on which the voter makes any mark which … is clearly intended to indicate a particular preference for a particular candidate, but … is not a number (or is a number written otherwise than as an arabic numeral), shall be treated in the same way as if the appropriate number (written as an arabic numeral) had been marked instead”.

I hope that that addresses the issue. If there is one X, it will be very clear.

The important point is that the returning officer has discretion to make a judgment as to whether a clear intention has been made. That is why two Xs would not demonstrate a clear intention. I believe that one X would demonstrate a clear intention and that is provided for in the rules.

[Lord Wallace of Tankerness]

It is a matter for the returning officers to determine ultimately whether they believe an intention has been indicated.

[Lord Falconer of Thoroton]

I thought that the general agreement around the House was that if there is an X against only one name, we want the returning officer to say yes. That is a vote for a first preference. If you are saying that X is okay, but you are leaving it to the returning officer, that seems to be inconsistent. Why not put it in the Bill?

[Lord Wallace of Tankerness]

There may have been a misunderstanding. I wanted to make a particular point to the noble Lord, Lord McAvoy, who said that an X had been put through a name, rather than against it. There was a suggestion that in such cases, far from wanting a candidate, the voter did not want them. Those are circumstances where it would be invidious to suggest what would happen. Certainly when an X is marked against a name, it is clear from the provision in the Bill that the vote would be valid.

The noble Lord, Lord Campbell-Savours, is concerned —and I understand his concern—that this might lead to undermining the system. I think it was the noble and learned Lord, Lord Falconer, who indicated that if there was a yes vote in the referendum, in the run-up to a general election in 2015 there would be advertising making the position clear. There were indications that that actually happened in the Scottish elections where a single transferrable vote requiring numbered preferences was used.

The night is drawing on but perhaps I may relate one small anecdote. I stood in the first ever European election in the south of Scotland and I have the dubious distinction of being the first person ever to lose their deposit in a European election. I have no doubt that my noble friend Lord Alderdice will recall that the 1979 European elections in Northern Ireland were carried out on the basis of the single transferable vote, whereas in the rest of the United Kingdom they were carried out on the basis of first past the post. A corner of Galloway in the south of Scotland received Ulster TV, on which the advertising encouraged people to use their vote by marking 1, 2 and 3. In several polling stations in that part of Galloway a number of ballot papers were marked with a 1, 2 and 3, although the election was on the basis of first past the post. However, there was agreement that the number 1 on a ballot paper would be accepted as a valid vote.

Let us not underestimate the voters. There will be ample advertising to indicate that the nature of the election will be a preferential vote system. I do not believe that that will undermine the election or that it will give rise to the concerns raised by the noble Lord, Lord Campbell-Savours.

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[Lord Foulkes of Cumnock]

Absolutely. That is why I do not support this system. The reason I support the amendment is because it makes the alternative vote system look so ridiculous that we come back to first past the post.

[Lord Falconer of Thoroton]

My Lords, one can only think that this is like Heathrow at the moment. First we are told by the Government Chief Whip that we are going to go on till taxis, then we are told that we are going to do the next amendment—and then the Leader of the House says that we are going to go on to the end of this particular clause. So information is short. I look across at the Benches opposite and am glad to see that Ministers are using the seating to try to get a bit of a snooze in while this debate is going on. I imagine that quite shortly blankets will be produced for people across the Benches.

This is quite an important amendment. The need for it comes from the fact that, as a result of it being a compulsory referendum, you need to resolve issues about how the alternative vote system works. My noble friend Lord Rooker raises the question that your third, fourth and fifth preferences may not be treated with the same enthusiasm as your first and second preferences and he deals to some extent—although he eschews this in what he says—with the problem that your third, fourth and fifth preference may include unacceptable extremist parties. We do not want their second preferences to determine the vote in the election. We have to address this issue if there is going to be a referendum. We have to address it on the basis that, whether or not you like AV, if the AV referendum wins, how we deal with the amendment proposed by my noble friend Lord Rooker will determine how we deal with second, third and fourth preferences.

I can see the intellectual force of the position taken by the great intellectual, my noble friend Lord Rooker, but it seems to me to lead to the following problems. First, it says,

“reallocated … by the proportion of its preference (that is to say if the candidate was ranked 3 then one third of a vote, if ranked 4 then one quarter of a vote and so on)”.

So if there are 12 candidates, as there are in by-elections from time to time, it could go down to as low as one-twelfth of a vote. That is complicated and it leads to the proposition that somebody could win an election by one-twelfth of a vote, because you end up with one-twelfth of a vote being given. If number one and number two are equal and the twelfth candidate’s preferences are given and it is a twelfth for one and none for the other, you win by one-twelfth of a vote. That strikes me as an absurd system of a very high degree of complexity. The noble Lord, Lord Rooker, has indentified a real problem in relation to AV which has to be addressed in the Bill, because it is a compulsory referendum. We can draw our own conclusions as to whether AV is the right system or not, but this does have to be addressed. While I recognise the problems that the noble Lord, Lord Rooker, points out, my own view is that the right course is to go with something that is clear, simple and practical, rather than a system that—

[Lord Campbell-Savours]

My noble and learned friend says that the system is complicated. How would it be complicated with electronic voting? There would be no manual intervention at all. It would all be sorted out by the computer run.

Lord Falconer of Thoroton: I do not think that the count would necessarily be complicated; it is the explanation of “If you give me your third preferences, I will get one third of a vote”. In the course of the counting, fractions of votes will be counted against individual candidates; that strikes me as complicated, lacking in clarity and implausible as far as the electorate are concerned. To be told that I have got two-thirds of a vote more than you seems to me to be an unconvincing electoral system. I do not know of any electoral system in the world where you can win by less than one vote, although maybe there are some. I suspect the reason why there are no systems where you can win by less than one vote—

[Lord Campbell-Savours]

There is one.

[Lord Falconer of Thoroton]

The noble Lord, Lord Campbell-Savours, from a sedentary position, is contemplating whether there is one.

[Lord Hamilton of Epsom]

One of the valuable lessons that we learnt from the previous Government was that new computer systems cost fabulous sums of money and never seem to work properly.

[Lord Falconer of Thoroton]

I do not think that we needed the previous Government to tell us that. Nor do I think that all computer systems did not work. I do not know where computer systems are involved heavily in counting at the moment, but I accept the basic proposition that eventually they will be.

[Lord Campbell-Savours]

I think my noble and learned friend has missed one of the merits of the system. If the canvasser goes to the door and says to the voter, “I’m not asking for you to give me a full vote, but if you just vote for me as your third preference, I will get one third of the vote”, that is actually an incentive for those people who might worry that if they give their third preference weighted at 100 per cent in terms of value, they might actually be interfering with their first preference. I would have thought that that is quite a considerable argument.

[Lord Falconer of Thoroton]

It is a matter of saying, “How much do you like me?” and being told, “Not enough to give you the whole of my vote”. The answer could be maybe a quarter, a fifth or a sixth. The candidate says, “Unfortunately, there are only four candidates in this, so you can’t give me a sixth”. I do not think that it is realistic. I recognise the problem, but I do not favour the solution. I described the noble and learned Lord, Lord Wallace of Tankerness, as a gem but what I meant was a pearl.

[Lord Wallace of Tankerness]

I am not quite sure how to take that. I start by reassuring the House that although I have an interest in electoral systems, I cannot recall ever going to bed thinking about them. I doubt I will even do so tonight.

The noble Lord, Lord Rooker, has put forward a system that would involve some fractional vote. As I read his amendment, at first I thought, as the noble Lord, Lord Campbell-Savours understood it, that the second preference got half of a vote, the third preference got a third of a vote, the fourth preference a quarter of a vote, and so on. However, in the light of the comments the noble Lord made on 8 December, his intention may instead be that where there is no winner in the first round of counting, and a further round of counting is necessary, the value of any votes reallocated from the eliminated candidates to the candidates who are still in the count would be determined by the position the eliminated candidate had in the first round of counting. In other words, if the eliminated candidate finished fifth, the value of the reallocated vote would be one-fifth and so on. The fact that there is that dubiety in the amendment—when I first read it, I took it to mean the same as the noble Lord, Lord Campbell-Savours, obviously did—underlines the complexity that arises.

My noble friend Lord Lamont said that the important thing, in terms of simplicity for the voters, is that they are invited to number their candidates 1, 2, 3 and 4 and, if there is complexity, that is for the counters to work out. If we went down the road proposed by the noble Lord, Lord Rooker, there would be some complexity when we were being interviewed by Jeremy Paxman and we were trying to explain where the one-quarter vote and the one-fifth vote came into it. However, I also take the point that the noble Lords, Lord McAvoy and Lord Lipsey, and others made, that although at one level voters are invited to order their preferences as 1, 2, 3 and 4 so far as they wish, there nevertheless is a requirement that they have some understanding. They do not need to know all the complex details, but they need to have some understanding of how the system will work.

The purpose of the alternative vote with the system that we are proposing is that it gives equal weight to votes that are still in the count. That meets the clear, simple and practical tests that the noble and learned Lord, Lord Falconer, suggested that there should be. The amendment goes against that; it says that some votes should count for less. Where some would say that people “part company”, I would suggest instead that there is a misunderstanding of the position in failing to make the distinction between a preference and a vote, or in somehow suggesting that if, for the sake of argument, the BNP came last and were first to be eliminated, it would be the second preferences of the BNP’s vote that determined the outcome. In fact, it would be the voters’ second preferences that determined it.

It was said that everyone should have two votes and it is not right that, at the second count, someone has only one vote, whereas the person whose second preference has been transferred has two votes. In fact, at the second count, the person who expressed the first preference and who is still leading has a vote again. The vote still counts as a full vote in the second count.

--- Later in debate ---

[Lord Wallace of Tankerness]

That is the way that particular system works. It is the system we have used in this House for electing the Lord Speaker. I do not recall anyone challenging the validity of the system working for that purpose. It is the system that works in Scottish local government by-elections and I have never heard any suggestion that it is perverting the result.

What it could do is potentially dissuade voters from exercising the wider choice that is offered by the alternative vote. If it may be suggested that their subsequent preferences are somehow not going to have any weight at all, they may be deemed to be wasted votes. I would hope there was some degree of consensus that, whatever system you wish to adopt, the idea of having a wasted vote is one we should seek to avoid. By the proposal put forward in this amendment, some votes, if they are down to fractions, cease to have the value which I should like to see—

[Lord Falconer of Thoroton]

What if you have wasted a vote and vote for a candidate who does not succeed?

[Lord Wallace of Tankerness]

We could go into the merits of the first past the post system and there are a considerable number of wasted votes for candidates who do not succeed. In some cases it can be up to 40, 50 or 60 per cent of votes for candidates who do not win. Under the present system, anyone who votes for a candidate who wins, which is more than a majority of one, is technically described as a wasted vote, too. We are getting into the debate of the first past the post system against the alternative system. That is a matter for the referendum campaign. We could go round the houses debating the relative merits of the system, as I will do during the referendum campaign, but what I am seeking to do for the purposes of this amendment is to indicate that the reallocated votes of the fractional votes imports a degree of complexity and it means that votes do not have full value in subsequent counts, which would happen under the system proposed in the Bill.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Foulkes, is again rehearsing the kind of arguments that we will no doubt exchange in some television or radio studio in the coming weeks and months. I thank him for giving me forewarning of the arguments that he proposes to adopt. With regard to the amendment proposed by the noble Lord, Lord Rooker, as I have indicated, we do not favour an approach that would involve a reallocation of votes on a fractional basis. There are practical considerations. Nor, I understand, does the Front Bench opposite. There could be complications for voters in understanding it. I take the point that all the voter has to do is go into the polling station and write 1, 2, 3, 4. Nevertheless, understanding is required. I am not aware of anywhere else that uses the system proposed by the noble Lord, Lord Rooker. Therefore, I urge him to withdraw his amendment.

[Lord Falconer of Thoroton]

The noble and learned Lord is right that I do not support this amendment but he is completely wrong to say that we should not debate the anomalies in the AV system that is being proposed. As we keep saying, this is a compulsory referendum so the system that is being adopted must be subject to rigorous scrutiny to see what its shortcomings and anomalies are. The points that the noble Lord, Lord Foulkes, is making are inevitable when you are looking at the detail of a system.

[Lord Rooker]

My Lords, I decided not to move two earlier amendments today. I wanted to concentrate on the main cause, which is this one and I freely admit is not run of the mill. I came across a reference—only a reference—to the system in a footnote to some text I read recently. I thought it was the solution. One way or another, the central flaw in AV has been explained by the noble Lord, Lord Lamont, and my noble friend Lord Campbell-Savours. It will be incredibly difficult to explain to people.

I am not arguing about the text; I know what I understood and I explained what I wanted. It is the vote for the person who comes last, whether they are third, fourth or fifth, that gets transferred. It is true that that is the only vote that gets transferred. I might be accused of being completely unfair but I look on that allocation as a new vote. The others have not been altered. These are new votes coming into the system. If there were seven candidates, the one coming seventh would be knocked out. I have assumed that the bottom one would be knocked out but sometimes it might be the bottom two. The reallocation of the second choices of the voters who voted for the candidate who came seventh would be new votes for the top six. In a way, it is not the same election. That is what is so unfair about it. Nobody else’s second preference comes into play. As I say, there is an inherent difficulty in this system, which will be apparent only when we come to use it.

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[Lord McAvoy]

My Lords, I support the amendment of my noble friend Lord Beecham but only in the context of where we are with that system. I believe very strongly that the first past the post system should stay and I do not want anyone to say—although, of course, I cannot stop anyone saying it—that supporting the amendment in the context of where we are necessarily means that I am deserting my support for first past the post.

This is a modest amendment. On the other hand, romantic candidates, Official Monster Raving Loony Party candidates and the “independent with a cause” candidate can all sound okay but, in a serious parliamentary democracy, is it right that such a small proportion of the vote should be used elsewhere? We are running serious elections for serious and responsible elected positions and, although having the freedom to stand for election and to campaign and so on is an absolute right, I do not think that that type of candidate who polls less than 5 per cent of the vote should be allowed to distort the electoral system and the democratic process. Then again, I keep asking myself why people get involved in that kind of party when it is all a lot of nonsense. Nevertheless, speaking as a realistic politician, I have to say that the amendment is before us and it needs to be discussed. However, if anyone wishes to use their charms on me, I am still willing to be convinced by an objection to my noble friend’s amendment.

My noble friend Lord Lipsey is great to listen to and I admire him. He is a formidable person but I do not think that he came up with any reason why the amendment should be opposed. He came up with an intellectual reason, and it is right and proper that that is aired. However, we have to take the real world into account and I do not think it is right for a party with a small percentage of the vote to distort the vote. In the context of what we are discussing, I have no hesitation in supporting my noble friend’s amendment.

[Lord Falconer of Thoroton]

The amendment of my noble friend Lord Beecham basically says that, if a candidate gets 5 per cent or less of the vote, the second preference votes for that candidate are not reallocated. I do not think that it necessarily follows that, if you get a low vote, your second preference votes should be any less valid than if you get a higher percentage of the vote. In certain circumstances, one can imagine Green Party candidates, for example, getting a very low vote—well below 5 per cent. The noble Lord, Lord Deben, in regarding Green Party candidates as more worthy than those of the Official Monster Raving Loony Party, is effectively making a value judgment about parties based only on the number of votes that they receive. It seems to me that it is very difficult to see a logical or intellectual basis for saying that 5 per cent or below is not an acceptable figure. Is there a political argument that says that 5 per cent or less is the sort of figure that extremist parties get? Possibly there is but, again, I believe that in relation to an electoral system it is dangerous to start characterising people whom you do not like as “extremist”. Of course, we all regard the BNP as extremist but there are other parties that some of us would regard as extremist and others would not. Therefore, although I understand the purpose of my noble friend’s amendment, I do not think that it stacks up, so I am afraid we will not support it.

[Lord Wallace of Tankerness]

My Lords, I agree with much of the analysis of the noble and learned Lord, Lord Falconer. Just because the total is a small figure, there is no reason why the second preference votes should carry any less value. It is also important to reflect, as the noble Lord, Lord Lipsey, said, that the purpose of a system is to provide a wide choice for voters. Under this system, every vote has equal value and is allocated to the candidate who is ranked highest in the preferences marked on the ballot paper and who is still in the contest. It is only fair to assume that in a second round the person marked as the first preference is the one whom the voter wishes to see come first, and it is important that that vote has full value.

[Lord Foulkes of Cumnock]

Can the Minister help me? I have had a quick look through the Bill and I cannot find any provision, although it is probably carried over from existing legislation, where candidates have to pay deposits and, if they get less than a percentage of the vote, they will lose that deposit. Is that provision still there? If that is the case, I am afraid my noble and learned friend, Lord Falconer, might have to rethink because, if someone is going to lose their deposit, why should the votes be transferred? The threshold for losing the deposit was set at that level for a particular reason. I do not remember when it was set and what the reason was, but presumably it was that the candidate had failed to convince enough electors.

[Lord Falconer of Thoroton]

Where you take someone’s deposit away because they get less than 5 per cent, you are in effect “punishing” the candidate for standing because he could not get enough support. You would be wrong to punish the people who vote for him.

[Lord Wallace of Tankerness]

The noble and learned Lord virtually took the words out of my mouth. There is a difference in that, if there is a penalty on the candidate, it does not follow that the penalty should then be on the voter who has in all good faith expressed a second preference. The noble Lord, Lord Lipsey, made the point that it could be a way to penalise smaller parties, or indeed, as he put it, local campaigns. Let us remember that at recent general elections in this country and at a Scottish election in 2003 a candidate opposing hospital closures won. It might not necessarily have been obvious at the outset that these people were going to get far more than 5 per cent, but the fact that they are perhaps not mainstream in no way means that they should be devalued. It may well put people off from voting for candidates who appear to be coming from a local campaign, or let us say a non-mainstream party, if it was thought in some way that the second preference was not going to count. The object, as the noble Lord, Lord Lipsey, said, is to broaden choice, and I fear that the amendment in the name of the noble Lord, Lord Beecham, would not contribute to that broader choice. I therefore urge him to withdraw his amendment.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

53A: Clause 9, page 7, line 16, leave out “publicly”

[Lord Falconer of Thoroton]

My Lords, this takes us to a wholly new and equally riveting topic: namely, the process of making the results public in the course of an election count.

I refer your Lordships—those who are still awake—to the following:

“If no candidate is elected (as mentioned in rule 45A(2)) at the first stage of counting, the returning officer shall, immediately after that stage, record and make publicly available the following information … the number of first-preference votes obtained by each candidate … which candidate was eliminated; the number of rejected ballot papers”,

so we will have a very different series of announcements during the course of an election. Obviously what happens now is that the returning officer says what votes everyone has in the first past the post system. We know who has won and who has lost.

On the basis of new Section 45B(1), I envisage after the first round of counting, in which most prospective parliamentary candidates will not get 50 per cent of the votes, that there will be a public announcement in each constituency of where it has got to. I take that from the words:

“If no candidate is elected … the returning officer shall, immediately after that stage, record and make publicly available the following information … the number of first-preference votes … which candidate was eliminated”,

and so on. The public will therefore know how the vote is going in each constituency and where it has got to. My knowledge of how the system worked most recently was in the Labour Party leadership election when they went through the whole calculation and then announced what had happened at each stage, so there was transparency about what happened at each stage but it occurred only at the end of the process.

--- Later in debate ---

[Lord King of Bridgwater]

Do I understand the noble and learned Lord to be actually suggesting that instead of this being made publicly available, it should be given to the representatives of the candidates so that it can be done by leak?

[Lord Falconer of Thoroton]

A lot of information is given to candidates and their representatives at the moment that is not leaked, entirely legitimately, and not made public. I would like to hear the Government’s position on this.

[Lord Wallace of Tankerness]

My Lords, as the noble and learned Lord has indicated, these amendments provide that if no candidate is elected at the first stage of counting—that is, if no candidate secures more than 50 per cent of first-preference votes—the returning officer would not make publicly available certain specified information about the state of play at that stage, including the number of first preference votes obtained by each candidate and which candidate was eliminated, but would make the information available to candidates and their representatives only. I have a lot of sympathy with the intervention by the noble Lord, Lord King. It would soon leak out, and I think it is far better that it is done publicly.

The clause is not prescriptive, so it is up to the returning officer in each case how he or she will make that information public. The purpose is so that there is transparency. There is no requirement for an announcement to be made, although the amendment in the name of the noble Lord, Lord Snape, that was recently not moved would have required a public announcement to have been made, and the specified information, which would include the details of the number of votes obtained by each candidate and the candidate who had been eliminated, could well be displayed, for example at the end of each counting stage, in written form or could be relayed on television screens at a count venue.

I was not present at any count on the morning of the last Scottish election because I was in radio studios with the noble Lord, Lord Foulkes, but I understand that at least at one count that my wife attended in Orkney the votes—based on a slightly different system—were being shown on a screen as they were being counted, so it is possible for that information to be made available. I can make it very clear that this is to ensure that the candidate, the media, accredited observers and other persons present at the count are aware of the state of play at the end of the counting stage and that the count is conducted in an open and transparent manner. I hope with that reassurance that it is intended to promote transparency, that it is not prescriptive, that it is a matter for the returning officer as to how that information is made public and that there are ways of doing it in written form as well as by making an announcement, that the noble and learned Lord will not press his amendment.

[Lord Falconer of Thoroton]

I found that a helpful and clear description which, from the sound of it, is a sensible way of doing this. However, I shall read in Hansard what he has said before making a final decision.

Amendment 53A withdrawn.

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Moved by

[Lord Falconer of Thoroton]

53D: Clause 9, page 7, leave out lines 33 to 42

[Lord Falconer of Thoroton]

Clause 9(4) reads:

“The Minister may by order make any amendments to primary or secondary legislation (whenever passed or made) that are consequential on amendments made by this section or Schedule 10”.

It gives the Government a power to amend any section of primary legislation or secondary legislation in order to give effect to these provisions. Normally, we would expect to see the provisions that are being amended so that Parliament has an opportunity to consider them. Why are we not seeing the respective provisions that are being amended, and does this include the power to amend Acts of Parliament made after the passage of this Act? I beg to move.

[Lord Wallace of Tankerness]

My Lords, I can reassure the noble and learned Lord and the Committee that the breadth of the power is limited to amendments that are consequential to the changes being made by Clause 9 and Schedule 10. It is envisaged that in order to introduce the alternative vote system, should that be the wish of the referendum, amendments will be required to provisions in existing secondary legislation which concern the conduct of United Kingdom parliamentary elections. For example, changes will need to be made to certain forms that are prescribed for use at a UK parliamentary election including the poll card issued to electors prior to polling day to provide them with information on how to exercise their vote at the election, and the postal voting statement which postal voters must complete and return with their postal vote, and which again includes information about casting their votes. These forms are set out in secondary legislation. While we believe that all the necessary primary legislative provisions are in the Bill, it seems sensible not to have our hands tied. This power therefore covers any possible consequential changes to primary legislation that may be deemed necessary to implement the alternative vote.

I can offer a reassurance to your Lordships’ House that, as Clause 9 is currently drafted, before making an order under subsection (4), the Minister would be required to consult the Electoral Commission, which would give an independent view on any change. Such an order would be subject to the affirmative resolution procedure and would therefore have to be debated and approved in each House. I can confirm that it could allow amendments to be made to Acts passed before and after the Bill, but as I have indicated, this is for technical issues and not to change any matters of policy. In our memorandum concerning the delegated powers in the Bill for the Delegated Powers and Regulatory Reform Committee, we covered the order-making power in Clause 9.

[Lord Wallace of Tankerness]

I do not think that that would be an appropriate use of the power. It is important that when Parliament determines what the system should be, that is the system which is put to the people in the referendum and should not be tweaked. As I have indicated, this makes provision for amendments to primary or secondary legislation to be made that are consequential and necessitated by this clause or by Schedule 10. As I have indicated, they are related to things like the poll card or the information that goes with postal votes.

Just before the noble Lord, Lord Campbell-Savours, intervened, I was going to end by saying that we have not been made aware that the Delegated Powers and Regulatory Reform Committee has made any critical or adverse comments in respect of these provisions. We believe that they are necessary and appropriate. In the event of a yes vote in the referendum, they will facilitate the implementation of the alternative vote.

[Lord Falconer of Thoroton]

I quite understand the noble and learned Lord’s position in relation to secondary legislation. Clause 9(7) states:

“An order under subsection (4) may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament”.

So we will get an opportunity to debate it.

Does the noble and learned Lord have in mind some provisions of primary legislation? He rather glossed over primary legislation. If changes in primary legislation are envisaged, why are we not being told what they are so that we can address them head on?

[Lord Wallace of Tankerness]

As I indicated—perhaps I did not make it clear enough—we believe that the necessary primary legislative provisions are in the Bill and therefore we do not have anything in mind. I have indicated some of the provisions which are in secondary legislation, but we believe that the primary legislative provisions are already in the Bill. However, it seemed sensible to ensure that we did not have our hands tied if something was to arise.

[Lord Falconer of Thoroton]

That is an interesting answer. Does the noble and learned Lord think it would be sensible not to include this power in relation to primary legislation? It is dangerous to include in a Bill a power to amend primary legislation when you have no primary legislation in mind but think it might be useful later on—particularly in relation to future legislation where you think you might have made a mistake and you then want to use the power to amend it. It appears to circumvent the important scrutiny that this House and the other place give to primary legislation. Will the noble and learned Lord think again about primary legislation? I am happy with secondary legislation.

Lord Wallace of Tankerness: I hear what the noble and learned Lord says. As I have indicated, the measure would relate to consequential amendments, but I am prepared to give it further consideration as regards primary legislation. As I said, it is there so that we do not find ourselves in a position where it is discovered that primary legislation could somehow prevent effective implementation of the affirmative vote in a referendum. I shall certainly reflect on what the noble and learned Lord has said with regard to primary legislation and I hope that he will withdraw the amendment.

[Lord Falconer of Thoroton]

My Lords, on the basis of the generous assurance given by the noble and learned Lord, Lord Wallace of Tankerness, that he will consider what I have said in relation to primary legislation, of course I shall withdraw the amendment.

Amendment 53D withdrawn.

--- Later in debate ---

[Lord Campbell-Savours]

I shall very briefly intervene and just make a comment before this debate closes this morning. This amendment would provide for making an order to amend the primary or secondary legislation consequential on amendments made by this clause. Any such award would have to be the subject of consultation with the Electoral Commission and also with the Northern Ireland Assembly, the Welsh Assembly and the Scottish Parliament. The question is, “Why consultation?”. I shall address my remarks to the two new noble Lords elevated to this House today, the noble Lords, Lord Lingfield and Lord Dobbs. This is a bit of a baptism of fire for them, really; they must be wondering what they have come into. It is a very good question, and the answer is very simple. We are dealing with a Bill that has been the subject of no consultation whatever. There was no inquiry, no prior scrutiny and no real notice of what was coming, and we object. We are now scrutinising this legislation line by line. Much of this could have been avoided if we had been through a proper process. What those two noble Lords are now seeing is just an abuse of Parliament by way of introducing a Bill in this way. I would advise them—and one hopes that they will stay here for many years to come—that if ever they are in a position to influence events in future, to advise their colleagues not to introduce legislation in this way in the future. Because this will go on for weeks, and only because the process that led to this legislation was wrong. That is all that I have to say.

[Lord Falconer of Thoroton]

My Lords, the effect of the amendment is that before making an order under Clause 9(4), which allows the Government to,

“make any amendments to primary or secondary legislation … that are consequential on amendments made by this section or Schedule 10”.

At the moment, the Minister has to consult the Electoral Commission. Inevitably, amendments made under Clause 9(4) could affect the position in relation to the Welsh Assembly or the Scottish Parliament. As to how they might affect primary legislation—I see the noble and learned Lord, Lord Wallace of Tankerness, looking troubled by that. He has just said very candidly that he has no idea what primary legislation might be amended by using Clause 9(4). His inability to understand that it might affect the Scottish Parliament or the Welsh Assembly is surprising, I have to say.

Before you produce an order that amends primary legislation, which currently cannot be identified—I am not criticising the noble and learned Lord for that—and which may not even be passed, because it may include future legislation, what is wrong with consulting the Scottish Parliament or the Welsh Assembly? We have had read to us the views of the Scottish Parliament and the Welsh Assembly on a number of occasions about the fact that they were not consulted about the date of the referendum, which is taking place on the same day as the Scottish Parliament or Welsh Assembly elections. They were plainly upset by that. What is the purpose of not consulting? What is the anxiety about consulting? We are talking about a national electoral system here, and a national vote. Surely the Scottish Parliament might have views that could be taken into account. I ask the noble and learned Lord to take that position into account. Points have been made about what has happened this evening. It is four minutes past one now. My understanding of how the House operates is that the Government Whip and Leader consult and then decide what to do. The Leader of the House today appeared not even to consult his own Chief Whip about sitting until four minutes past one. The reason I say that is because I am told by the Opposition Chief Whip that the noble Baroness was proposing that we went on for one more amendment. It might well have been sensible to go on to four minutes past one, but we have done it without, for example, giving the staff warning in advance and without there being proper consultation. All I say to the Leader of the House, who is much liked in the House, is please consult before going on till five past one.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Foulkes, has invited me to give a description of the working of the Scottish Parliament voting system. I will resist that. I do not think that it is necessary. He came to be elected, I suspect, because more Labour members lost their first past the post seats than he had anticipated in the Lothian region. If he has any queries about the system, it is a system which of course he agreed in the constitutional convention. He was a member of the Government that brought it forward and passed it as indeed that Government proposed in primary legislation separate seats for Orkney and Shetland, which I certainly supported, but it was of course a measure which was brought forward in a Bill from a Labour Government. What we are dealing with—

Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 13th December 2010 Lords Chamber

[Lord Foulkes of Cumnock]

I would need notice of that question.

I understand the import of what my noble friend says, but this has to start somewhere. We are a pioneering country—why should we not start with this? Okay, it is a pro-European kind of amendment, and I know that not all my noble friends are as enthusiastic about the European Union as I am, but it is a good way to start.

The mother of two of my grandchildren is French; I must declare an interest in relation to that. She has now moved to Scotland. To all intents and purposes she is a citizen of Scotland and the UK, although she retains her French citizenship. There must be so many people like that. Think of the Poles who came over. Some of them fought for us in the Second World War—there are not many of them left—but some are still not British citizens. There are other Poles who have come over and, while some have gone back, some of them have now made their homes in the United Kingdom. Some came over to work in the mines in Ayrshire and in other parts of the United Kingdom. Some have retained their citizenship of other European countries but, to all intents and purposes, they are now as much United Kingdom citizens as the rest of us. They are paying all their taxes, so should they not vote? There is a strong argument there, as well as the practical arguments about conflating the franchise.

My noble friend Lord Rooker described his earlier amendment as a “lifeboat”. We provided that lifeboat for the coalition. The coalition has not jumped on to that lifeboat yet but it is waiting, bobbing alongside the coalition liner, ready to provide some help if 5 May proves difficult. This amendment is not so much a lifeboat as a lifebelt for my noble friend—he is still my noble friend—Lord McNally. If he wishes to take it, he can make life a lot easier for the polling officers. He can go back to his colleagues in the other place and say, “We’ve improved the Bill in this way. We’ve made it easier for people to vote. We’ve made it less cumbersome and less confusing. That’s one argument that that fellow Foulkes can no longer keep on pursuing”. I hope that the Minister will see this as a lifebelt and grasp it with both hands.

[Lord Falconer of Thoroton]

The amendment of my noble friend Lord Foulkes identifies a problem that arises from the Government’s plan to combine the date of the referendum with already scheduled polls in the devolved regions and local authority areas across the United Kingdom. Citizens of other European Union member states who are resident in the Untied Kingdom can vote in local government elections. A French citizen living in Leicester will be able to cast their vote in the unitary authority elections on 5 May. An Italian citizen who lives in Newcastle upon Tyne will be able to do the same, as will a Spaniard in west Somerset.

Those who are resident in Scotland and Wales, by virtue of their residency and not their citizenship, may vote in either the Scottish Parliament or the National Assembly for Wales elections. Consequently, a German citizen who lives in Cardiff will be able to vote for his local AM in May, as a Belgian in Edinburgh will be able to vote for her local MSP. However, when any of these people go to the polls next May, they will not be eligible to cast a vote in the Government’s proposed referendum. The consequence, as the noble Lord, Lord Tyler, so emphatically and eye-poppingly enthusiastically said before supper, of having different electorates for different votes would be terrible. This is what my noble friend Lord Foulkes of Cumnock has indicated is the position.

Clause 2(1)(a) of the Parliamentary Voting System and Constituencies Bill states:

“Those who are entitled to vote in the referendum are … the persons who, on the date of the referendum, would be entitled to vote as electors at a parliamentary election in any constituency”.

This explicitly does not include citizens of other EU member states who are resident in the UK. As my noble friend has argued, there is potential here for administrative confusion. The polling stations in the 80 per cent of the country that will be combining polls on 5 May will be administering multiple franchises. There will need to be two separate lists of eligible voters: one for the referendum and one for the local and devolved elections. This is the argument behind my noble friend’s amendment. I see that the confusion argument has force but I would deal with it differently. I would deal with it on the basis that the answer is not to combine, but to move the referendum to a date other than 5 November.

[Lord Rennard]

5 May.

[Lord Falconer of Thoroton]

What did I say?

[Lord Rennard]

5 November.

[Lord Falconer of Thoroton]

Sorry, it felt like blowing up Parliament. I apologise for the confusion. My noble friend Lord Rooker’s amendment, which was agreed to in this House, provides the coalition with the opportunity to move the date, which it can still take.

My conclusion on behalf of the Front Bench is that we should move the referendum date, not change the franchise for the referendum. If citizens of other EU member states who are resident in the UK cannot vote in UK parliamentary elections, which is the current position, why should they be given a say in which electoral system is to be used in such elections? There is even an argument that, on a question that goes to the heart of the British constitution, citizens of other EU member states should not be able to express a view.

Furthermore, on the basis of reciprocity, we should not allow citizens of other EU states to vote to influence our parliamentary elections, since British citizens are not—as far as I am aware—permitted to take part in elections in any other European Union country apart from Ireland. The reason why Ireland and the UK have reciprocal arrangements has absolutely nothing to do with the European Union; it is to do with history that stretches way back before the EU.

There is an anomaly here but it can be dealt with in the way that has been suggested. It really pains me to disagree with my noble friend Lord Foulkes of Cumnock. We support the same football team. My son was here earlier, wearing the Heart of Midlothian colours. That is why I feel bad about not supporting my noble friend, but I feel unable to do so in relation to this amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, in this group there are two amendments and the clause stand part debate. The first, Amendment 39, is in the name of my noble friend Lord Foulkes of Cumnock, and seeks to delete Clause 4(3) on taking,

“The polls for the referendum and the Scottish parliamentary general election”,

together. The second amendment, Amendment 39A, is in the name of the noble Lord, Lord McNally. I have also given notice of my intention to oppose the Question that Clause 4 stand part of the Bill. I will come back on anything that the noble and learned Lord, Lord Wallace, says about Amendment 39A. That might be the fairest way to deal with it, unless the noble and learned Lord wants to speak before me on Amendment 39A. I am entirely in his hands.

[Lord Wallace of Tankerness]

If the noble and learned Lord thinks it would be helpful for me to speak to Amendment 39A, I will also deal with the other points that have been made and perhaps come back to him after he has had an opportunity to speak.

This has been an interesting debate. Some of the arguments have been well rehearsed before. In a debate a week ago tonight in Committee, the noble Lord, Lord Foulkes of Cumnock, sought in a very similar amendment not to have the referendum on 5 May. My noble friend Lord Strathclyde, the Leader of the House, responded, and the House took the view quite clearly that the amendment should not pass. I am always slightly wary of this position. I can understand the noble Lords, Lord Lipsey and Lord Campbell-Savours, who I think are basically in favour of some form of electoral reform, counselling against the date, but when the noble Lord, Lord Foulkes, who I know wants a no vote, tries to tell Liberal Democrats what is in their best interests, Greeks bearing gifts tend to come to mind. It is also interesting that the two sides of the argument—the one side that wants no and the other side that wants yes—think that there are equally good reasons for not having the referendum on 5 May. In some respects, they cancel each other out.

[Lord Wallace of Tankerness]

I know that the noble Lord is always willing to give advice to Liberal Democrats. It is for Liberal Democrats to judge when and when not to accept his advice.

We rehearsed some of these arguments with the noble Lord, Lord Browne of Ladyton, during the debate in the House last Thursday on the order relating to the Scottish elections in 2011. The point about this debate on the amendment in the name of the noble Lord, Lord Foulkes, which indeed relates to Scotland, in combination with the clause stand part debate on local elections and perhaps some mayoralty elections in England, elections to the Welsh National Assembly, and a series of elections and other local referendums in Northern Ireland on the same day, is that the effect of the noble Lord’s amendment—

[Lord Falconer of Thoroton]

What the Government are doing in the Bill is saying that the polls to be taken together are local authority elections in England, local referendums in England not Northern Ireland, and mayoral elections in England, as well as the Welsh Assembly general election, the Scottish parliamentary general election, the general election of Members of the Northern Ireland Assembly, and the Northern Ireland local elections.

[Lord Wallace of Tankerness]

That is correct. I am grateful to the noble and learned Lord for setting that out ad longam. However, the point about the amendment, or indeed the clause failing to pass, is not that the poll for the referendum on the electoral system for the alternative vote could not take place on 5 May; it is, rather, that two polls could take place but would not be combined. It is important that we recognise just what the impact would be either of not letting this clause stand part or of passing the amendment in the name of the noble Lord, Lord Foulkes.

[Lord Falconer of Thoroton]

That is an interesting point. Clause 4(1) states:

“Where the date of the poll for one or more of the following is the same as the date of the poll for the referendum, the polls are to be taken together”.

That refers to,

“a local authority election in England … a local referendum in England … a mayoral election in England”.

What the noble and learned Lord has said in relation to that is right; that is, if they are on the same day, they can all take place in the same polling station. However, Clause 4(2) to (4) appear to be different. They state that it is compulsory for the polls to be taken together, so they have to be on the same day.

[Lord Wallace of Tankerness]

That point was raised on Report in another place. In fact, it does not need necessarily to be the referendum. I think that I am right in saying that the Scottish Parliament, the Welsh National Assembly and the Northern Ireland Assembly have the powers themselves to move the date. Therefore, if they were to use those powers, it would not make sense that they should be stuck together. Amendment 39A seeks to address that point.

[Lord Falconer of Thoroton]

Will the noble and learned Lord confirm what I am saying? Under Clause 4(1), it is permissive, if they are on the same day, for the three named elections to be dealt with together—for example, in the same polling station. Subsections (2) to (4) refer to the Welsh Assembly elections, the Scottish parliamentary elections and the Northern Ireland Assembly elections. As a result of this wording, they have to take place on the same day.

[Lord Wallace of Tankerness]

If that is taken along with Amendment 39A, which provides:

“If any of the elections referred to in subsections (2) to (4) are not held on the same day as the referendum, this Part has effect with any necessary adaptations and in particular … if the Welsh Assembly general election in 2011 is not held on that day, subsection (2) and Schedule 6 do not apply”.

There is a similar provision for the Scottish parliamentary election. Paragraph (c) to be inserted under Amendment 39A states that,

“if any of the elections referred to in subsection (4) are not held on that day, that subsection and Schedule 8 either do not apply or apply only in relation to the elections that are held on that day”.

So there is provision for a separation.

[Lord Falconer of Thoroton]

To come back on that, I found the drafting of Amendment 39A extraordinary. Under Clause 4(2) to (4), there is a requirement, as the noble and learned Lord has just confirmed, to have the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly elections on the same day. But if they are not held on the same day—for a hurricane or something like that—then provision is made. Surely, subsections (2) to (4) would need to be amended as well in order to give meaning to Amendment 39A.

[Lord Wallace of Tankerness]

The purpose of the combination is that if the elections take place on the same day and are not, for some other reason, separated, they should be combined. If they are not combined, the amendment would have the polls being conducted on the same day, but separately. For example, there would be no effective provision for administrators to use the same ballot boxes. There would have to be separate polling stations, which, technically could be within the same building, but they would have to be separate, or they might not necessarily be in the same building. As I am sure that the noble and learned Lord realises, that is the purpose of the combination.

[Lord Falconer of Thoroton]

I am sorry, but if the noble and learned Lord looks at the wording, there is a distinction. Clause 4(1) refers to the fact that where they are on the same day they can be held together, which is plainly the point about not having to be in separate polling stations. Subsections (2), (3) and (4), as I thought the noble and learned Lord had confirmed, are drafted in different terms and are put on the basis that:

“The polls for the referendum and the Welsh Assembly general election … are to be taken together”.

So there is a requirement that they must be taken together, which means that they must be on the same day.

[Lord Wallace of Tankerness]

The noble and learned Lord will recall—he is stating the obvious—that when this Bill was brought to this House from the other place the referendum, prior to the successful amendment of the noble Lord, Lord Rooker, would have been on the same day. Therefore, as they were going to be on the same day, it made good sense, as I hope the House would agree, that the polls should be combined. I do not think that the Government should stand accused because there has been an amendment—the consequential amendment was not necessarily made here. In the debate last Wednesday, the noble Lord, Lord Rooker, was encouraging the Government to bring forward an order which would make it 5 May but could be subject to change as long as it was before 31 October.

So, when the Bill came to this House it stated that the referendum would be held on 5 May. That is the date for elections to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. Therefore it makes sense, if the referendum is still to be held on 5 May, and indeed it is still the Government’s position that they can achieve a referendum on that date. The Bill that was passed by the other place, published and brought to this House provided that the referendum would take place on the same day. I hope the noble and learned Lord and other Members of the Committee would agree that if they are held on the same day, it makes eminent common sense to combine the polls, and that is what is sought in Clause 4.

[Lord Falconer of Thoroton]

What the noble and learned Lord says is correct. If they are to be held on the same day, it is wholly sensible to combine them. Why are subsections (2), (3) and (4) set out in different terms from subsection (1)? If the reason for Amendment 39A is the result of my noble friend Lord Rooker’s amendment, why not just amend it and say that if the polls for the referendum and the Welsh Assembly take place on the same day, which is the effect of subsection (1), then they are to be taken together?

[Lord Wallace of Tankerness]

My Lords, I think that I have explained this. It has been a matter of some debate, but nevertheless it was expected that the elections to the Scottish Parliament would be held on 5 May 2011. It was expected that the elections to the Welsh Assembly would also be held on that day. Therefore, given that that was the date originally set out in the Bill as it came to the House prior to amendment, it makes sense to combine them. But before I sit down I will try to set out why the terms are somewhat different for the polls that will be taking place in England on that date. It could be that a particular date has not yet been set for a particular local referendum. That could be a possible explanation, but before I conclude, I hope there may be some explanation as to why the terminology is somewhat different.

--- Later in debate ---

[Lord Wallace of Tankerness]

Given that one part of the Government is likely to be supporting the yes campaign and one part, as likely as not, will be supporting the no campaign, I rather think that that might encourage people to look at the merits rather than find the best way to take it out on the Government. If there are two parties in a coalition and they are on either side of the argument, it is difficult for that argument to hold as much water as I accept that perhaps it has in the past. I am sure that the referendum on 1 March 1979 was not helped by coming immediately on the back of the winter of discontent. Nevertheless, that allowed a fair amount of cross-party support to try to get the yes vote out, and indeed the no vote. It is up to those of us who want to campaign to ensure that we are campaigning on the issues and not on some test of the parties in power. The fact that the poll is being held on the same day as other elections may mean that some of the more partisan effects that referendums—or referenda, whichever is your preference—may have on the question could be channelled into the elections being held that day. It may mean that we can have a proper debate on the relative merits of changing to the alternative vote system or of sticking with first past the post.

[Lord Falconer of Thoroton]

The Minister is giving a very helpful explanation of why he has put this amendment forward. In the light of what he has said, I now understand why he has done so, but the amendment does not seem to achieve its end. I understand him to be saying that the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly have the power to change the date of their elections and that, if they did so, the Government would not seek to move the date of the referendum. So the Government’s position is that if the polls are on the same day, they should be combined.

Clause 4(1) says precisely that. Why on earth are the Government drafting the Bill in the terms in which it appears to be drafted—that the polls for the referendum, the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly have to be held on the same day? Why are they not drafting it on the basis that, if the polls for the referendum and the Welsh Assembly are on the same day, they are to be taken together?

We do not agree with combination—we will come to that later when we say that Clause 4 should not stand part—but I cannot understand why the Minister is being advised that this is the way to achieve what he so clearly describes. Why are the Government not just saying that if the polls are on the same day, they are to be taken together?

[Lord Wallace of Tankerness]

As I have already explained, 5 May was the date originally set out in the Bill. I do not think that anyone is disputing that. It was the date set down for the elections for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. I shall speculate, and I hope that I can get confirmation for this, that there could be a local authority election in England that may not necessarily be on 5 May, whereas the Scottish parliamentary election has been set for 5 May.

[Lord Falconer of Thoroton]

But it could be changed.

[Lord Wallace of Tankerness]

The noble and learned Lord says that it could be changed. That is why we have brought forward the amendment. I do not believe that it contradicts at all.

I shall recapitulate. There could be a local authority election in England that need not be on 5 May. When the Bill was brought to this House, having been passed by the other place, it had been agreed in the other place that the referendum should be on 5 May. That was the date set for the Scottish election, the Welsh Assembly election and the Northern Ireland Assembly election. It therefore makes sense, and I think that this has been widely conceded, that if the elections were to be held on the same day, as was anticipated when the Bill was brought to this House, the polls should be combined for a host of good, sound administrative reasons. Subsequently there has been a change.

It was drawn to our attention on Report in another place that there was a potential problem. Because of the inherent powers in the statutes establishing the three devolved institutions, the election might not be on 5 May if they chose, for whatever reason, to exercise those powers. That is why Amendment 39A has been tabled. The noble and learned Lord may wish to debate whether it achieves its purpose. I think I have explained what its purpose is; it is to ensure that there was no dubiety and that the powers given to the Assemblies and the Parliament were not in any way infringed by the provisions.

That is it, very simply. I think it is relatively simple. The dates were anticipated, because of the way the Bill stood, to be the same. There could be a local authority election in England that did not necessarily fall on 5 May. The purpose of the government amendment is to provide that, if the Scottish Parliament—for the sake of argument—wished to change the date, it would be allowed to do so. It would not be inhibited from doing so by these provisions.

That is why the political arguments around whether the date is right or wrong are not relevant to this clause, which is, in some respects, a technical clause. It links to the various schedules. I pick up the point of the noble Lord, Lord Lipsey, who pointed to all the schedules when my noble friend Lord McNally said that this is a simple Bill. The schedules have been put into primary legislation, making provision for combining polls in England, Wales, Scotland and Northern Ireland. There are four separate schedules, covering matters that, in many cases, would be put into secondary legislation. However, for simplicity and given the nature of this matter, it made more sense for them to appear in primary legislation in the Bill. This led to extending the length of the Bill considerably, but that is why the schedules are there: it was thought better to have the combination of provisions in the Bill.

I rather hope the noble Lord, Lord Foulkes, will accept that the consequence of his amendment—this is why I ask him to withdraw it—would not necessarily be to change the date of the poll. He has already lost an amendment specifically on that. It would, however, mean that if the two polls were held on the same date, they could not be formally combined. Therefore, there might be people who would have to go to two separate polling stations. That is not in anyone’s interests.

I know that this is perhaps more technical than I anticipated but it is not a political argument about the date of the poll. It is a technical one, which says that if the polls fall on the same date—it is still the Government’s intention that we should achieve that on 5 May—it is in the interests of those who would take part, not least those who are administering it, such as the returning officers, that the situation should be simplified as far as possible. I recall a Question in the House, asked by the noble Lord, Lord McAvoy, in July, about a letter from the convenor for the Interim Electoral Management Board for Scotland. He asked formally for the polls to be combined if the election and the referendum took place on the same day. This is our response to the spirit of that request.

No doubt we will come back to this if issues are raised by the noble and learned Lord, Lord Falconer, but I hope the noble Lord, Lord Foulkes, will appreciate that, whatever the political argument—there has been plenty of political debate—the technical argument means that it makes much more sense to combine the polls, as proposed in this clause. His amendment would have the rather unfortunate effect of splitting them, should they take place on the same day.

[Lord Falconer of Thoroton]

It is important to see what Clause 4 says. That is why it is worth taking some time over these things. Clause 4(1) says:

“Where the date of … a local authority election … a local referendum”,

and,

“a mayoral election in England”,

is the same as that of a referendum, the polls can be combined. That does not commit the Government to having them on the same day. It is expressly conditional on their being on the same date.

The drafting of subsections (2), (3) and (4) is in different terms for reasons that are inexplicable, unless their purpose is to make it compulsory to have the polls on the same day. As far as that is concerned, although I completely accept that the Government intend that the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly should be able to exercise their powers to move the date, the fact that you have what appears on the face of it to be compulsion to hold the relevant polls on the same day appears to me, constitutionally, to lead to a situation whereby subsections (2), (3) and (4) would override the power of the Scottish Parliament to do that. The Government do not intend that outcome and therefore they should amend subsections (2), (3) and (4) to make them the same as subsection (1).

[Lord Mackay of Clashfern]

My Lords, it is important to read Amendment 39A before one gets too deeply involved in this argument. Amendment 39A says that if the relevant polls are to be on different days, “this Part” of the Bill—that includes subsections (2), (3) and (4)—has effect. If the noble and learned Lord, Lord Falconer, had drafted Amendment 39A, it might have been worded differently. Unfortunately, he is not, as yet, a member of parliamentary counsel and therefore he is left to criticise what they have done. However, parliamentary counsel have not left his point out of account, as the amendment states that “this Part” of the Bill, including subsections (2), (3) and (4), will be construed in this way.

[Lord Falconer of Thoroton]

If the noble and learned Lord, Lord Mackay of Clashfern, had drafted these amendments, I anticipate that he would have drafted them differently as well. On the face of it, this drafting confronts you with subsections (2), (3) and (4) comprising a compelling combination. Amendment 39A says:

“If any of the elections … are not held on the same day”,

yet subsections (2), (3) and (4) compel them to be on the same day. I completely understand what the noble and learned Lord, Lord Wallace of Tankerness, is seeking to achieve and I do not seek to stand in his way. However, his obdurate refusal to consider doing it the obvious way—namely, inserting at the beginning of subsections (2), (3) and (4), “if they are on the same day, they will be have to be combined”—causes me confusion. I earnestly ask the noble and learned Lord to ask his officials politely and respectfully whether it would not be easier to use the same wording as that used in subsection (1) and get rid of the confusion.

[Lord Browne of Ladyton]

As a mere junior counsel in the face of two of the most eminent senior counsels this country has ever seen, I enter this debate with great trepidation. I am extraordinarily grateful to my noble and learned friend Lord Falconer because the penny has dropped for me. The amendment that the Government propose becomes effective only if the polls do not take place on the same day. As long as the Bill stands as it is drafted, they can take place only on the same day.

[Lord Falconer of Thoroton]

The noble Lord, Lord Browne of Ladyton, is right and I refer him to the comparison between subsections (1) and (2), (3) and (4). However, I have made my point and I earnestly ask the noble and learned Lord, Lord Wallace of Tankerness, to consider taking the government amendment away and coming back with a measure on Report to achieve his aim, should Clause 4 still remain part of the Bill after the Committee stage.

I wish to address what the noble and learned Lord rightly describes as the political aspects of this. Clause 4 is included to allow for the combination of polls. It is intended to ensure that a variety of elections can take place together. As a matter of principle, we think that that is the wrong approach to that issue. There is no dispute in any part of the House regarding the importance of the referendum. I cannot recall a referendum over the past 150 years—it is more a case of reflecting on history than personal recollection—which concerned the voting system. I think most people in this House would agree that we should hold referenda only in relation to very important constitutional issues. The referenda held since the Second World War concerned: the partition of Ireland; staying in the European Union; the 1978 referendum on devolved Assemblies for Wales and Scotland; and the 1998 referendum on devolved Parliaments or Assemblies for Wales and Scotland—all very important issues. As far as I am aware, each of those referendums has taken place alone, without there being any other poll on the same day. That is a sensible course whereby this country’s approach to referenda is that you have them only when there is an important constitutional issue. We heard from my noble friend Lord Lipsey and the noble Lord, Lord Hamilton, who both said how important the issue is.

We also have the report from your Lordships’ Select Committee on the Constitution, which is a cross-party organisation that spoke unanimously on the issue. The committee cited evidence that the effect of having elections on the same day as a referendum is that the referendum debate gets swamped by the election of individual people. If you look at America, where frequently referenda take place on the same day as elections—such as those in November this year—you find that no one pays much attention to the referenda and everyone pays attention to the election of individual people. If the Select Committee of this House is right, you are in danger of the referendum question being swamped by the election of people in the three—or even four, if there is also a mayoral election—other elections going on at the same time.

Why is this being done if it is such an important issue? Everyone in this House wants the constitution properly to be given effect to. I do not want there to be a sense of illegitimacy about the result. Whatever view one takes about this referendum, one wants it to be decisive—decisively in favour of either first past the post or the alternative vote system. The result could be close, but you would want a good turnout and the sense that the question had properly been addressed.

This is the second national referendum in 120 years. It is the first one to affect our electoral system—the one that will make people have a view about whether they trust their electoral system. This Government, as I understand it, justify bringing the referendum together on the same day as the other elections when there is formidable evidence that it leads to the question being swamped. The Government justify that on the basis that it will save some money. Money is important, but it may be that the legitimacy of our constitution is more important.

This is a fundamental point of principle, and it is not too late for the Government to change their position. I should have thought that everyone on the government side, whether they are for or against a change in the electoral system, would want the result of the referendum to be something that the country has confidence in. What we are doing on this side is, in effect, reflecting the arguments of experts who say that having the referendum on the same day as other elections is not a good idea. It deprives the result of legitimacy.

[Lord Maclennan of Rogart]

I am grateful to the noble and learned Lord for giving way. He gave an American example, because he could not refer to any British example or precedent. However, as recently as November, California—a state close to bankruptcy—decided in one day both to change the party in government there and have a conservative outcome in a referendum on gay marriage. I do not think that it is appropriate to draw any conclusions from the American example, except that people are intelligent enough to understand what they are doing—and they do it even when there appears to be some conflict between their decisions.

[Lord Falconer of Thoroton]

The American experience, which is part of the evidence relied on in these debates, suggests that in the polls in November, either in mid-term or general election years, the tendency of the public is not to focus on the proposition but to focus primarily on the people they are electing. In the coverage in November I did not spot the result of the proposition in California; all I spotted, which is where all the coverage was in America, was who was going to win in California. So the American experience tends to confirm what the Select Committee said—that the referendum question gets swamped in the question, for example, of who you want to be your Government in Scotland, Wales or Northern Ireland.

Why is it being done like this? Is it only to save money or are there other reasons? The amendment of the noble Lord, Lord Rooker, to which we have all agreed, has given the Government the opportunity to hold the referendum on a different day. In answer to my opposition to Clause 4 standing part, it is necessary for the Government to say why they think it is right that this critical question should be dealt with on a day when there are other polls; when it has never before been done in our history; when experience in other jurisdictions suggests that the referendum question gets swamped; when anyone who has any care for our constitution wants the result to be decisive. I do not want a situation where whichever Government are in power seek to change the electoral system; I want something that is settled as far as the people are concerned. That has always been the purpose of referenda in the past. Furthermore, quite separately from those points of principle, there is inevitably scope for confusion with so many elections going on with different electorates.

I shall listen very carefully to the noble and learned Lord, Lord Wallace of Tankerness, justifying why an issue as important as this is being dealt with in a way which seems to make it harder to come to a legitimate result than easier.

[Lord Wallace of Tankerness]

My Lords, as I indicated when I spoke earlier in dealing with these amendments, the nature of Clause 4 is of a technical combination; it is not one of the political arguments. The political argument was debated in this House quite thoroughly last Monday evening in Committee and, indeed, my noble friend Lord Strathclyde gave the answers to the questions of the noble and learned Lord, Lord Falconer. He may not have liked the answers, but that is a different matter. The House then came to a view and endorsed the argument put forward by my noble friend Lord Strathclyde. The amendment seeking not to have the referendum on 5 May—which I think was tabled by the noble Lord, Lord Foulkes; he will correct me if I am wrong—was defeated.

The purpose of Clause 4, as I have indicated, is of a technical nature. It ensures that if the polls take place on the same day they are combined. That makes good sense for the voter—who I hope is still the most important person in this—and it makes good sense for those administering the elections. The Opposition have acknowledged and conceded that that is the case and that the technical arguments are very strong.

The London mayoral referendum took place on the same day as London elections, so the idea that having a referendum on the same day as elections is unprecedented does not hold water. As that was brought forward by the party of the noble and learned Lord when it was in government, one assumes it thought that it was quite an important referendum. Given that we have had only one UK-wide referendum in our history, I do not think we can use it to set a precedent. As I said, the arguments on the politics have already been made in a previous debate. This is very much a debate on the technical nature of combination.

The reason why the terms are different in subsection (1) is that the elections to the Scottish Parliament, the Welsh National Assembly and the Northern Ireland Assembly are fixed by statute. The particular local elections are not necessarily fixed by statute, hence the different wording. The amendment of my noble friend Lord McNally has the same effect.

[Lord Falconer of Thoroton]

Why does the fact that it is fixed by statute but can be changed make a difference?

[Lord Wallace of Tankerness]

Sorry, I do not follow the noble and learned Lord’s point. In the Bill as it originally stood prior to any amendment, the date was to coincide with the statutory dates for the other elections—hence the wording of these proposals. My noble friend’s amendment makes provision that, if the referendum was not on the same day as a poll for the Scottish Parliament, the Welsh National Assembly or Northern Ireland Assembly, the relevant schedule will not apply and, therefore, they will not be combination. That is what this clause is about and what this amendment is about. I ask the noble Lord, Lord Foulkes, to withdraw his amendment, as it could have an unfortunate effect, which I am sure is not what he intends. I ask the Committee to support the clause, which is important from a technical point of view, not least in the interests of voters.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I hope that that is now clear. There is a lot of money to be made by lawyers one way or another in challenging this. Certainly, it looks strange to me.

I have a couple of things to say in relation to the debate on the amendment in the few minutes that we have left. The noble Lord, Lord Hamilton, made a powerful point when he said that an extensive debate on the referendum was needed. Someone said in a previous debate that this great debate needed its own space, unsullied by local and Scottish elections. My noble friend Lord Lipsey spoke as usual with eloquence and grace, although I disagreed with much of what he said. One thing that I did agree with was his questioning of the idea that this was a simple Bill. It is not a simple Bill. The noble Lord, Lord McNally, described it as aiming for fair votes and fair boundaries. The noble Lords, Lord Strathclyde and Lord McNally, and now the noble and learned Lord, Lord Wallace of Tankerness, have clearly been given a remit from Mr Clegg and Mr Cameron to get this Bill through at all costs. They have been told, “Put your heads down and don’t worry about the arguments. If points are made by the other side, don’t worry too much about answering them. Just get it through”. That is what they are trying to do. As I said in a previous debate, this is the Clegg project and it must be got through.

The noble Baroness, Lady Royall, asked an important Question at Question Time today about holding the Executive to account. This Chamber of Parliament should have some respect for holding the Executive to account, and the Executive should have some respect for debates and votes that take place in this Chamber. The questions that have been raised have been ignored. They are sincere and important questions, which are not being answered from the Dispatch Box. The noble and learned Lord, Lord Wallace, did a much better job of answering the questions today than he has done previously. I understand that the questions concern the technicalities of the poll. However, when I moved my amendment, I, too, dealt with the technicalities of the poll and said that there would be great confusion because of the two franchises taking place. Because of the technical argument of the noble and learned Lord, Lord Wallace, and because of his plea to me to withdraw the amendment, I will do so, on the basis that it would be much better for all of us if we struck out Clause 4.

[Lord Falconer of Thoroton]

My Lords, I earnestly ask the noble and learned Lord, Lord Wallace of Tankerness, to think again about the wording of the government amendment. I have made it clear that we would support what he wants to do if Clause 4 stands part, but I believe that the Government have not got it right and I ask them to think again. In relation to Clause 4 stand part, I will seek the opinion of the Committee, because this is the means of allowing the polls to be held together. It is right that the clause has technical aspects, but it is basically the foundation of the polls being held together.

Amendment 39 disagreed.