Scotland Bill

Lord Foulkes of Cumnock Excerpts

Thursday 26th January 2012 Lords Chamber

[The Deputy Chairman of Committees (Baroness Fookes)]

The Question is that Clause 2 stand part of the Bill.

[Lord Foulkes of Cumnock]

My Lords—

[The Deputy Chairman of Committees]

Perhaps I should explain to the noble Lord that we have to agree that Clause 2 stand part of the Bill before we reach Amendment 1.

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Moved by

[Lord Foulkes of Cumnock]

1: After Clause 2, insert the following new Clause—
“Regional vacancies: individual candidates
(1) Section 10 of the 1998 Act (regional vacancies) is amended as follows.
(2) In subsection (2) omit “the regional member was returned as an individual candidate, or”.
(3) After subsection (6) insert—
“(6A) If the regional member was returned as an individual candidate, an election will be held and the single vacancy allocated in accordance with the procedures set out in subsection (6B).
(6B) In any election held in accordance with subsection (6A)—
(a) for each registered party which has submitted a regional list, the regional figure for the purposes of paragraph (c) is the total number of regional votes given for the party in all the constituencies included in the region divided by the aggregate of one plus the number of candidates of the party presently returned as constituency members for any of those constituencies plus the number of regional seats allocated under section 8 to that party at the previous general election;(b) for each individual candidate, the regional figure for the purposes of paragraph (c) is the total number of regional votes given for him in all the constituencies included in the region;(c) the vacant regional member seat shall be allocated to the registered political party or individual candidate with the highest regional figure.””

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[Lord Foulkes of Cumnock]

Thank you, Lord Chairman. I am really grateful to you. You are almost a relative. I have great respect for your knowledge of procedure, including procedure in the other place, where you served with great distinction as Deputy Speaker. I remember very well that you kept me in order from time to time. I wish that you had the same powers here, by the way, but that is another story.

Perhaps I may also be permitted to speak to Amendment 16, which is grouped with this amendment. I am sure that one speech would be welcomed by the House, rather than if I spoke to the amendments separately.

As to Amendment 1, I believe that I have discovered a gap, a lacuna or whatever word one should use, in the electoral process. It came about in my discussions in relation to my very good friend, the independent Member in Lothian, Margo MacDonald MSP, who I have known for many years. In raising this issue, I wish her absolutely no ill at all—quite the reverse. I hope that this issue does not arise in any way. However, it occurred to me when talking to her and then looking at the legal position that if a vacancy arises for a constituency Member, there is provision for a by-election, and if there is a vacancy for a regional Member on a party list, the next person on that list automatically takes over. However, when an independent Member either resigns or sadly dies, there is no provision for filling that vacancy. There seems to be something missing from the arrangements. I am sure that everyone would agree that there ought to be some method for filling that vacancy. Having discussed it with the helpful people in the Public Bill Office, my amendment is just one way of dealing with that issue.

If a vacancy arose due to the resignation or the decease of an independent Member, new subsection (6B) proposed in my amendment would take effect. A new calculation would then be carried out by the returning officer, in the same way as the allocation of the regional seats which resulted in the election of that independent Member. It would be:

“for each registered party which has submitted a regional list, the regional figure for the purposes of paragraph (c) is the total number of regional votes given for the party in all the constituencies”—

we know that figure; that was used in the initial calculation—

“divided by the aggregate of one plus the number of candidates of the party presently returned as constituency members for any of those constituencies plus the number of regional seats allocated under section 8 to a party at the previous general election”.

So those seats are all taken into account. Proposed new paragraph (b) states:

“for each individual candidate, the regional figure for the purposes of paragraph (c) is the total number of regional votes given for him”—

it should say “or her”, but I am sure that in this case “him” includes “her”, or embraces “her” may be a better way to put it—

“in all the constituencies included in the region”.

Then, the vacant regional Member seat would be allocated to either the registered political party or the individual candidate with the highest regional figure. That seems to me, and it seemed to the Public Bill Office, the best way to deal with it.

I hope that the Minister and all Members of the House agree that the issue needs to be dealt with. The Minister has a great deal more advisers on drafting than I do. If, for any reason, this is not the best way to deal with the matter, I hope that at the very least he will say that he will come back with an amendment that deals with it more effectively.

Amendment 16 is very different and addresses a difficult issue on which I have changed my views—as have others, I think. It concerns whether persons should be permitted to stand for both a regional seat and a constituency seat at the same election. Paradoxically, the position is different in Wales from that in Scotland. I do not understand why it should be different. In Wales, the same individual is not permitted to stand for both a regional and a constituency seat.

A few years ago, before the most recent election in Scotland, that seemed to me to be a very sensible provision. I tabled an amendment in this House. Strangely enough—but these things happen in politics—the Minister who had piloted the legislation for Wales, and argued the case in Wales that a person should not be permitted to stand for both, made an entirely opposite argument in rejecting my amendment to bring Scotland into line with Wales. I have great respect for my good and noble friend Lord Evans, especially when he can argue one way one year and the other by the next; that is a necessary skill in politics. However, he did not give any explanation for it.

I hope that if the Minister does not accept my amendment today, he will at least give some logical explanation which will convince not just me but other Members of the House why it should be different in Scotland from Wales.

Arbuthnott identified the problem of dual candidacy in his report. He said that the commission found considerable public opposition to the party control of the closed list. Concerns cited were a lack of voter choice over the selection and election of regional candidates. This was perceived to undermine legitimacy. That is not dealing with precisely my point, but he went on to state that the lack of legitimacy was compounded by the problem of dual candidacy. While candidates were defeated in their constituency, many were then elected because they were included on closed party lists. It was noted that 88 per cent of successful regional MSPs had been failed constituency candidates.

[Lord Wigley]

That was what led to the change in Wales. There were three defeated candidates in one constituency alone all of whom came back on the list. But would that problem not be overcome if there was an open list rather than a closed list?

[Lord Foulkes of Cumnock]

There is scope for another amendment, I think. I have tabled enough already, so perhaps the noble Lord might think of tabling one. Everyone here from Scotland will know that list Members have a habit of choosing a seat they would like to stand for in the constituency and then concentrate on opening an office and taking up issues in that constituency. If the constituency Member cannot deal with a problem—elected Members will know that some problems are insoluble—the candidate will jump on the bandwagon and take it up.

Dual candidacy is a real problem. I have tabled a later amendment proposing a general review of the electoral system. I will discuss that in greater detail when we get to that amendment. It would be a better way of dealing with the issue in the longer term, but this would deal with it in the short term. Our electoral system was set up with the best of intentions, but even the noble Lord, Lord Steel, who was involved, now recognises that it is not fit for purpose. One of the problems is the question of dual candidacy. I hope that other Members who have experienced the problems of dual candidacy in Scotland will comment, and I certainly hope that the Minister will consider the potential change and, at the very least, explain why there should be a different system in Scotland from the one that I understand operates quite successfully in Wales.

[Lord Steel of Aikwood]

My Lords, the noble Lord has raised two very important, if minor points. We have to remember that when we were legislating on the then Scotland Bill, in which I was involved in this Chamber, the additional Member system, as it is known, was completely new to this country. There were one or two loose ends that were not quite right.

On Amendment 16, which is the noble Lord’s more substantial amendment, I entirely agree with him. As Presiding Officer I had to deal privately with complaints from constituency Members about the activities of regional Members. It is slightly worse than the noble Lord said because quite often regional Members had not just stood and been defeated, they were intending to stand again in the constituency. People were sitting in the Parliament—quite unlike this place—and had every intention of fighting a Member sitting on another Bench. That made for bad relations within the Parliament and some people—I shall name no names—exploited it disgracefully. In Wales—

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[Lord Browne of Ladyton]

My Lords, I shall speak to the amendment in this group standing in my name and that of my noble and learned friend Lord Boyd of Duncansby. I also have something to say about the amendments tabled by my noble friend Lord Foulkes.

My amendment would grant the Scottish Parliament the power to ensure that its elections are never again held on the same day as another national poll. The amendment is nearly identical to one tabled by my honourable friend Tom Greatrex, the Member for Rutherglen and Hamilton West, at the Public Bill Committee stage in the House of Commons. However, I regret that during that debate the Parliamentary Under-Secretary of State for Scotland and many others were diverted by the then controversy of the imminent application and interaction of the Fixed-term Parliaments Act. As far as I can see, although my honourable friend spoke to the amendment, it was never properly answered. Therefore, it has been repeated here in order to get an answer. If the answer allows for the avoidance of a coincidence of polls such as we saw in 2007, I will be greatly satisfied.

As noble Lords will know, the coincidence of local government and Scottish Parliament elections on 3 May 2007—and other factors—led to the rejection of 146,099 Scottish Parliament ballot papers and 38,362 local election ballot papers. It was the nadir of electoral administration in the United Kingdom, and everybody has focused on ensuring that it never happens again. It is the firm belief of this side of the House that never again should the people of Scotland be subjected to the confusion and chaos of two polls on the same day. We strongly opposed the coalition Government's decision to impose a referendum on the alternative vote system on the same day as the Holyrood election. The Minister said that it passed off without incident, but we will never know what effect that coincidence had on the way in which people behaved. There was no repeat of the dreadful circumstances of 2007, but I argue in my amendment that we should try to avoid repeating the coincidence if at all possible.

I am conscious that Clause 2 relates to the administration of the combination of polls that would be required should there be such a coincidence. I have nothing to say about that; I agree with it. We have been combining polls in those circumstances probably since 1978 or before. It makes good sense. Therefore, I am happy to let Clause 2 pass. What I am concerned about is seeking to use the device of the 1998 Act to avoid this. If the clause is properly drafted—and I hope that it is—it would grant the Scottish Parliament the flexibility to move its poll in the event of a coincidence. It would mean that there should never be any future coincidence of polls unless the Scottish Parliament decided otherwise. Most people believe that probably we cannot have that coincidence. However, despite the Fixed-term Parliaments Act and the devices of extending the period of a Parliament, in particular of the Scottish Parliament, that the coalition Government have agreed to, there is the possibility of an extraordinary election—some noble Lords on this side of the House would quite like next to see ordinary election, despite the Fixed-term Parliaments Act—coinciding with a date fixed for a Scottish Parliament election.

I got myself into some difficulties with the arithmetic of trying to work out whether coincidence is at all possible with the European Parliament elections as a consequence of the movement of the Scottish Parliament elections. It may just be possible, which is why the amendment anticipates the coincidence. I may be wrong about that, but we could in future have to use the device of extending the Scottish Parliament’s time again to avoid coincidence. That may throw up the possibility of a European Parliament coincidence. We believe this is the best way to do this. It should be a matter for the Scottish Parliament. In response to Gould, the Scottish Parliament committed to decoupling Scottish Parliamentary and local government elections, which was the real mischief that caused the problem in 2007. Similar provisions have been made to try to ensure that Scottish parliamentary and UK general elections do not follow the same cycle, as I have already said. The Calman commission recommended that, for reasons of practicality and principle, Scottish parliamentary elections should be administered at the level closest to those affected by them. We have already debated that to a degree. In a sense, it was the electorate of the Scottish Parliament who were the victims of the catastrophe that was the 2007 election. We believe that as a mature Parliament the Scottish Parliament should have the responsibility to decide whether it wants to allow this coincidence to persist, should it happen because of the rhythm of parliamentary elections or the possibility of an extraordinary election. This amendment is devised to achieve that possibility.

I turn to the amendments tabled by my noble friend Lord Foulkes of Cumnock. I congratulate my noble friend and, by extension, the noble Lord, Lord Steel of Aikwood. Each of them identified lacunae in the framework for Scottish elections, which is a phrase that I will now use, to the Scottish Parliament that could be addressed. I was not aware that there is no process for filling a vacancy for an independent member in the regional part of the system. That should not be allowed to continue. I understand that my noble friend’s approach to this is to devise a method that is very similar to the method adopted for electing regional members. It is very close to that, if not precisely the same. I urge the Minister to take this away to see whether, at some stage during the passage of this Bill, we can deal with this. His advisers are, in addition, capable of dealing with a lacuna that has been identified by the noble Lord, Lord Steel of Aikwood. I suggest that the Minister considers that too. It would genuinely be in the spirit of the appropriate approach to this legislation. I am sorry that the Calman commission did not have its attention drawn to this problem because I am sure that if it had the noble and learned Lord in another guise may well have been party to a recommendation to resolve it.

I turn to Amendment 16 which the noble Lord, Lord Steel, identifies as being the more substantial amendment. My noble friend Lord Foulkes of Cumnock is a man of extraordinary experience, not just in your Lordships' House but in the House of Commons and in the Scottish Parliament. Some of us were privileged to be at the celebration of his 70th birthday in the Gorgie Suite in his beloved Tynecastle Park on Saturday night. He knows where my allegiances lie, and I am delighted that there is at least one reason for celebration in the Gorgie Suite in Tynecastle this year because there will be precious few others. For those noble Lords who do not know what I am referring to, in an act of extraordinary generosity his family invited almost 200 people from all over the world to join the celebration of his 70th birthday. The fact that almost nobody refused the invitation no matter how far away they came from or, it seemed to me, failed to turn up is a measure of the high esteem in which he is held. I refer to this because the speeches that night celebrated a lifetime of service to politics in Scotland and to public life. It is from that background that he speaks when he rises in your Lordships' House, and he ought to be listened to carefully. However—

[Lord Foulkes of Cumnock]

However!

[Lord Browne of Ladyton]

However, I regret that in this case I cannot support my noble friend’s amendment. If there is a mischief here, it seems to me that the solution lies in the hands of the political parties. We should not be legislating for this and I am surprised that we have in fact legislated in Wales, but if the Welsh people wanted that, that is fine.

For many years, the Labour Party had a voluntary prohibition on this. We had a rule that you could not stand for both the lists and the constituencies. We departed from that at the last election to the Scottish Parliament and because of that Sarah Boyack is a Member of the Scottish Parliament. That seems to be a good result; apart from anything else, it may be a reason for maintaining the status quo.

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[Lord Wallace of Tankerness]

My Lords, in introducing his amendment, the noble Lord, Lord Foulkes, has given us an opportunity to look at a number of the issues that have arisen with regard to the operation of the electoral system. As my noble friend Lord Steel said, when we were legislating in 1998 it was not really possible to foresee all the implications and consequences of it. Therefore, we have had a useful opportunity to highlight a number of the issues and concerns that have arisen.

As the noble Lord, Lord Foulkes, says, Amendment 1 identifies a lacuna, which, to be fair, I am not sure has been highlighted very much in the past. My noble friend Lord Steel pointed out a variation on that with regard to the role of the Presiding Officer, who gets elected on a list basis as opposed to a constituency basis. Perhaps I may add that Mr George Reid did not stand again so the issue did not arise, whereas Mr Alex Fergusson always indicated that he would seek to stand again as a Conservative. No doubt he would have had to win the nomination of the Galloway Conservatives. It may also be said that it would have been open to my noble friend Lord Steel to have sought again to put his name forward in the Liberal Democrat list for Lothian. Although I did not live in Lothian, had I done so I certainly would have voted for him.

The noble Lord, Lord Foulkes, has raised an important point. No doubt with some work he has found an interesting way to address it. As he properly says, currently a seat vacated by an individual candidate who was returned as a regional Member remains vacant until the next general election. The noble Lord proposes that a poll is held across the whole region to select a new Member. Calculations would ensue upon that—he set that out very clearly and I do not propose to repeat it—to identify who would succeed.

The noble Lord is right to point out that a regional seat vacancy has not yet been caused by an independent Member vacating one. I share his view. I bear no ill will towards Mrs Margo MacDonald for being the only independent Member. Not only do I bear her no ill will but I think that everyone who knows her would take the opportunity to wish her well. My experience is that she has always made a very robust and independent contribution to the deliberations of the Scottish Parliament, and long may that continue, although we do not always agree with her.

We should remember that voters continue to be represented by their constituency MSP and several regional MSPs. It is an important issue, which, given that it is novel, I would wish to look at. If we did anything, it would be important that it commanded consensus among all the parties because it is an important part of our electoral system. To commit from the Dispatch Box without having taken proper soundings among all the parties would be inappropriate, but I hope that we can get an opportunity to take soundings to see whether this gap can be plugged, and plugged suitably to take account of the position of a Presiding Officer as well.

The other amendment moved by the noble Lord, Lord Foulkes, would allow candidates to stand for both constituency and regional polls, and both he and my noble friend Lord Steel indicated some discontent from their own experiences with the current system. The noble Lords, Lord Foulkes and Lord Browne, quoted from the Arbuthnott commission, which stated that it was,

“not convinced that there is any evidence to support the claims made regarding these perceived problems. There is no survey evidence to suggest that dual candidacy is an issue for voters, or a disincentive to their participation in the political process. Few of our consultation responses raised dual candidacy as an issue, nor was it raised spontaneously in our focus groups”.

I am certainly aware from my time in the Scottish Parliament that colleagues representing Orkney would find that not many regional list candidates would bother to get that far, although occasionally it was quite useful to have regional-list MSPs in order to pass on some of the more difficult cases. If a constituent was clearly not satisfied with what you had done on their behalf, and you would be surprised if anyone would be able to satisfy them, it was always useful to have another seven MSPs with whom you could share the burden.

That said, this would be a significant change to the system for electing Members of the Scottish Parliament. The question was raised with regard to Wales—my noble friend Lady Randerson and the noble Lord, Lord Wigley, are in their places. My understanding is that objections were raised by three of the four main political parties in Wales when this was brought forward. The noble Lord, Lord Foulkes, asked me to explain why this position arises. In our debate before we went into Committee I was asked at one stage to explain the policy of the Scottish National Party, and now I am being asked to defend the position that was brought about by the previous Labour Administration, of which the noble Lord, Lord Browne, was a most distinguished member. It actually arose from a proposal in the White Paper, Better Governance for Wales, published in June 2005. It is fair to say that there is no reason why the position in Scotland should be the same as that in Wales. There is an automatic assumption that the systems are always going to be the same, but I think it is reasonable to say that there can be variations tailored to suit particular requirements in different parts of the United Kingdom. I do not think it follows that because Wales has not gone down the route, Scotland should not do so either.

The noble Lord, Lord Foulkes, indicated that a later amendment of his would propose a general review of the electoral system. He will be aware that the Government have stated their intention to consider what has been said about a review of the electoral system in the reports of both the Calman commission and the Arbuthnott commission. There is obviously some support for this in some quarters, but it would be possible to take forward such a review only with the full support of the Scottish Parliament as well. The Committee will be aware that quite a number of consultations are under way. The most crucial one at the moment is on the referendum, and in a moment I will deal with the amendment spoken to by the noble Lord, Lord Browne, on the coincidence of election dates. The Government are committed to looking at the issue of fixed-term Parliaments and whether the Scottish Parliament should move to fixed terms. That will generate another consultation. Perhaps this is not the most appropriate and propitious time to start a review of the electoral system, although I repeat that the Government have indicated their intention to consider a response to both Calman and Arbuthnott on that point.

The amendment moved by the noble Lord, Lord Browne, seeks to allow the Scottish Parliament to move the date for parliamentary elections by up to 12 months either way when it falls in the same year as either an early UK general election or a European Parliament general election, so long as the new date is not within six months of either of those elections. He mentioned that when this was debated in the House of Commons, there was more of a focus on the then quite likely coincidence of a Scottish and a Westminster election in 2015. I moved an amendment during the passage of the Fixed-term Parliaments Bill through your Lordships’ House that changed the date of the next Scottish election so that such a clash would not occur. The Government are already committed to carrying out a detailed assessment of the implications of the two elections coinciding on the same day and to consult on the possibility of moving permanently to five-year terms for the Scottish Parliament. We will make a more detailed announcement of our plans in due course.

If any future consultation is in favour of moving the Scottish Parliament to five-year terms, that would solve the problem of a clash with both scheduled UK elections and European parliamentary elections, as all three will then be on five-year cycles scheduled for different years. That said, there will always be a risk that an early UK general election could reintroduce a clash of dates due to the resetting of the parliamentary timetable. However, if there are concerns about that happening, I hope the noble Lord will agree that that would be an important issue to raise in the context of a consultation on moving to a five-year fixed term for the Scottish Parliament, as we intend to do.

We are committed to considering a change to the length of the term of the Scottish Parliament. It is an appropriate concern for the noble Lord to have raised, but I hope he would agree that this Bill is perhaps not the place to deal with it. However, it is germane to the consultation that is about to take place. That would be the appropriate place in which to consider it. In these circumstances, I hope that noble Lords will not press their amendments.

[Lord Foulkes of Cumnock]

My Lords, as always, that was a really helpful reply from the Minister. We are now getting used to helpful replies from the noble and learned Lord, Lord Wallace, for which I am grateful.

I was hoping that he would answer the question which the noble Lord, Lord Evans of Temple Guiting, did not. I was sure that he would have had exactly the same brief from the excellent civil servants the noble Lord, Lord Evans, had, and that it would not be too difficult for him. As it turned out, it was not, so I am grateful to him for explaining it.

As I said in my introduction to the amendment, I am a little equivocal about it anyway. Perhaps I may return the flattery that I received from my noble friend Lord Browne of Ladyton, whom I thank for his kindness. Now one or two people will ask me why they were not invited to the party, by the way; that is the only problem that I have. My noble friend explained extremely well why we should leave it to the political parties and wait for the promised wider review of the electoral system. I understand also that my right honourable friend Mr Peter Hain is suggesting that Wales should move back to first past the post elections for the Welsh Assembly, which seems like a wonderful idea for those of us who are Neanderthal first past the post supporters—so there is even discussion there. Therefore, I shall not press Amendment 16.

I do feel strongly about Amendment 1, because this matter should be sorted out. I am grateful to the Minister for his reply. As I understood it, he said that he would take the matter away and consult other parties, and that if there was some consensus he would come forward with an amendment on Report. He is nodding, so I am not jumping to conclusions. On that basis, I am quite happy to withdraw my amendment.

Amendment 1 withdrawn.

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Moved by

[Lord Foulkes of Cumnock]

6: After Clause 5, insert the following new Clause—
“Sitting calendar
(1) Schedule 3 to the 1998 Act (Standing orders—further provision) is amended as follows.
(2) After paragraph 7 insert—
“Parliamentary calendar8. The standing orders may include provision for ensuring that the Parliament shall—
(a) sit on at least 30 weeks in each calendar year,(b) meet on at least three days in each week that it sits, and(c) not adjourn for a period of more than 60 consecutive days.””

[Lord Foulkes of Cumnock]

My Lords, it might be said that by moving the amendment—and even by discussing it, let alone coming to any decision on it—Westminster is interfering in the work of the Scottish Parliament. However, I have raised the issue because it is a dissolved Parliament and, ultimately, until such time as there is an independent Scotland—heaven or the electorate forbid—it is the responsibility of this sovereign Parliament.

I raise the issue also because for four years I served, along with the noble Lord, Lord Stephen, and others, as a Member of the Scottish Parliament. I came across a huge number of people who were absolutely astonished when they found out that the Scottish Parliament sat for only one and a half days a week in plenary. Members of the Scottish Parliament are paid a substantial amount of money—something like 87.5 per cent of the salary of a Member of this Parliament—and it is seen as a full-time job. Of course, just as MPs have responsibilities in their constituencies, MSPs have constituency responsibilities, too—at least, constituency MSPs do. Committees also meet on a Tuesday and a Wednesday morning. Even so, it is difficult to explain that the Scottish Parliament sits for only one and a half days in the weeks that it is sitting.

As a result of that, some strange things happen. It is amazing. There are other former Members of the Scottish Parliament here, including the noble Lord, Lord Selkirk, who can give their experiences in relation to this. In almost every debate in which I took part in the Scottish Parliament, the speeches were limited to four minutes. Occasionally, we get time limits here but it is ridiculous to expect people to be able to put forward a coherent argument on a major issue of education, the health service or whatever they are dealing with in four minutes.

Compared with the House of Commons, there are also relatively few opportunities for Statements and Urgent Questions. Recently, under Speaker Bercow in the House of Commons, there have been lots of Urgent Questions. In the time that I was in Holyrood, I cannot remember more than one or perhaps two Urgent Questions. There was not the time. It was difficult to fit anything new or additional into the programme and timetable of the Scottish Parliament.

I find the Report stages of Bills there quite astonishing. These are important Bills dealing, as I say, with important issues such as education, social work, local government reform or the health service. They are rushed through. Sometimes, on an amendment being dealt with on Report, people are allowed to argue a case for only 30 seconds. It is ludicrous that they should be squeezed into that length of time.

Again, Question Time, partly but not completely because of the time constraints, becomes a bit of a farce and a very predictable occasion. I could almost write the script for every First Minister’s Questions, with who will come in and how many of them there will be. It does not have the spontaneity of—

[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord for giving way and sorry that I was not here for the start of his speech; I had to go to another meeting. Could he help me, as I have not had his experience in the Scottish Parliament? Is there some restriction that prevents it from sitting for more than one and a half days a week? Is that not a matter for the Scottish Parliament to decide itself?

[Lord Foulkes of Cumnock]

As always, the noble Lord is perceptive. I was going to come on to say that but will say it now. I put down the amendment some time ago and am now very pleased to hear that, since then, the Scottish Parliament has started talking about sitting at greater length. The purpose of the amendment was to try and get a debate on this, not just here but in the Scottish Parliament. I am glad that it has achieved that. After this debate finishes—if other noble Lords want to participate—were the Minister to give some indication as to what is happening in the Scottish Parliament in relation to its sitting times, more time for debating these issues and Report stages allowing fuller consideration, I would of course be satisfied and willing to withdraw the amendment. I am very glad I raised this as it is long overdue. If it is now being dealt with, no one will be happier than me.

[Lord Forsyth of Drumlean]

My Lords, I confessed that I knew nothing about it, but it seems a very sensible proposal. I have in the past suggested that because the Scottish Parliament sits only one and a half days a week, a solution to the West Lothian question would be that all Scottish Members of Parliament should sit in the Scottish Parliament for one and a half days a week and on those one and a half days the House of Commons could discuss those matters not related to devolved issues. This has not proved very popular with Members of the Scottish Parliament, for reasons that I cannot imagine. So in following the advice of the noble Lord, Lord Foulkes, they might protect themselves from being endangered by people like me, who might suggest that there were synergies in combining the roles of a Member of the House of Commons with a Member of the Scottish Parliament. I am sure that the Scottish Parliament will show considerable gratitude to the noble Lord in drawing this matter to public attention if, indeed, it has already got that Parliament rethinking its sitting days.

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[Lord Wallace of Tankerness]

My Lords, the amendment, which was tabled by the noble Lord, Lord Foulkes, would enable the Scottish Parliament’s standing orders to make provision to ensure that the Parliament would have to sit on at least 30 weeks in each calendar year; that it met on at least three days in each week that it sits; and that it does not adjourn for a period of more than 60 consecutive days. In moving the amendment the noble Lord certainly described some frustrations which I can readily identify with, although we never actually served at the same time in the Scottish Parliament. Although it does not relate to a restriction on back-bench time, I remember one Conservative opposition day when Mr Murdo Fraser was the Conservative spokesman on the economy and enterprise and I was the Enterprise Minister, and the Deputy Presiding Officer announced: “A Conservative debate on the future of Scotland's economy. Mr Murdo Fraser, you have seven minutes”. That did not really seem to give justice to the issue in hand.

That said, when dealing with the internal arrangements of the Scottish Parliament, it is important that we remember the words in the White Paper which the previous Government published when Mr Donald Dewar was Secretary of State for Scotland, in 1997. The White Paper said:

“The Government intend the minimum of legislation to establish the Scottish Parliament; and wherever possible to leave the Scottish Parliament to decide for itself what its procedures should be”.

This Government believe that that statement holds as true today as it did in 1997. The Government do not believe that it is appropriate for the United Kingdom Parliament to place restrictions on the freedom of the Scottish Parliament to administer its own affairs. It is now embedded within our UK constitutional arrangements, and our view is that the Scottish Parliament is capable of making its own changes to procedures as it sees fit.

As the noble Lord, Lord Foulkes, mentioned, on 21 December the Standards, Procedures and Public Appointments Committee of the Scottish Parliament published the phase 1 report of its inquiry into the reform of parliamentary business, which is appropriately entitled Remodelling the Parliamentary Week. I do not know whether that happened as a result of or in spite of this amendment, but as the noble Lord indicated when moving the amendment, it certainly was timely. The committee undertook its inquiry into parliamentary business last September in order to review the Parliament’s procedures and recommend areas for improvement and change. As I indicated, it is a phase 1 report. The aim of the inquiry is to give the Scottish Parliament greater scrutiny and responsiveness to emerging issues of importance to the people of Scotland.

The report makes a number of recommendations. My understanding is that they will soon be debated in the Scottish Parliament and, if agreed, implemented after the Easter Recess. Recommendation 1 states,

“that the sitting patterns of the Parliament should be changed to allow committee meetings to take place on Tuesday, Wednesday and Thursday mornings with Chamber business on those afternoons”.

This would mean that the Parliament will sit for three days a week when it is sitting, which would meet part of what the noble Lord’s amendment aims to do. The report does not make any recommendations on the other two parts of the noble Lord’s amendment—to ensure that the Parliament sits on at least 30 weeks of the calendar year, and not to adjourn for a period of more than 60 consecutive days. However, the report concluded that,

“given the need to protect the”—

respect—

“between the Chamber and committee business, and to protect time for engagement with civic Scotland, the amount of time allocated to each of these priorities at present is broadly correct”.

I have however noted that as the inquiry evolved, it also looked at how the likely addition of new powers and responsibilities proposed in this Bill would need to be taken into account, as further timetabling commitments will need to be made to scrutinise the use of these new powers for the Scottish Government and Parliament. As my noble friend Lord Forsyth indicated in a question, where does the responsibility lie? It is for the standing orders of the Scottish Parliament.

My recollection, though, is that there is also a considerable amount of flexibility. When I was a Member of the Scottish Parliament—more recent Members can correct me—although the normal starting time on a Wednesday, with time for reflection, was 2.30 pm, noble Lords will have realised that yesterday the Parliament managed to sit at 1.35 pm in order for the First Minister to make his statement launching his consultation document, no doubt so that he could then hot-foot it to his appointment with the world’s press at 3 pm in the Great Hall at Edinburgh Castle. I recall other occasions—for example, when it was clear that stage three of the Bill was going to take much longer—when there was flexibility to sit earlier or later.

My noble friend Lord Selkirk asked about the recommendation from the Calman commission regarding the separation of time to allow more time at stage three if new amendments come up, which would engage more stakeholders. I indicate to him that that is obviously a matter for the Scottish Parliament, but I will write to him and other Members of the Committee who are participating in our deliberations to give our understanding of the up-to-date position with regard to the Scottish Parliament’s response to that recommendation.

The Scottish Parliament, now 12 or almost 13 years old, is capable of reviewing its own processes, but we are showing our willingness to look at this issue too. I hope that in those circumstances the noble Lord will feel that the amendment is unnecessary and withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, what surprises me is how the Scottish Parliament in its procedures seems more rigid and in its lack of flexibility seems more sclerotic than even this Chamber, let alone the House of Commons. We have already heard examples from the noble Lord, Lord Stephen, about having less than four minutes to contribute to a debate, which are true. We have heard from the noble Lord, Lord Selkirk, about the recommendations regarding later stages being rushed and civic society not having an opportunity to participate fully, and I have appreciated that as well. The Minister himself said that getting everything in when you are given only seven minutes to talk about the economy is a formidable task.

Under the proposals, all that will happen is that they will meet for three days but only for half a day each, so it is still really effectively only a day and a half. That is not a huge amount extra. Of course it is up to the Scottish Parliament, and I am going to withdraw the amendment on that basis, but, speaking as a member of the public in Scotland rather than a nominated Member here, I would expect that the Scottish Parliament might sit rather more than that and spend rather more time discussing some of the major issues that it has to deal with.

Perhaps we should not be saying this because we are non-elected and they all think of us as Neanderthals. I have been around for an awfully long time; I have just had a birthday, as someone diplomatically pointed out earlier. Perhaps we should not be lecturing the Scottish Parliament, but it is just a wee bit strange that it is not lengthening the times of its plenary sessions a little. I shall leave it at that and withdraw.

[Lord Maclennan of Rogart]

Before the noble Lord withdraws his amendment, could he inform us whether there is a standing committee in the Scottish Parliament that keeps these matters under review, or is it the case that this is just an ad hoc inquiry?

[Lord Foulkes of Cumnock]

I think there is a procedures committee that deals with this question in a review.

There are people who have held more distinguished positions than I did in the Scottish Parliament as Deputy First Minister, acting First Minister and Presiding Officer and who have been around for a long time, but I got the impression that the Scottish Parliament was very set in its ways, and for a new Parliament that is very strange. I tried gently to suggest some innovations, when I was a Member and I had some right to do so, and it was very reluctant to accept any of them. It is ironical that we have had more changes, improvements and developments of our procedures in the House of Lords during my time here than I saw in all my time in the Scottish Parliament. I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

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Moved by

[Lord Foulkes of Cumnock]

7: After Clause 6, insert the following new Clause—
“Discussion of reserved matters
(1) Schedule 3 to the 1998 Act (Standing orders—further provision) is amended as follows.
(2) After paragraph 7 insert—
“Reserved matters8. The standing orders shall include provision for ensuring that the Parliament shall not discuss items in Schedule 5 (reserved matters) except on a motion to make representations to the United Kingdom Government.””

[Lord Selkirk of Douglas]

My Lords, may I speak to—oh! I am sorry.

[Lord Foulkes of Cumnock]

Members will be getting fed up with my voice by now. I am glad that I withdrew the previous amendment and did not move Amendments 4 and 5. I tabled those amendments but I could have put down dozens more. There is a whole range of issues that we could have discussed. If we had wanted to cause trouble—heaven forbid that I should cause trouble here—I could have tabled dozens of amendments and delayed us. The fact that we are getting though the Bill relatively rapidly shows the good will of not just the Front Bench but the Back Benches on this side towards the coalition Government. Whether they deserve it is another matter, but they are getting it.

I come now to the discussion of reserved matters, which relates in some ways to the previous amendment. In my time in the Scottish Parliament—I think this will apply to other Members here who were Members of the Scottish Parliament—it was very frustrating that the SNP in particular would use up the limited time available, including government time, for discussion of reserved matters. These included foreign affairs and defence; they went on and on about these areas. It is understandable that they should discuss them where they impinge on some of the Scottish Parliament’s responsibilities, but it worried me that it restricted the time for discussion of very important matters.

We have devolved to the Scottish Parliament some of the major areas that affect the lives of people in Scotland, such as all aspects of education. However, there were no really detailed debates on it. The right reverend Prelate the Bishop of Chester would be astonished if he came to the Scottish Parliament and saw how little time it spends on discussing the details and development of education in the forum of the plenary sessions. Then there is the development of the health service, with telemedicine and all the new developments that are taking place; and social work and the links between it and education and housing. There are many issues that the Scottish Parliament should be discussing, but it never seems to get around to doing so. These are vitally important issues.

This is a related issue but it is slightly different. I also get the feeling that, as the SNP has moved into the ascendancy, first as a minority and now as a majority Government, it seeks to operate almost as a de facto if not de jure independent Parliament. It wants to take on more responsibilities and pretend or imagine that it is dealing with all these issues. I had occasion to raise this with Sir Gus O’Donnell, now the noble Lord, Lord O’Donnell, in a question about the Permanent Secretaries—first Sir John Elvidge and, more recently, Sir Peter Housden, who has gone native since he moved. He is from Shropshire originally, a lovely county of England, as I know only too well. They seem to be advising the Scottish Executive on how to move towards independence. They seem to be giving them all the advice, guidance and detail that they need and, in Sir Peter’s case, almost encouragement to move towards independence. I hope that Sir Jeremy Heywood—he has a more pragmatic and sensible view on this than Sir Gus O’Donnell, but perhaps I should be careful about saying that—will look at things in a more pragmatic and sensible way and remind Sir Peter Housden that he is still a member of the UK Civil Service and still owes some loyalty to the Crown and the United Kingdom Parliament although he has been seconded to the Scottish Parliament and should not be dealing with these matters.

It is fair enough for the Scottish Parliament to consider reserved matters when it wishes to make representations on them to the Westminster Parliament, particularly to the House of Commons. However, for it to have debates on nuclear weapons, defence policy, foreign affairs issues, reserved aspects of welfare or on major economic issues which are still the responsibility of this Parliament and the UK Government, seems to me not just wrong in principle but a waste of the Scottish Parliament’s valuable time. I hope that we will send a message to it that—

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[Lord Foulkes of Cumnock]

It is certainly not intended that the amendment should do that. It says,

“except on a motion to make representations to the United Kingdom Government”.

I should have thought that the areas that the noble Lord mentioned are ones on which the Scottish Parliament might wish to make representations to the United Kingdom Government. However, my noble friend may have a point in that the amendment’s wording is not as exact as it could be. There are areas where the Scottish Parliament contributes in this regard. For instance, when I was a development Minister, I encouraged it to take an interest in development matters, just as local authorities and private enterprise do. However, it is a different matter when the Scottish Parliament tries to deliberate on policy in relation to these issues.

This is a difficult area and the noble Lord, Lord Wigley, is right to point to a difficulty. Nevertheless, this Parliament is very careful not to talk about areas that are devolved to the Scottish Parliament. We are sensitive—perhaps sometimes oversensitive—about not dealing with those areas. As I think my noble friend Lord Sewel said in an earlier debate, we still have the right to legislate on any of them. If we wanted to, we could override the decisions of the Scottish Parliament and tell it what to do. However, we do not do that. We are very sensitive and very cautious, perhaps even oversensitive, as I say, but the Scottish Parliament does not reciprocate that sensitivity and caution as regards trampling on reserved areas.

The noble Lord, Lord Steel, will recall that he made the original ruling about the areas that could be discussed. That gave the Scottish Parliament an opportunity to discuss certain areas which it has subsequently expanded and exploited to a degree which was not intended at the time that the noble Lord made that ruling when he was Presiding Officer. I hope that we can send a message to the Scottish Parliament that it should respect our reserved areas just as we respect the devolved areas.

[Baroness Liddell of Coatdyke]

Perhaps I may make a brief intervention in support of my noble friend’s amendment. I, too, should declare an interest. I was at the famous party also, and if I had thought that visiting a football park could be so much fun, I might have gone before now.

I support the amendment because I am particularly exercised about the extent to which the reserved area of foreign affairs is often affected by debate in the Scottish Parliament, and at some of the attitudes that are adopted by Members of the Scottish Parliament as they go abroad. In particular, in the English-speaking Commonwealth, where BBC News, BBC Parliament and Sky are available, the interlocutors among us who have been practitioners in foreign affairs are perhaps watching debates in the Scottish Parliament or are picking up stories on foreign affairs that come out of it that can make life difficult for our people who are involved in sometimes sensitive negotiations. Usually, such debates are set against a background of imperfect knowledge as to why issues are being raised and discussed.

My noble friend Lord Foulkes made a valid point when he said that we go to great lengths in this Parliament to ensure that we do not trespass on devolved affairs. Since the beginning of the Scottish Parliament, there has been a laxness of attitude to straying into reserved areas. I am not suggesting that Members of the Scottish Parliament, be they in the Scottish Government or otherwise, should be grounded, but I ask your Lordships to take into account that one of the conventions of this Parliament is that when you travel abroad you do not criticise your own Government, even if it is a Government of a different colour to the party that you are a member of. That can increasingly be undermined by interventions from people who do not owe any loyalty to the concept of the foreign policy of the United Kingdom.

This may seem an arcane part of the debate and, without doubt, it will be portrayed as carping about the magnificent foreign policy of the Scottish Parliament, but there are men and women around the world today doing very difficult jobs in sometimes difficult circumstances. They are not helped by voices off.

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[Lord Wallace of Tankerness]

My noble friend has tabled an amendment on this issue that we will come to. I suspect that the accounting officer must have responsibility in these matters. However, as I sought to indicate, it would be very perverse if the United Kingdom Government invited a response and a consultation and then said that it was beyond the Scottish Parliament’s competence to engage in it. My noble friend raises an important point, and we will come to his amendment, which will be a proper opportunity to look at that in more detail.

As I indicated, in the case made by the noble and learned Lord, Lord Boyd, it is very difficult to draw the line. It does not cure the problem, but it is not beyond the wit to come up with the appropriate Motion to put before the Scottish Parliament. My noble friend Lord Forsyth and the noble and learned Lord, Lord Boyd, made the point that the genie is out of the bottle. Indeed, it was intended as long ago as the original White Paper that there should be an opportunity to debate these reserved matters. In these circumstances, I invite the noble Lord, Lord Foulkes, to withdraw his amendment.

[Lord Foulkes of Cumnock]

I have found this debate very helpful, although it pointed out that my amendment is less than perfect. A lot of interesting issues have been raised, not least that raised most recently by the noble Duke, the Duke of Montrose, and picked up by the noble Lord, Lord Forsyth, because according to this consultative document written submissions have to go to the Elections and Constitutional Development Division at Victoria Quay. I remember asking a number of questions and, no doubt, some MSPs are still asking questions about how many civil servants there are in these divisions dealing with breaking up the United Kingdom. They are spending taxpayers’ money to employ officials to move Alex Salmond’s dream a bit closer. The noble Lord, Lord Forsyth, asked a good question, which needs to be pursued, about how much money is being spent on that and whether it is ultra vires. That is, no doubt, something that we will be taking up on another occasion. It is a very serious matter. It is not just a question of printing the document; it is a question of the civil servants who could be better employed dealing with education, which is pretty ropey and not being dealt with in a perfect manner—let us put it that way—in Scotland at the moment, or with the health service, which is under pressure in Scotland. It would be better to use that money to employ nurses, teachers and policemen rather than these civil servants. I hope the noble Duke, the Duke of Montrose, and the noble Lord, Lord Forsyth, will pursue this important matter.

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[Lord Wallace of Tankerness]

To take the first part of the question, about the law officers, it is part of the Ministerial Code. We have tried to be very careful with regard to the referendum matter, although we may not have managed it all the time, to say, “This is the view of the United Kingdom Government”, because the Ministerial Code says that it may not be disclosed whether or not law officers have been asked for advice, let alone what the advice may be. The Ministerial Code is written in almost, but not quite, identical terms for the Scottish Government, and I would therefore certainly not ask the Scottish Government to produce their legal advice. If they refused to produce it or even to disclose whether they had sought it, that would be totally consistent with the Ministerial Code. However, it is perfectly legitimate to challenge them, if they assert something, about the basis on which they assert it, without asking them if there has been legal advice.

[Lord Foulkes of Cumnock]

I always wonder what is meant by legal advice—legal opinion from a counsel, or whatever. Let us take an example. Let us say that the Lord Advocate went to Glasgow University and gave a learned lecture about the law on the legality of a referendum. Is that legal advice?

[Lord Wallace of Tankerness]

A public lecture is clearly not the same as advice that counsel would give to his or her client. This is probably not the place to debate the pros and cons of the Ministerial Code on legal advice, but legal advice is an opinion of the law officers given on a particular issue to a client department.

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[Lord Foulkes of Cumnock]

Is it not reasonable to assume that if a law officer states a legal opinion in the course of a lecture at Glasgow University, that might just be the same as the legal advice that he gives a Minister in a Government?

[Lord Wallace of Tankerness]

I express the view of the United Kingdom Government; I shall leave it at that. There is good reason why the convention is there, and it has been quite rigidly adhered to by law officers of all Administrations, in Scotland and the United Kingdom generally.

The noble Lord, Lord Stephen, also asked about the legal advice given to a Presiding Officer. The Ministerial Code arrangements for that are clearly not the same. Off the top of my head, I could not say whether that legal advice would be made available or not, or what the response would be if someone wanted to FoI it. It might well be that it is advice given by a lawyer and that there are categories of exemptions for legal advice. It might be a matter that would end up in the courts—I am not going to express a view on it.

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Moved by

[Lord Foulkes of Cumnock]

17: After Clause 9, insert the following new Clause—
“Review of electoral system for the Scottish Parliament
(1) The Secretary of State must make arrangements—
(a) for a committee to carry out a review of the electoral system used for elections to the Scottish Parliament and to make recommendations about that, and(b) for the publication of the committee’s findings and recommendations.(2) Arrangements for the establishment of the committee under subsection (1) are to be made no later than 1 May 2012, and the committee is to report no later than 31 December 2012.”

[Lord Foulkes of Cumnock]

My Lords, I must say that I found the previous debate fascinating. I do not think that I understood more than half a dozen words of it but I am sure that every lawyer present—and there are quite a few of those—understood it all. It was enlivened only at the end by the anecdote of the noble Lord, Lord Steel.

[The Duke of Montrose]

Move your amendment.

[Lord Foulkes of Cumnock]

I am very happy to do as the noble Duke, the Duke of Montrose, instructs me. After all, one of his ancestors was beaten by Cromwell. Is that right?

[The Duke of Montrose]

He was never beaten by Cromwell.

[Lord Foulkes of Cumnock]

My history is wrong; I shall have to check with the noble Duke afterwards.

The amendment would set up a general review of the electoral system for the Scottish Parliament, and it is about time that we had such a review. As was said in one of our earlier debates, the additional member system was very new to Scotland—and to the United Kingdom. It is similar to the German system but was very new to us. It was devised through multiparty discussions—not all parties were involved—as to what might be a suitable proportional system to ensure that no party would have an overall majority, an issue to which we will come back; and to ensure that all parties were properly represented in the Scottish Parliament.

However, because the system was new, my recollection is that it was recommended that there should be a review after two Sessions of the Scottish Parliament. We are now into the fifth Session and there has been no review. It is about time that we had one and, as I understand it, it is our responsibility to suggest, if not actually to set up, a review. It was recommended by the Arbuthnott committee, and I shall come back to that in a moment. If I may mention him, even one of the architects of the additional member system or at least one of the people involved in the discussions that led up to it, the noble Lord, Lord Steel—I blame other people for the system—has been reported as saying he believes that it is no longer fit for purpose. I have spoken to a number of people who have come to the same conclusion.

Let me deal with one or two of the problems. First, we have two types of MSPs—list Members and constituency Members. When the system was set up, the division between them was much greater than now. There has been some attempt to bring them together and to reduce the differences. Nevertheless, it is clear that constituency Members have the primary constituency responsibility. Regional Members, who have responsibility for a whole region, in the past few Parliaments have been increasingly requested and required to take on responsibility for individual cases referred to them. What is of course happening is that members of the public go first to their constituency Member who takes the matter up with officials and resolves the problems, if possible. However, some problems do not have a resolution. Those of us who have been Members of Parliament will know that problems can be intractable. However, the individual constituent does not necessarily think that and then says he will go over the head of the constituency Member to the regional Member. Later on, if the regional Member cannot deal with the problem, it comes to the MP. No doubt, if a senate were to replace this place, and if the MP could not deal with the problem, the constituent would go to the senator. That is a debate for another day.

There is a division between the types of MSPs. They have different workloads; there is overlap, competition and confusion between them. We heard earlier that some regional MSPs target constituencies. They set up offices and work in constituencies with a view to fighting the sitting MSP at the next election. The system seems almost designed for them to do that. Having two types of Members creates a problem.

Secondly, there is confusion in voting. Members will understand that and will have seen it happening. When you explain to members of the public that they have two votes, they find it difficult to understand the purpose of those two votes. It is difficult to explain their purpose. We in the Labour Party—those in other parties do exactly the same—say, “First vote for the constituency member and then vote for the party”, but it is inevitable that someone will say, “Okay, I’ll give my first vote to this Labour constituency member, but I like the Greens”, or the Liberal Democrats, “as well, so I will give them my second preference”. Sometimes there is confusion that it is a preference vote, which of course it is not; it is a different voting system.

Arbuthnott stated in his report:

“The Commission found that there were problems with the public understanding of the electoral system”.

The report states that especially confusing was the regional vote, which the public believed was a second preference vote. Survey data indicated that a significant proportion of people did not understand how seats would be distributed within the Scottish Parliament.

I now want to tell you briefly about my experience. I was asked by the noble Lord, Lord McConnell, when he was First Minister, whether I would help to lead the Labour campaign in the Lothian region. I agreed to do that. He said: “George, let's put you on the list”. I put my name into the hat and we had a ballot among Labour members in Lothian and, lo and behold, I came top of the list, so I was number one, on the understanding that never before had any Labour member been elected for Lothian. I told my wife that there was no way I would be elected. I told the Chief Whip here, because I was a Member of this House, “Don't worry, I will be here every day because there is no way I will be elected”.

I campaigned for the constituency members of the marginal seats to ensure that I was not elected. Imagine that. You are a candidate and you campaign for the constituencies just to ensure that you do not get elected. I did all my campaign work in two marginal seats: Central Edinburgh and Linlithgow, which we held. Unfortunately, we lost two seats that we thought were safe. I thought, “That doesn’t matter, the Greens always get two in Edinburgh, there is still no way that I will be elected”. However, the Greens did not do so well in that election. I was at the count walking up and down. The husband of Sheila Gilmore, who is now Member of Parliament for East Edinburgh, Brian Gilmore, who is head of the statistics department at Edinburgh University, came up to me and said, “George you’re going to get elected”. I said, “No, no, I’ve told my wife. I’ve told the Chief Whip”. Brian is the best statistician I know. I phoned Liz and said “There is a chance that I may be elected”. She said, “What?” I said, “I’ll phone you back later”. An hour later, she had had the chance to adjust to all that, and I left Steve Bassam until the following week. I was elected because of the system. I had not campaigned for myself. I had spent not one penny on the election. I produced no election leaflets whatever. I held no meetings at all for that election. It was astonishing, but there I was, a Member of the Scottish Parliament.

[Lord Steel of Aikwood]

That was your mistake: if you had done, you might not have got elected.

[Lord Foulkes of Cumnock]

I treat the noble Lord, Lord Steel, as a friend of mine; in fact, he was at the party as well. He will not be coming to my 80th, that is for sure—no, that is a very good point.

It illustrates the absurdity of it all. When I was a Member of Parliament for Carrick, Cumnock and Doon Valley, which we considered a relatively safe seat, I had meetings all over the place. I produced literature and spent almost the limit to make sure that I got elected. In 1997, I ended up with the largest majority in Scotland as a result. We worked hard to get elected. It seems absurd, having worked hard year in, year out to get elected as a Member of Parliament in that constituency from 1979 to 2005, I just floated in easily to the Scottish Parliament. It is a strange system.

[Lord Stephen]

Not having been invited to the birthday party, can I, perhaps unfairly, point out that the voting system was to be proportional, which was agreed through the constitutional convention? The Liberal Democrats, as always, proposed a fair and appropriate system—the single transferrable vote in multimember constituencies. My clear recollection is that the Labour Party, in conceding a proportional system of election, was prepared to agree to anything except the system that was being proposed by the Liberal Democrats. Therefore, it was the Labour Party that devised the system that we now have in the Scottish Parliament. I would welcome it if the noble Lord, Lord Foulkes, and other members of the Labour Party were now suggesting a fairer system of proportional representation. Perhaps the noble Lord will give his backing to the single transferrable vote.

[Lord Foulkes of Cumnock]

I was commending the noble Lord, Lord Forsyth, and David Cameron earlier for not being party political in terms of support for the union and for not looking for party advantage. As the noble Lord, Lord Stephen, will find out, I am doing the same in relation to this. I will come to that in a moment.

We were told by the architects—it is coming back to me now. It was not the noble Lord, Lord Steel, who was guilty, but probably Henry McLeish who was the architect; he is the guilty person. If he is not, he is getting blamed for it now, but I am sure that he is.

[Lord Maxton]

Some of us on the convention argued for first past the post under any circumstances. The then leader, Donald Dewar, agreed as a compromise to try to accommodate the Liberal Democrats, and one or two others, that there would be a proportional system. Some of us would still have much preferred a first past the post system.

[Lord Foulkes of Cumnock]

That anticipates another point. Whoever was the architect—I think that it was Henry McLeish and others of his ilk who said, “This system will never produce an overall majority for any party. Be reassured. Don’t you worry”. Look what we have—less than 45 per cent of the people who voted in that election voted for the SNP, yet it has a relatively substantial majority in the Scottish Parliament. It does not work. When I asked one of the other people, who I will not name, and who I have just remembered was also one of the architects, why this came about, he said, “Because the system is weighted in favour of the rural areas”. That was deliberate—not to ensure that nobody got an overall majority but that Labour did not get an overall majority. It was not done for party political advantage.

Like my noble friend Lord Maxton, I argued for first past the post. I am still arguing for it and will fight to keep it for the House of Commons. I know that some Members opposite will join in that fight. Let us keep it there; I wanted to have it for the Scottish Parliament, but we did not get that. I would like to have a review to go to first past the post but, to use a phrase that was used earlier in another context, the genie is out of the bottle, and I do not think that we can go back. I agree with the noble Lord, Lord Stephen, that if we are to have a proportional system and we have single transferable voting for local government, there is a logical case to have the same voting system for the Scottish Parliament and local government. It would simplify things. I am not advocating this but simply saying that there is a logical argument in favour of it that could be put to the commission that will be set up.

I would also argue that one dreadful thing that has happened is the way in which we now have completely different boundaries for Westminster, Holyrood and local government. It is confusing everyone. In Wales they hope that with the revision of Westminster boundaries they will get them to coincide again. I hope that something will be done in Scotland to get the boundaries to coincide again. Let us say that the commission was convinced by the arguments for the single transferable vote. We would then have a simplified electoral system, with two elected levels having the same system. If we could get the boundaries more contiguous, we would make things simpler for the electorate and do a great service.

I look to the Minister when I say that I hope that some consideration will be given to this. A lot of time has passed since the Scottish Parliament was set up. Many people have suggested a review. I had been led to believe in the corridors and the Lobbies that the Government were looking at this and moving in this direction. I hope that they will move relatively quickly, and I hope that the Minister will be as sympathetic as he was in his answers to my previous amendments. I beg to move.

[Lord Steel of Aikwood]

My Lords, unlike the noble Lord, Lord Browne, I will show some gratitude to the noble Lord for his very good party on Saturday night by supporting the amendment that he moved. My serious point is that he was right to say that we were promised, at the time that the Scotland Act passed into law, that there would be a review of the election system after a couple of Parliaments. This has not happened and I hope very much that, whether or not we agree the amendment, there will be such a review.

I would support a review for four brief reasons. First, there is the question that we discussed, and that I will not repeat, about the clashes between regional Members and constituency Members. Despite what my noble and learned friend said earlier in debate, I know for sure that it has been a problem in some areas. The second reason is the one the noble Lord referred to just now. Since the Scotland Act came into being, we have changed the electoral system for local government. People are now familiar with STV, which they were not at that time when my noble friend and others were pressing for it to be adopted in the Scottish Constitutional Convention.

I come to my third reason. I used to be a very strong supporter of first past the post. Partly because I was the only Member of the House of Commons who represented three counties, I felt very strongly about the relationship between a Member and his constituency. However, the way the Boundary Commission has operated in Scotland—not just in creating differences between Scotland and Westminster but within Scotland itself—is extraordinary. Constituencies no longer represent communities but arithmetic. For example, a chunk of Midlothian was thrown into the Borders at the last election, despite the fact that a public inquiry had stated that it should not happen. The old first past the post basis under which one represented a community has gone, because of the obsession with representational arithmetic rather than communities.

The fourth and final reason why I support an inquiry is that we now have in Scotland no fewer than four election systems that we invite the electorate to indulge in. We have first past the post for Westminster, a party list system for the European elections, STV for local elections and a regional list system for the Scottish Parliament. I cannot think of any democracy in the world where there are four different systems for different elections.

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[Lord Wallace of Tankerness]

My Lords, the amendment moved by the noble Lord, Lord Foulkes, has generated a considerable amount of discussion on the merits or demerits, as perceived by noble Lords, of the present electoral system for the Scottish Parliament. I declare a non-interest: I was not at the noble Lord’s party, but I can assure him that that has no bearing whatever on the response I will give to his amendment.

He wishes to set up a committee to review the electoral system used to elect Members of the Scottish Parliament. It is tempting to go through the history of how we arrived at the electoral system we have. I shall resist that temptation, other than to say, as was indicated, that it was a compromise. It was obvious at the time and is the case. My noble friend Lord Steel said that there was a commitment to review the system after two elections. I do not remember such a commitment but, nevertheless, the Arbuthnott commission was established jointly, if my memory serves me correctly, by both the Scottish Government and the United Kingdom Government to look at the electoral system. It reported, recommending some revisions to the electoral system. I try to remind myself what they were. The Arbuthnott commission recommended that the mixed-member proportional system we have for elections to the Scottish Parliament should be revised to give voters more choice. It suggested that the closed list should be replaced by an open one, that the boundaries should be based on local authority areas and that a role should be defined for the regional MSP. Self-evidently, these recommendations were not taken forward or implemented.

The commission went on to say that,

“our revised electoral system, if implemented, should be reviewed following the experience of two elections. If further reform is judged necessary, consideration should be given at that time to introducing the single transferable vote for Scottish Parliament elections”.

As I have indicated, that revised system has not been implemented. The Calman commission perhaps read more into that and interpreted it as saying that in any event there would be a further review after two more elections—ie, after 2011. My colleagues who sat with me on the Calman commission will no doubt recall that we did not make any recommendations on the voting system as such because of the very recent Arbuthnott review, but also because there might have been a future review.

As I indicated in an earlier debate, specifically on another aspect of the electoral system and the regional list Member also standing in the constituency, the Government have stated their intention to consider what has been said by a review of the electoral system by both the Calman and Arbuthnott commissions. Indeed, in the Command Paper published alongside the Scotland Bill on St Andrew’s Day 2010, Ministers said that they recognised that the Calman commission,

“considered whether the electoral system for the Scottish Parliament should be reformed or devolved to the Scottish Parliament. Previously, the Arbuthnott Commission had reported in 2006 stating that there should be a review of the electoral system after the 2011 elections to the Scottish Parliament—the Government will consider this recommendation, taking into account the views of the new Scottish Parliament, following the May 2011 elections”.

Clearly, as indicated by the debate we have had this afternoon, there is support in a number of quarters for some form of review of the electoral system. However, the Government believe that they could take forward that review only with the full support of all parties in the Scottish Parliament, along with the benefit of the detailed consideration that this Government are committed to. I take the point made by the noble Baroness, Lady Liddell, that there is perhaps some nervousness about seeking to change the rules after they delivered a result that many of us did not like. That is a fair point. The noble Lord, Lord Browne, also made the important point that there are perhaps more important constitutional issues that we should focus on at this time, not least the fundamental question of Scotland’s place in our United Kingdom. Perhaps now is not the appropriate time to start a review of the electoral system. I have indicated that if there is that consensus to take it forward at some future time, we would be willing to consider it, but this is not the appropriate time to do so.

I think that we all share two views that were expressed earlier. First, I endorse what my noble friend Lord Forsyth said on the standing and importance of a Member of Parliament in his or her community. He said that those of us who have had the privilege to serve as Members of Parliament take very seriously that we represent the entire community and not just those who voted for us. That sense of representation and the privilege that follows those of us who have done that is important. That links into what the noble Lord, Lord McFall, said on the duty of all us to consider how as politicians—elected or not—and as a political system we can re-engage with the people who our laws affect. That will not be done just through a change to an electoral system. There are a whole host of things but it is something we would do well to remember.

For clarification, on the specific point raised by the noble Lord, Lord Foulkes, on Amendment 1, I repeat that we will see what consensus there is about looking at that. In the spirit of what I have said, I hope the noble Lord will withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, we have had a very lively and well informed debate, considering that we started over seven hours ago with the procedural amendment proposed by the noble Lord, Lord Forsyth. It has been a very useful debate.

My noble friend Lady Liddell—I call her Secretary of State emeritus for good reasons—alerted me to the fact that she was going to disagree with me. I did not realise that it would be such a gentle disagreement, because it was a very sensible contribution. She pointed out the genuine argument against my proposal, and I had taken account of it. It is a very genuine argument about timing that we need to be concerned about. There is never a good time for this, and we wish we had done it. My noble friend said that we had missed the boat. I wish we had had a review when we should have had one, but it is too late now. I am glad that the Minister has said that the Government would look at it at an appropriate time. If the noble Lord, Lord Stephen, is correct in what he said in intervening on my noble friend, there is hope that we might get agreement across parties and between this and the Scottish Parliament. That would certainly signal the way forward.

I thank my noble friend Lord Browne for his very positive response. He was a bit hesitant about it, but it was very positive indeed. Someone said that this was not the vehicle to raise this issue, but it was the only vehicle open to me. I accept that it may not be the best way forward. Therefore, because I accept the point made by the Minister in his very helpful reply, I beg leave to withdraw my amendment.

Amendment 17 withdrawn.

Scotland Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 24th January 2012 Lords Chamber

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

My Lords, the usual channels have agreed that it would be desirable for the Committee-stage debate on the question of a referendum on independence to take place after the Government’s consultation has closed on 9 March. This Motion enables our debates on Clause 10 of the Bill to be taken last, and I suggest that any amendments relating to a referendum are best placed “before Clause 10”. I respectfully encourage noble Lords to table referendum-related amendments as “before Clause 10” rather than to other parts of the Bill. If the House agrees to this Motion, I understand that the Chief Whip will ensure that the last day in Committee is scheduled for the week of 12 March.

[Lord Foulkes of Cumnock]

My Lords, the Minister will recall that on 10 January I raised this with him when he made the statement and asked that the whole Committee stage be held over until after the consultation. My intention was to ensure that there should be no discussion on the referendum and all aspects of it while the consultation was under way. I therefore thank the Minister very much indeed for finding a solution that enables that to be put into effect.

[Lord Neill of Bladen]

I refer to the letter from the Scottish judges asking for additional clauses to be put into the Scotland Bill. Where does that fit into the Minister’s programme? How do we handle that?

Scotland: Constitutional Future

Lord Foulkes of Cumnock Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

I certainly know why my noble friend did not participate, having been a former Presiding Officer. I had some participation in the Scottish elections as an observer, and it is probably right to say that whether or not Mr Salmond was the best of the party leaders to be First Minister seemed to resonate in the debates more than the question of independence. Nevertheless, it has been the policy over many years for the Scottish National Party to have a referendum on independence. That clearly was in its manifesto and the United Kingdom Government have, since May last year, indicated that we recognise that. The timing was certainly not in its manifesto but, as I think my noble friends Lord Forsyth and Lord Steel said, the SNP said that it wanted a referendum on independence and we are trying to ensure that it gets one. What could be fairer than that?

[Lord Foulkes of Cumnock]

My Lords, we should all welcome this decisive action by the Government, which has helped to fill a vacuum that was there in putting the unionist case. However, in the consultative document there is one matter that causes me some doubt. Why is there any question about who should oversee the referendum? Surely, it must be the Electoral Commission that decides the wording of the question, how much money should be spent by each side and all the other aspects. Surely, that does not need consultation.

Perhaps I may ask a practical question in relation to the consideration by this House. Since the consultation finishes on 9 March and we are due to go into Committee on 26 January to consider the Scotland Bill, and since some of us have put down a number of amendments—indeed, I have put down one in relation to Section 30 that is exactly what the Government are proposing—are we really going to go ahead with the Committee stage on 26 January? It will really be a false debate that is taking place when we know that this consultation is under way. It will be going through the motions without any real substance to the debate. I hope that the Government will now consider postponing consideration in Committee as a result of that.

[Lord Wallace of Tankerness]

My Lords, with regard to the noble Lord’s first question, it is very clear on page 16 of the consultation document that the United Kingdom Government believe that the Electoral Commission should oversee any referendum on Scottish independence. Indeed, we have included provision in the draft Section 30 order which is appended to the consultation document. However, we put the question because this is an issue which the Scottish Government have called into question. It is something that should be consulted on, but the UK Government make it very clear that we believe that the body best equipped to oversee this, with a track record of overseeing impartially and fairly, is the Electoral Commission.

With regard to the timing of business, as a non-business manager it is always very difficult to embark into that territory. However, the consultation will be current because there are issues other than the question of the noble Lord’s amendments, and amendments tabled by other noble Lords, with regard to independence. There are other issues to be debated in Committee. Also, it would not necessarily do any harm to air some of the issues—perhaps in more detail, which we have in this consultation—and of course there will still be the Report stage to come back to, by which time we will have had the outcome of the consultation.

Scotland Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 6th September 2011 Lords Chamber

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

My Lords, as your Lordships’ House’s Constitution Committee said,

“The Scotland Bill is a measure of clear constitutional significance”.

Indeed, this Bill will strengthen Scotland’s position within the United Kingdom by further empowering the Scottish Parliament and making it more accountable to the Scottish people. I do not think that I have said anything controversial.

[Lord Foulkes of Cumnock]

The Minister had said something very important: this Bill is a matter of clear constitutional significance, not just to Scotland but to the whole of the United Kingdom. Does he not think that it is a disgrace that we are starting to discuss the Bill at 5.35 pm, and that we are only going to have half a day for the Bill, when in 1998 the Scotland Bill had two days at Second Reading? Is that not outrageous, and are the Government Whips not culpable in relation to that?

[Lord Shutt of Greetland]

My Lords, when the business was laid and agreed by the usual channels—I am delighted that the noble Lord, Lord Bassam, is here, and will be able to confirm that it was—it was not of course known how many speakers there would be. There are, I think, three dozen speakers on the Scotland Bill today. We did not know that when the business was agreed, but it was agreed. It is the normal way of things that when there is divisible business, that business comes first. Again, that was agreed by the usual channels for the convenience of the House. We have just seen this afternoon how convenient it is for the House, because in the two earlier Divisions just short of 400 Members went through the Lobbies. Clearly, it would not have been convenient for those Members to stay here until late this evening.

Three dozen people have put their names down to speak. It is not unusual for a Second Reading to go beyond the normal 10 pm deadline, and, as I say, it has been agreed by the usual channels. I think we would be better to get on with it, as otherwise it will get later still.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, given the plethora of criticisms of this Bill, and of suggested amendments—I have one or two more to suggest—I must say it is very fortuitous, and the Minister must be very glad, that it is going to be at least three months before we get to the Committee stage. May I make a helpful suggestion to the coalition Government, which is not something I often do? They might consider some government amendments to take account of some of the very good suggestions—some of them detailed, some not controversial, and not necessarily political—that have been made during the course of this Second Reading. They should look at Hansard very carefully and consider that, as it would help our debate and discussions at Committee stage.

Last Saturday, I was with about 50,000 other Scots at Hampden, and about 1,000 Czechs, and I cheered with them when Kenny Miller and Darren Fletcher scored. I even joined in the singing of “Flower of Scotland”—fortunately, not many people heard me—with all its words about sending proud Edward’s army home to think again, but that did not mean that all of us there wanted to see Scottish secession. Patriotism, or pride in one’s own country, does not mean that you want to see the break-up of the United Kingdom. When we come to consider these decisions, all of us in Scotland will be using our heads, not our hearts, to make that decision.

I see colleagues here—I was going to say from all parties, but there are not many Tories although there are Liberal Democrats and Labour Members—who campaigned for devolution again and again. We have got the campaign medals from 1979 and 1997. In the battle for devolution, it was not just the Tories who were posted missing. The SNP was missing also—not missing in action, just plain missing. At the time, fundamentalism ruled within the SNP. Rightly, in my view, it saw independence and devolution as two totally different concepts. I say that to the noble Lord, Lord Lang, because I do not accept his pessimism; we have to look at this carefully, turn things round and fight for the cause that we believe in.

Now, though, that fundamentalism has been put to one side and we have Salmond’s opportunism taking over, trying to get independence by stealth and taking advantage of step-by-step devolution. That is why I hope that the noble Lords, Lord Steel and Lord Selkirk, who say that there are to be third and fourth stages, are wrong. They are playing into Salmond’s hands. He wants, having had three or four steps, to think that there will then be just one more little step to independence, and that is where the danger lies. This is a nonsense; that would be the biggest step of all, crossing the Rubicon once and for all. It would be a major step that could not be gone back on. As others have said, it would mean the splitting up of the United Kingdom.

The UK has been the most successful economic union over a long period anywhere in the world. Our flexible constitution means that what we now have with this variable geometry, this quasi-federalism, this phased federalism, has been possible. I say to my friend, the noble Lord, Lord Steel, that it is a nonsense to say that federalism, which I support—unfortunately, the Liberal Democrats seem to have abandoned it—is impossible because of the size of England. They just assert that without any argument or justification. There would be nothing wrong with having an English Parliament dealing with devolved affairs, as Scotland, Wales and Northern Ireland do, and having this federal Parliament dealing with the reserved areas. That would not impinge on Scotland, Wales or Northern Ireland. It would be perfectly logical and it is the one stable solution that we should be moving towards in the longer term; otherwise, the only two stable solutions are centralised government, which we have left behind, or independence for each of the units.

Secession would be a disaster, as I say, but we should avoid saying that Scots could not govern an independent Scotland. Of course they could; it is entirely possible. Many Scots have governed the United Kingdom one way or another as well as other parts of the world in colonial days—it was not the English but the Scots who did most of the colonisation—so we should not argue that. Scots could govern a separate Scotland effectively; that is not the question. The question is whether we are better off in or out of the United Kingdom.

As others have said, and this bears constant repetition, the uncertainty that is being perpetrated by the Scottish Government is harming Scotland. Linda Urquhart, the chairman of CBI Scotland, spelt it out the other day. Others have said to me that people do not want to invest in Scotland. The UK Government will think twice about putting, let us say, the green bank or some other development in Scotland because of the uncertainty regarding the future of Scotland within the United Kingdom.

As my noble and learned friend Lord Davidson of Glen Cova said, in what I thought was a brilliantly constructed speech full of crucially important points, and as others have confirmed, constitutional issues are a UK Parliament competence. It is our responsibility, and it is about time that we took that responsibility. This is why I am proposing to table an amendment for consideration in Committee—I know others have thought about this and perhaps we should discuss it—that the UK Government organise a referendum as quickly as possible to end the uncertainty. We should also choose the wording of the question, which is very important; look at the wording in the Herald opinion poll to find out why that had the result it did. The wording should be: “Do you want Scotland to remain part of the United Kingdom—yes or no?” We would campaign for the yes side.

The timing of the election should also be our decision. We should not concede that the Scottish Government should run the referendum; we should not leave it to Salmond’s trickery. It would be a loaded question, and the timing would be his timing to make sure he got the best possible result. If a referendum is inevitable, as people seem to assume, it is for us here in the United Kingdom Parliament to take responsibility for it.

I have a few additional points to make. Notwithstanding my noble friend Lady Ramsay’s plea that we do not use this Bill as a Christmas tree, I want to suggest that there are one or two things that we should consider adding to it. For example—I have started to consider an amendment for this as well—both the Scottish Constitutional Convention and the Arbuthnott report suggested that we should review the electoral system for the Scottish Parliament. It is crazy. I got elected to the Scottish Parliament without any campaigning at all. I campaigned not to get elected: I campaigned for constituency members to be elected. I did not spend a penny on the campaign, and I got elected. It is a crazy, crazy system. Regional list MSPs and constituency MSPs just do not go together.

As someone said earlier on, the electoral system was supposed to prevent any party getting an overall majority. Well, it clearly does not do that. It is weighted against Glasgow, Edinburgh and the central belt in favour of the rural areas where the SNP has its stronghold, and that is why the party has done so well. It is a distorted system and it needs to be reviewed. Now, of course, we will be accused of calling to review it because of the outcome of the last election. We should have done it before—I accept that—but why bother about what we are going to be accused of when we will be accused of these sorts of things anyway? We should take up this recommendation and review it.

I have also started drafting an amendment to prohibit the Scottish Government from charging huge fees for students coming to Scotland from England, Wales and Northern Ireland. It is a disgrace, an absolute disgrace, that Edinburgh University is to charge these students £9,000—that is £36,000 in fees for a four-year course—whereas students from Poland, Lithuania and other parts of the European Union will get in for nothing. Which students will be able to afford to come to Scottish universities from England? Maybe the old Etonians and old Harrovians will get in, but ordinary students will not be able to do so. That is not that only reason for an amendment. The current arrangement is discriminatory and unfair and, with no disrespect to Christmas trees, we should take the opportunity to legislate on this.

In conclusion, we federalists, devolutionists and unionists—but not separatists—should take the initiative once more, as many of us did when we set up the Scottish Parliament. Like the noble Lord, Lord Forsyth, I have a few more amendments up my sleeve. I am looking forward with great relish to the Committee stage of this Bill.

Fixed-term Parliaments Bill

Lord Foulkes of Cumnock Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Rennard]

My Lords, I will speak first in support of the principle behind Amendments 22 and 23, tabled by my noble friend Lord Norton and by the noble Lord, Lord Rooker, who is not with us this evening. The amendments deal exclusively with the power of the Prime Minister to bring forward the date of the general election by two months. I speak on the basis that I have yet to hear any substantive or convincing reason for giving this power to a Prime Minister in a context in which we are supposed to be taking away from the Prime Minister the power to determine the date of a general election.

I cannot see how one could anticipate unforeseen and extraordinary circumstances that will occur in two months’ time, and thereby justify bringing forward an election by two months in order to avoid the unforeseen and extraordinary event. It was said that Nancy Reagan used her knowledge of astrology to influence the timing of some of President Reagan's decisions; I do not believe that our constitutional principles should be based on star gazing and prophecies about future disasters. If we can foresee such an event and there are extraordinary reasons for bringing forward an election by two months, there are procedures in the Bill that will let Parliament decide to do that. I believe fundamentally that the power to bring forward an election by two months, if it is necessary, should lie with Parliament and not with the Prime Minister, and that a change to the five-year rule should be made only when there is a transparent and justifiable reason that can be properly debated and considered in Parliament.

I recognise that there is a much stronger case for saying that it may sometimes be necessary to postpone an election by two months, as effectively happened in 2001 with the outbreak of foot and mouth disease. Therefore, I am not convinced that it is right to remove completely the flexibility for a two-month delay, as proposed in Amendment 18 by the noble Lord, Lord Howarth.

With my noble friends Lord Tyler and Lord Marks, I have suggested in Amendment 25 that a two-month delay, if necessary, should be subject to a two-thirds majority in the House of Commons and a majority in this place. We believe that that brings in sufficient safeguards to prevent a Prime Minister abusing his power, which is the principal intention in the Bill.

We note that the noble Lord, Lord Norton, is attempting in Amendment 24, as he has just said, to put a legal restriction on the use of the Prime Minister’s power to vary polling day to situations where it would be impossible to hold an election because it would be,

“impractical or injurious to the economic, social or public health of the nation or a part thereof”.

However, it seems to me that we might get into a very lengthy and quite detailed legal argument about what constitutes such circumstances. In our opinion, it is better to leave to Parliament’s discretion the question of what circumstances are appropriate. I am confident that such support would have been forthcoming in the case of a big national crisis, such as the foot and mouth epidemic of 2001, and I hope that during the passage of this Bill the Government will be able to accept that principle.

To my mind, it is better to subject the power in Clause 1 to vary polling day to a political restriction, requiring political consensus, than to a potential legal argument that may leave polling day to be decided in the courts rather than in Parliament. I accept that the question of whether Amendment 24 or Amendment 25 provides the best safeguard against the misuse of power to vary polling day is a matter of debate, but I think that noble Lords will be very attracted to one option or the other. I also believe that many of us will agree that the potential prime ministerial power to bring forward an election by two months should simply not remain in the Bill.

In conclusion, it seems that there is a fundamental flaw in the logic of this part of the Bill in relation to varying the date of elections. I say that because it makes no provision for varying the fixed date of the local council elections. As we are legislating for general elections to be held in the first week of May, and as council elections every year in much of the country are held on the first Thursday in May, if it were necessary for whatever reason to vary the date of the general election, surely it would be equally necessary to vary the date of the local council elections. There are of course provisions to vary the date of the Scottish Parliament or Welsh Assembly elections but only by one month. Therefore, why should the Westminster general election be varied by perhaps two months when elections in Scotland or Wales can be varied by only one month?

[Lord Foulkes of Cumnock]

I commend the noble Lord, Lord Rennard, for very effectively pointing out one of the problems of this Bill. Can he also contemplate the position that would exist with elections to this Chamber? Would they be on a fixed-term basis? Would they all be on the same day? Could they be moved, and on what basis would they be moved? Would it be two weeks or two months forward or two months later? Would that not be an additional complication?

[Lord Rennard]

My Lords, I have absolutely no doubt that that precise matter will be the subject of considerable scrutiny during the passage of the Lords reform Bill in the pre-legislative scrutiny of the draft Bill and in the Joint Committee of both Houses.

However, for the moment we are dealing with the legislation as it is, and legislation at the moment provides for council elections to be held on the first Thursday in May every year. Therefore, it seems quite illogical for the Government to argue that we may need to vary the date of the general election and to give exclusive power to the Prime Minister to vary the date of a general election by two months when the council elections will not be varied except, as in 2001, by primary legislation. The Government accept that primary legislation can vary the date of the council elections. Therefore, primary legislation could, if necessary, vary the polling date of the general election.

The Bill could provide for a more sensible mechanism for varying the polling day in general elections by requiring any such variation to have a two-thirds majority in the House of Commons and a majority in this place.

[Lord Foulkes of Cumnock]

The noble Lord, for whom I have great respect, having known him for a long time, makes a very good point. However, I was trying to make the point that, by legislating piecemeal on these constitutional matters, a lot of problems are building up, just as he has described, and those problems are going to apply a fortiori—I am not sure whether that is exactly the right term—or almost ad infinitum when we come to legislate for House of Lords reform. Does that not point to the fact that it is very unwise to introduce constitutional legislation in this piecemeal manner?

Fixed-term Parliaments Bill

Lord Foulkes of Cumnock Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

The noble Lord was not in the Chamber for the whole debate. He knows that I normally give way. Perhaps I can just—

[Lord Foulkes of Cumnock]

The Minister is having difficulty finding his place. I am only trying to help him.

[Lord Wallace of Tankerness]

The noble Lord is always trying to help. I cannot remember who it was in the last debate—it may have been my noble friend Lord Brooke—who said that one should always beware of the help that comes from certain quarters.

One treats with caution foreign comparisons because, as the noble Lord, Lord Howarth, said, there are different circumstances. However, noble Lords mentioned the fact that there are fixed terms of four years in the United States. I happened to note, reading a copy of the Economist from earlier this month, some comment that for the Republican Party people have not yet been clearly identified as taking part in the primaries. That is just two years and two months since the inauguration of President Obama. It is in order for a Government who receive a mandate to be able to fulfil their programme over a planned period and I believe that five years is more likely to assist that than four years.

[Lord Foulkes of Cumnock]

That was not very convincing.

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, will get an opportunity in future to intervene. I am sure that he will make a speech on another set of amendments, to which I shall be more than happy to reply.

At the moment, we have a system that allows up to a maximum of five years. In fact, three of the past five Parliaments have gone for five years. To remove that possibility requires a more compelling argument than we have heard. To move for four years would leave the effective working life of a Parliament and a Government sufficiently curtailed that they would not be able to implement their manifesto provisions. Therefore, I ask the House to support the idea of a five-year fixed term and ask the noble and learned Lord in those circumstances to withdraw his amendment.

[Lord Falconer of Thoroton]

My Lords, I will of course withdraw my amendment at the end of the debate because the purpose of debate at this stage was in order to probe and examine the arguments. The noble and learned Lord’s speech was well delivered but disappointing because it ultimately did not address the central argument being put against him: that the effect is to change our constitution, where there is a five-year maximum but the norm is around four years, to one where the norm becomes five years save in exceptional circumstances.

What everyone around the House was asking him was: why are you making this change if we have to make the judgment on what is in the best interests of good governance in this country? The Minister never answered that question at all but it is at the heart of the debate. This is not a party-political point. The reason that the noble and learned Lord cannot answer the question is that good old Mr Laws, in order to make it clear that the record should not be perverted in any way, has explained why it is five years. I do not know why the noble and learned Lord, who is an honourable man, is weaving and dodging on this. Just say, “They wouldn’t do a deal with us unless we agreed five years”. Do not try and make it something that it is not.

One of the other things that emerged so strongly from this very powerful debate was the sense that the more one talked about it, the more this House felt uneasy about being locked into this straitjacket that the Bill brings. I am in favour of fixed-term Parliaments, in the sense that I can see it to be appropriate that Parliament should in some way endorse what the Prime Minister has decided about an election. However, the Government are saying, “You have to choose between five years and four years”. I detected a real sense of unease around the House on this, but the Government are putting it that we have got to make this choice. Therefore, looking at the arguments, let us see which the best choice is. The noble and learned Lord himself said what the reason is that the Government are doing this.

Now, I cannot find my note. That would give my noble friend Lord Foulkes an opportunity to ask me a question, but I do not think that he wants to ask me any questions. I am sorry about that.

[Lord Foulkes of Cumnock]

My noble and learned friend is aware that I have just spent the last year of a four-year term in the Scottish Parliament. We happen to have been legislating right up to the very last day of that Parliament. There has been none of the kind of lassitude, or the feeling that the noble and learned Lord, Lord Wallace, described as an end-of-term—what word I am I looking for?

[Lord Howarth of Newport]

Fatigue.

[Lord Foulkes of Cumnock]

There has been none of that fatigue in that Parliament, which has been legislating right up to the wire, and no lame dog—

[Noble Lords]

Lame duck!

[Lord Foulkes of Cumnock]

Yes, I mean lame duck; I knew I would get it eventually. I can tell my noble and learned friend Lord Falconer that one of the architects of the four-year fixed-term Parliament in Scotland was the noble and learned Lord, Lord Wallace of Tankerness.

[Lord Falconer of Thoroton]

How grateful I am for all that. I know that the Minister will have listened to it all.

To go back to my point, the noble and learned Lord is making us choose between five and four years, but the arguments that his Government put forward are all on the accountability side. That is what makes the case being advanced so absurd. Again, in the evidence that the Deputy Prime Minister gave to the examination of the Bill, he said in justifying it that,

“it is an unambiguous judgment on our part that reducing the power of the executive, seeking to boost the power of the legislature, making the legislatures more accountable to people ... collectively introduces the mechanisms by which people can exercise greater control over politicians”

How could he have been trying to justify the Bill as giving more accountability in a process that left the electorate with less ability to get rid of Governments, because there would be fewer general elections? What is so odd about the Government’s position is that they rely upon accountability and then propose something that produces less of it.

Fixed-term Parliaments Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 1st March 2011 Lords Chamber

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

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Fixed-term Parliaments Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of this Bill. I beg to move that the Bill be now read a second time.

The Fixed-term Parliaments Bill delivers a key strand of the ambitious political and constitutional reform agenda which this Government have pledged to deliver. The importance of these issues of political reform was reflected in the prominence given to them in the campaigning of all the major political parties at last year’s general election. There is now a consensus across the country—dare I say brought to a head by the expenses scandal but which had been forming for some time—that the political system in this country needs to be reinvigorated.

It has been my experience over many years in active politics that the overwhelming majority of people who come into politics—of all parties, and indeed in this House of the Cross Benches—do so out of motivation for public service. Nevertheless, sadly, politics has increasingly come to be perceived to have become more about protecting vested interests than about political representation of the electorate.

Let us not forget the backdrop to many previous general elections under the current arrangements when it was often widely anticipated that the election would be held at some stage during the third or fourth year of Parliament and the country was left on tenterhooks. On those occasions, the question was when the most advantageous date to call an election would be. From our own memories, I am sure we can think of Conservative or Labour Prime Ministers who made that calculation. Regrettably for my part, no Liberal Prime Minister in living memory has been in a position to make that calculation. However, the question is: advantageous to whom?

The question that the Prime Minister of the day considers then is not necessarily whether that date would be most advantageous to the country or the electorate; it is, more often than not, whether that date would be most advantageous to the incumbent party of government seeking re-election. This is an example of what people have grown tired of: a political system geared in favour of the Executive and used for partisan advantage. Fixed-term Parliaments will provide stability as it will be known from the beginning of the Parliament how long it can be expected to last. We already have fixed-terms for the devolved institutions, local government and the European Parliament.

We are not saying in the Bill that all Parliaments must last for five years no matter what happens, but there must be a significant and pressing reason for early Dissolution, and it is right that the other place, whose support is essential for the continuation of any Government, should be able decide when that should occur. This should not be a decision for the Government to take for themselves. That is why the Bill provides that Parliament should ordinarily last five years. It transfers from the Prime Minister to the House of Commons the power to bring about an early general election.

I am grateful to the noble Baroness, Lady Jay, and members of the Constitution Committee of this House for the careful scrutiny that they have given the Bill. As a former member of that committee, I know the important role that it plays and I believe that its report will aid our debates during the Bill’s passage through your Lordships’ House.

I acknowledge that most of those on the committee decided that the case had not been conclusively established for fixed-terms. However, let us not forget that this debate has been going on for some considerable time. As I noted, fixed-terms already exist for our devolved institutions, local authorities and the European Parliament. Moreover, there were commitments in the 2010 manifestos of the Labour Party and my own party, the Liberal Democrats, to establish fixed-terms for the UK.

I was pleased to note the committee’s endorsement of significant elements of the Government’s proposals, particularly the two mechanisms in Clause 2 that provide for an early general election to be held. It seems to me that the committee has said that, if the principle of fixed-terms were accepted—I have acknowledged that that is not what it said—this Bill sets out very much the way in which one would seek to achieve that principle. The Government have responded to the committee’s report in a Command Paper, copies of which are available in the Printed Paper Office.

The Bill is modest in size. It has only five clauses and one schedule, but we can be in no doubt that its effect would be significant. Clause 1 relates to polling days for parliamentary general elections. It sets out that the polling day for the next parliamentary general election will be 7 May 2015. Each subsequent parliamentary general election will be expected to occur on the first Thursday in May every five years.

As I said earlier, we of course recognise that there may be exceptional circumstances in which it would not be appropriate for Parliament to continue to run for its full fixed-term—I will come to the arrangements for those shortly. When such an early election is called, however, Clause 1(4) clarifies that Parliament will run for five years from the preceding first Thursday in May. This provision has been endorsed by the Constitution Committee and will provide that a Government elected at an early general election will have a full term, allowing them to deliver a full legislative programme.

[Lord Foulkes of Cumnock]

Is the Minister now able to answer a question that he was not able to answer at the informal meeting yesterday? Why was the month of May chosen when more general elections have taken place in October in the past? Local elections are normally in May and general elections in October.

[Lord Wallace of Tankerness]

I think the last October general election was in 1974, which was some 36 years ago. I have no doubt that the noble Lord remembers it well. However, it is difficult to say that they have generally been held in October when the last one held in October was over a third of a century ago. In more recent times, elections have been held in May. In 2001, it would have been held in May but for the outbreak of foot and mouth disease. It was held in June. This present Parliament was elected in May, and the natural course would be to go through to May 2015 if it was to have its full five years. That is why May was proposed in this Bill.

Clause 1 includes a power for the Prime Minister, by affirmative order, to vary the date of the polling day by up to two months either before or after the scheduled polling day. This power is intended to accommodate short-term crises or other conditions that might make it inappropriate to hold the election on the scheduled date: for example, a repeat of the foot and mouth crisis, which led to the postponement of the local elections in 2001. Although the general election was within the five years and nothing was needed to change the date, that is the kind of circumstance that is anticipated.

This is where your Lordships’ House will have an important role to play in the procedures set out in the Bill. Any instrument made under the Bill to vary the date of a scheduled election by up to two months will require the agreement of your Lordships’ House, thus affirming this House’s role as guardian of that particular principle of the constitution. It reflects an existing provision of the Parliament Acts: that your Lordships’ consent is required for any Bill that extends the maximum life of a Parliament beyond five years.

I am grateful to the noble Baroness, Lady Thomas, and the members of the Delegated Powers and Regulatory Reform Committee for its report on this Bill. I was glad to see that the committee felt that the delegated power taken in Clause 1 of the Bill was justified. I can assure the noble Baroness, her committee and indeed the House that we will give careful consideration to the report and its recommendations and I will respond very shortly.

There has been much debate over whether the length of Parliaments should be four years or five. It is not an exact science; it is a question of judgment. However, all arguments considered, the Government remain of the strong view that five years—the current maximum set out by the Parliament Act 1911 and more recently the norm—is the right length for a Parliament. Three of the last five Parliaments have lasted almost five years, and 44 countries out of 77 in the Inter-Parliamentary Union have five-year terms for their lower house, with only 26 having four-year terms. Indeed, there are five-year fixed parliamentary terms in Italy, South Africa, France and Luxembourg, and there is a five-year non-fixed term in Ireland and India.

My right honourable friend the Deputy Prime Minister has spoken about the need for Governments to work for the long-term advantage of the country rather than simply to pursue policies for the short term. Not only will the five-year fixed-term help facilitate better planning within government, but it can help facilitate better scrutiny of the Government by Parliament. With a fixed term, Parliament will be able to plan better their scrutiny of the Government’s legislative programme, and Select Committees will have more certainty when planning their inquiries. Indeed, this point was recognised by the Political and Constitutional Reform Committee in the other place.

Noble Lords might well argue that the recent experience of five-year Parliaments is that the Government are unpopular and have had limited ability to make use of the extra fifth year. However, I contend that that occurs in the current political framework and would not be a foretaste of what would happen under this Bill. The five-year Parliaments of recent years have been a somewhat self-selecting sample; they existed only because the Government in question did not believe they could win an election at the end of four years and were possibly waiting for something to turn up. Of course, in these circumstances, the Government tend to be tired and lacking in ideas. However, under this Bill, it will be possible for a Government to plan properly for a full five-year term.

There will be more certainty with fixed terms, and, with our proposed change to begin the Sessions of Parliament in May, the last Session would be a full one. As long as the Government retained the confidence of the other place, they would be able to deliver a full programme in their fifth Session. We would not have a situation in which the fifth Session began perhaps in the last week in November and by the last week in March we were engaged in a wash-up process. The Government can plan for the longer term, knowing that they will have time not only to introduce measures but to see them to fruition and begin to produce results.

I anticipate, too, that it might be argued that this Bill is part of some plot to reduce Parliament’s power over the Executive by extending the period between elections. However, we are not extending the potential period between elections. That remains, as it is now, five years. However, the certainty of five years means that not only the Government but Parliament can plan properly. It can plan its scrutiny programme and Select Committees can plan their inquiries. It will lead to more and better scrutiny, not less.

I turn to the interaction of the proposals in the Bill and the timetable for elections to the devolved institutions: an issue that has led to some considerable discussion and debate, not to say controversy. Under the proposals in this Bill and the respective devolution Acts, elections to the House of Commons and the devolved institutions will coincide every 20 years. Concern has been expressed about that. I ask your Lordships to recognise that this Bill has not brought about the possibility that the elections to the House of Commons and the devolved institutions coincide. It was inevitable at some point under the existing variable arrangements for Parliament that that could happen. The Bill has merely given us prior notification and an opportunity to consider the issue.

Fixed-term Parliaments Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Greaves]

I am grateful for that correction but the noble and learned Lord allowed me to use the words. I believe it has a high-minded aim and it is something with which we agree. However, we still need to know, as a basis for our discussions in Committee and at following stages, what the Labour Party would like to do. What policies would the Labour Party be putting forward on this if it was still the Government? We have been told that we have to operate on the basis of what Mr Asquith said 100 years ago. Well, no one has greater admiration than me for the achievements of the great Liberal Governments in the eight years before the Great War. Really, things have changed a little bit in the past 100 years and if we are to argue on the basis of conditions 100 years ago we are not going to get very far, although the noble Lord, Lord Grocott, did say that what he said was for reasons of nostalgia and it would not have allowed Mr Callaghan to make his wonderful speech in 1979. I think we have got to start looking into the situation in the second decade of the present millennium.

Does the right of the Prime Minister to call an election give the Prime Minister a great advantage? We are being asked to believe that it does not. Whether or not it does it certainly dominates politics in the months and sometimes years leading up to a general election. It dominates politics, in my view, in a very undesirable way. The noble Lord, Lord Grocott, said that Mr Blair and Mrs Thatcher were evidence that it did not work. They between them fought five elections, I think, and won them all as Prime Ministers. That is a very strange argument.

The noble Baroness, Lady Jay, in a very thoughtful speech from her position as chairman of the Constitution Committee, said that what we need is more accountable Government. I agree that Governments need to be much more accountable than they are now and have been for as long as I have known—and I think that the position has probably got worse over the years—but I believe that that accountability is far more to do with the relationship between government and Parliament; both Houses, but particularly the House of Commons. We have a convention here. One cannot be too acerbic in one’s criticism of the House of Commons so I am not going to be. The noble Lord, Lord Bach, is encouraging me to be critical. I am very critical of the way the House of Commons works. I do not think it holds the Government to account properly. There have been some recent changes which are beneficial but I believe that that whole area is far more important than whether it is elected for four or five years. I am disappointed at the way in which the coalition Government have related to Parliament. I understand why—the enthusiasm of new brooms wanting to sweep clean and wanting to get things done but I believe that they have been careless. In some areas they have been too bullying and I believe that is probably coming to an end now. I hope it is; we will see. It is up to Members of Parliament in both Houses to stand firm and say this must not continue. I believe that slowly that is beginning to happen.

We have a system in this country where people elect Parliaments. I know that a lot of people think that they are voting for the Prime Minister. At the previous election, the single most common telephone call made to the election department in my own area of Pendle was from people who had postal votes and were ringing up to find out why they could not find the names Cameron, Clegg and Brown on the ballot paper.

[Lord Foulkes of Cumnock]

They were very stupid.

[Lord Greaves]

I do not think that people in my part of the world are any more stupid than anywhere else, but scores of such telephone calls were being made all over the country. We have moved to a more presidential system in recent years, but we nevertheless elect the House of Commons and not the Government. It is up to the House of Commons to decide who will form the Government, and it is up to the House of Commons to decide whether the Government still have their confidence. All the talk about a five-year Parliament putting more power in the hands of the Executive is not necessarily correct.

A number of important issues will have to be discussed. For example, what constitutes a vote of confidence must be clear. However, once that is clear, all the talk about what happened in 1895—I think that it was the vote of no confidence in Campbell-Bannerman and the attempt to take away his wages—as well as in 1910 and 1951, will become irrelevant. What will be important is what people think and know they must do in order to express no confidence in the Government. That must be absolutely clear, but it will then define the behaviour of politicians in the House of Commons.

I do not believe that whether the fixed term should be four years or five years is a major issue; other people do. I was fascinated by the noble Lord, Lord Hennessy, talking about biorhythms. I know that when I am going through a low patch my wife always looks up the book of biorhythms and tells me what is happening. If that does not work, she looks at the phases of the moon. I say to her, “Well, it’s to do with the viruses I’ve got in my head. It’s the head-cold viruses, or perhaps it is just to do with the latest government announcement I don’t agree with”. I am not quite sure that parliamentary biorhythms are much to do with it, but I shall be interested to hear more about that fascinating theory.

It has been said that the average length of Parliament since the war has been three years and 10 months, which I assume is true, but that has been utterly distorted by the fact that there were three very short Parliaments in 1950, 1964 and 1974. If one takes those out, the average rises to something over four years.

Of course, it can be argued, as we will do, that having a longer Parliament gives the House of Commons more time to scrutinise what the Government are doing. That is a perfectly good argument to use if Parliament is doing its job properly. At least, if one knows when a general election is going to be, one of the democratic outrages of Parliament, the wash-up, will not take place That is when Bills which have often had little or no scrutiny are nodded through behind closed doors by the parliamentary parties, leading to a lot of bad legislation. If the wash-up is done away with, that is a good thing.

The clash of election dates is a very important issue which we will have to discuss. I do not believe that the new system will, as the noble and learned Lord, Lord Falconer, suggested in different words, allow the Prime Minister to fiddle when he wants an election anyway, because discussion on it will have been taken out of the context and dynamic of the politics of the time.

I hope that we will not have a major trial of strength over this Bill. There are very important issues to discuss. It may take some time to scrutinise the Bill in Committee, but I hope that it will all be done constructively on both sides. I have great confidence that the Government will be prepared to approach it in that way. I hope that the Opposition will do so, too.

Parliamentary Voting System and Constituencies Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 8th February 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, the government amendments give expression to a widespread feeling in the House, which I share, that there should be some oral procedure in the Boundary Commission’s decision-making process. The amendments give the political parties and members of the public the opportunity to give evidence, to make representations orally and in public, to develop written submissions that have already been submitted and to put forward arguments orally.

The system proposed by the government amendments achieves that in a way that is proportionate, reasonably economical and reasonably expeditious. It avoids effectively dividing the decision-making process between the recommendation of the chair of a public inquiry and the final recommendation of the Boundary Commission itself. The amendments allow for two-day hearings across the whole country, which the Boundary Commission must take into account. They have at their heart a trust in the Boundary Commission and its decision-making ability that is, in our submission, in no way misplaced.

The proposals offer a transparent system with the public having a genuine and adequate chance to participate at every stage, whereas the amendments put forward by the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Bach, would, I suggest, revert to a cumbersome system of public inquiries that has often led to the whole system becoming bogged down. Those inquiries may be as long as four months. That is not expeditious.

Further, in answer to the point made by the noble and learned Lord, Lord Lloyd of Berwick—one which, with the greatest of respect, the noble and learned Lord, Lord Woolf, did not adequately deal with in his speech—they open up a dual decision-making process with different and distinct decision-making stages. I give way to the noble Lord.

[Lord Foulkes of Cumnock]

My Lords, I am sorry to interrupt but I have taken part in a number of hearings in Ayrshire. In one case, the assistant commissioner recommended something which was accepted by the Boundary Commission; and in another a different commissioner recommended something that was not accepted by it. The decision of the Boundary Commission is always final.

[Lord Marks of Henley-on-Thames]

My Lords, that is precisely the point. The intervention of the noble Lord illustrates that the Boundary Commission makes decisions, taking into account recommendations of the commissioners that may be inconsistent, which negates the importance or effect of the public inquiries. Amendment 43 empowers the assistant commissioner to,

“adjudicate between the arguments and to make a final recommendation on proposed boundary changes”.

As the noble Lord, Lord Foulkes, explains, there is no explanation anywhere of how that would work or what the precise status or effect of the recommendation would be. Presumably, as he says, the Boundary Commission would have to take that into account but that would—again with respect to the noble and learned Lord, Lord Woolf—open up the public hearings or inquiries to judicial review, possibly not as to the content of the recommendation but as to the procedure adopted before the public inquiry.

Then there would be the difficulty that any departure by the Boundary Commission from the recommendation from a public inquiry would be challengeable as irrational. That itself would be fruitful grounds for judicial review hearings. The amendment does not state how these problems would be dealt with. I give way.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords and noble and learned Lords who have participated in this important debate. It has been a good and helpful debate, with views forcefully expressed but set out in a measured way. There is some agreement that we want to find the best way to achieve effective consultation on Boundary Commission proposals. However, it has also become clear—I made this point when I opened the debate and it was reflected on by my noble friend Lord Faulks—that the issue very much represents a choice of culture. Will we have what is essentially the old system of the local public inquiry—albeit with some timetable improvements; and I acknowledge the efforts made there—or a change of culture towards the public hearings proposed in the Government’s amendment? My noble friend Lord Faulks indicated that our proposal goes with the grain of making arrangements for similar matters to be dealt with.

The process we have set out combines written representations with a new public hearing stage aimed at providing for real public engagement, and involves a counter-representation stage to allow for scrutiny. We believe that that adds up to a comprehensive and rigorous process which learns the lessons of previous reviews and allows us to achieve the key principles of the Bill, whereby constituencies will become more equal and fair and their representation in the other place will be reflected by the time of the 2015 election.

It was suggested by the noble and learned Lords, Lord Falconer of Thoroton and Lord Woolf, that the representations made at an oral hearing would disappear into the ether. However, it is it is important to recall that not only after the end of the period will there still be an opportunity for follow-up representations, but, in response to amendments in Committee from the noble Lord, Lord Lipsey, there will be an opportunity for counter-representations to be made. It is a requirement set out in the amendment that the Boundary Commission shall give consideration not only to the written representations and counter-representations, but to the record of those who engage in the oral hearings.

The process that we propose is a considerable departure from the original proposals in the Bill. That was acknowledged by the noble and learned Lord, Lord Woolf. The Government have listened to the reasonable concerns on the importance of public engagement, not least at the first review under the new rules. We have listened to the argument that our process could be strengthened if there was an opportunity for the scrutiny of arguments put forward by others. We have shown that we are willing to move in the interests of a better outcome, but not at the cost of the key principles of the Bill. That cost would include delays that could undermine those principles.

The opposition proposals—whether those of the noble and learned Lord, Lord Falconer of Thoroton, or the suggested changes to the Government’s amendments—would, in effect, restore the existing inquiry process. They require a legally qualified chair and a report back to the commissions by the legally qualified person—we have had exchanges on whether there are to be two decisions or two determinations. The opposition proposals would remove the time limit on the number of days an inquiry will last. Those old-style inquiries would take place after the submission of written evidence, as they do now—albeit for a slightly longer period—in order that the parties can send their lawyers and that their legally qualified person in the chair can cross-examine them.

Even the noble and learned Lords among us can imagine that that process is unlikely to engage the general public at large. The work of academics who have researched these issues in depth means that we do not have to imagine what that would mean, because the evidence is in their reports. An in-depth study by Ron Johnston, David Rossiter and Charles Pattie in 2008 stated:

“It would be a major error to assume that the consultation process largely involves the general public having its say on the recommendations. The entire procedure is dominated—in influence and outcome if not in terms of the numbers of representations and petitions (many stimulated by the main actors)—by the political parties”.

There has been a flavour of the political parties’ heavy engagement.

It has also been said that somehow or other the public inquiry system assuages pent-up local demand. Before I came to the Chamber this afternoon, I looked at the last Boundary Commission review of the constituencies for the Scottish Parliament. In the case of East Lothian, Midlothian and the Scottish Borders, the inquiry process, which led to a recommendation from the reporter, who I think was Sheriff Edward Bowen QC, was completely and utterly dismissed by the Boundary Commission. I am not sure what that would do to promote public confidence in the system proposed by the Opposition.

[Lord Foulkes of Cumnock]

Will the Minister confirm that there was no application for a judicial hearing in relation to that? Everyone accepted it.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My Lords, I was swithering about whether to speak to Amendment 25A in my name and Amendment 26 in my name and that of my noble friend Lord Campbell-Savours. I got to my feet only because of the demands of the noble Lords, Lord Rennard and Lord Tyler, who said that they missed my contributions to this debate. I am very pleased to do this request number, as it were.

However, it is very important, as my noble and learned friend, Lord Falconer of Thoroton, said, to get as accurate a register as possible on which to carry out the revision of the boundaries. I am sure the Liberal Democrats would agree with that. They might not agree with our solutions and prescription, but I am sure they would agree with the thesis that it is important to get it as accurate as possible. My noble and learned friend Lord Falconer has suggested one option. These two amendments suggest two more. Amendment 25A suggests using the census, which fortuitously will come in 2011 and will give us a figure for those who are eligible to vote, together with updates that are available. My noble friend Lord Maxton commented in Committee on how the register could be updated.

Amendment 26 is even simpler. It would use those who are eligible to vote, not necessarily all those on the register. In Committee it was suggested that there might be some problems about identifying the numbers. With respect, I do not see how there can be when the Government cite the percentage of those in an age group who are registered. If they are able to give a percentage that is registered in each group in each constituency, they must know the number who are eligible. It would be far fairer to use figures that are more accurate and up to date, as my noble friend Lord Campbell-Savours said. I hope the Minister will respond to those two points.

[Lord Howarth of Newport]

My Lords, we all endorse the ambition to achieve equality between constituencies, although on this side of the House we consider that there are other factors that have been too much discounted by the Government in their proposals. However, there is the very serious question of whether the flawed data that the electoral registers provide undermine this project of seeking equalisation between constituencies. Research by Dr Roger Mortimore, investigating the 2009 electoral registers across eight study areas, found variations in the completeness of the electoral register in a range of 73 per cent to 94 cent. In some constituencies the register was thought to be that incomplete; only 73 per cent of those who should have been on the register were. His study of the accuracy of the register in those same areas found a variation of between 77 per cent and 91 per cent. In the worst instances, which could be some 50 to 100 constituencies in which the condition of the electoral register is seriously inadequate, it must cast doubt on whether the Government are realistic in seeking to achieve equality.

While we would in no way wish to discourage them from seeking to achieve equality between constituencies, we very much hope that they will conduct an energetic drive throughout the country to ensure that electoral registers are both complete and accurate. They can do this outside the terms of the legislation, so even if they do not accept these amendments they will still be free to do this if they wish. It will not be enough if they respond by saying that moving to individual registration should make a substantial contribution to solving the problem, because individual registration will improve accuracy but will certainly not improve completeness. A substantial problem will remain.

I certainly think, as we suggested in Committee, that a serious effort should be made to absorb the findings of the census, which is to be carried out next month. It would be possible for those concerned with drawing up electoral registers to begin to take account of interim findings from the census, and they should do that, just as the Government intend to use other databases to help to improve the completeness and accuracy of the register.

As it is, we are conducting this immense and controversial process of redrawing constituency boundaries on a principle that cannot in practice be carried through, given the serious inadequacy of registration. I hope we will hear from the noble Lord, Lord Strathclyde, that the Government have practical proposals as to how they will improve the condition of the registers to fulfil the objectives that we share on all sides of the House.

--- Later in debate ---

[Lord Howarth of Newport]

I am hugely relieved as a result of my noble and learned friend’s intervention. However, I do not think that we should lean particularly on the Boundary Commission; it is not for Governments or politicians to suggest a desirable norm for the precise number of constituencies. Just as we would deplore the regimes of other countries whose practices we considered to be seriously illiberal determining the number of constituencies, so we should not do so here. I acquit my noble and learned friend of any such exact intention, but it is important that no one should suffer from the same misapprehension of his purposes as I did.

[Lord Foulkes of Cumnock]

My Lords, I want to say a few words in support of Amendment 18H. I am sure that the Minister will say that it is defective in some way. If it is, I must apologise, but it had to be written rather quickly because of this very short period between Committee and Report, which has created tremendous problems.

Understandably, the noble Lord, Lord Strathclyde, and I have affection for nice round figures. I can quite understand why he is attracted to 600. However, he has never produced a logical argument for that figure. It was alighted on; it was plucked out of the air. This amendment, which is in my name and that of my noble friend Lord McAvoy, suggests that the figure should be between 600 and 650. The exact figure should be recommended by the Boundary Commission following consultation with all interested parties and then approved by Order in Council, or by Parliament by some method, in time for the general election in 2015. I am not suggesting anything that would hold up this review, which should be completed in time for the general election. The Boundary Commission—I should say the Boundary Commissions, to allow for Scotland, Wales and Northern Ireland as well—should consult and come up with a figure that they consider more appropriate, taking account of all factors. I considered whether the Electoral Commission should be the body to deal with this, which may be something for discussion.

As was said in Committee, it is unique, unparalleled and regrettable when a Government decide the number of those elected to the main Chamber of Parliament. It is quite outrageous for this to be suggested. My amendment would take it out of the hands of the Government and put it in the hands of a body with some degree of impartiality and respect that can take account of the wider view. The decision will still come back to Parliament and will be agreed in time for the election in 2015.

I also thought that this might be attractive to the Liberal Democrats. On the one hand, you have 650 as an option, while someone else might suggest 600; usually the Liberal Democrats like somewhere in between and this allows for that. However, the Liberal Democrats do not seem the same as they were in the old days, when, as I remember well, they used to like these kinds of compromises and halfway houses where human rights were so important and democracy was considered to be an important element. These days, we see them trooping through in astonishingly rigid and disciplined fashion. The Liberal Democrat Whips must be by far the most successful and powerful Whips anywhere in this Parliament. They march their Members through with astonishing ruthlessness, following this great mantra set down by Mr Nicholas Clegg, who has returned from his expedition in Europe and encourages us to follow some of its patterns of activity.

I am straying. If there was a Speaker with powers—as there ought to be, by the way—he or she, more likely she, would tell me that I was entirely out of order, as indeed I am, so I had better stop.

Parliamentary Voting System and Constituencies Bill

Lord Foulkes of Cumnock Excerpts

Monday 7th February 2011 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, can my noble friend comment on the concern expressed north of the border about the coincidence of the referendum and the elections to the Scottish Parliament, and the difficulties that returning officers will have in ensuring that the count is available? The results may not be available on the Friday and be delayed. Will this be a problem, and have the Government any plans to avoid the difficulty whereby Members of the Scottish Parliament will not know for some time whether they have been elected and the position of the Administration in the Scottish Parliament, because of the difficulties of counting both polls at the same time?

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

The noble Lord, Lord Foulkes, has an amendment later that will give us an opportunity to discuss the linkage of polls. I repeat what I said in Committee last week: it is certainly intended that the votes for the Scottish parliamentary election will take precedence over the counting of the votes in the referendum. Inevitably, there will have to be verification, because Scottish election votes may be found in ballot boxes intended for the referendum. It must be for returning officers and counting officers to determine their own arrangements, because issues of tiredness have come up in the past. It is certainly anticipated that we will not have to wait until Saturday for a result.

My noble friend Lord Forsyth expressed concern about the forming of an Administration. I have been involved twice in forming an Administration after a Scottish election. If the result had been known on the Saturday or even the Sunday, it would not have made much difference. However, that is by the way, because the intention is that the counting of votes for the Scottish election will take priority over the referendum.

--- Later in debate ---

[Lord Wallace of Tankerness]

I will add that they should also be delivered accurately. Therefore, this is a matter for the returning officers and counting officers, who are best placed to judge whether counting should start immediately or the following morning.

[Lord Foulkes of Cumnock]

For once, I agree 100 per cent with the noble Lord, Lord Forsyth—the noble Lord, Lord Baker, looks very worried. I draw the attention of the noble Lord, Lord Forsyth, to Amendment 5F on page 3 of the revised Marshalled List. If the Government were willing to accept the amendment—or even better, if the Committee were to accept it—that would deal with what the noble Lord, Lord Forsyth, wants, for exactly the reasons that he put forward, which are sound and sensible.

[Lord Wallace of Tankerness]

My Lords, we will return to this issue when we debate Amendment 5F. I look forward to the contributions of the noble Lord, Lord Foulkes, when he moves it, and of my noble friend, Lord Forsyth. We will debate this more fully at a more appropriate time.

--- Later in debate ---

[Lord Campbell-Savours]

My noble friend might ask, “What’s wrong?”, and there may well be people in the Labour Party all over the country repeating, “Yes, what’s wrong?”. I will tell you what is wrong: we know it is wrong. We know if we were being reasonable, we could never have cut back the Conservative Party to 110 seats in 1997. It would have been a ludicrous result, producing, as the paper states,

“less than 19 per cent of seats in Britain compared with their vote share of 31.4 per cent”.

So here we have it. This system, we are told, is about fair votes; it is about somehow matching the number of seats with the votes cast in a general election, turning out in 1997, in the Labour landslide victory, 19 per cent of seats in Britain compared with their vote share of 31.4 per cent. That is a huge difference, and it is wrong that we should be introducing a system that potentially can lead to results on that scale.

“Such an outcome would be the most severe under-representation of the Tories in British history. The biggest reduction in Conservative seats would occur in the south west”.

It might well be there would be those who would argue, “Well, they are only Conservative seats that are being lost”, but it works both ways because AV exaggerates results and swings. You can get huge swings against a party which could just as well be the Labour Party and we, too, could be reduced to a rump. The Conservatives have simply failed to understand the dangers inherent in the system they want to introduce.

The paper goes on to point out:

“Under SV the Liberal Democrats would have won another 38 seats on top of their existing 46”.

We now know why they want to introduce the system. It clearly distorts. Then what does it say?

“Under SV Labour would also have gained 17 more seats, buoyed up by extra transfers from supports of eliminated Liberal Democrats, further boosting their already disproportionate majority, giving them over 68 per cent of British seats in Parliament on the basis of 44 per cent of the vote”.

This is this super system that we are introducing. This is the system we are told is fair votes. On the basis of the 1997 general election, the landslide victory for Labour, we would have won over 440 seats. What a ludicrous system. What a ludicrous proposition has been put before Parliament.

I go back to the amendment and the question posed by the noble Lord, Lord Newton of Braintree. People have not done their homework, and something needs to be done about that. We need a referendum question that invites people to say no to first past the post. Then let us get the inquiries established because the homework has not been done.

On the classic Queensland AV, the authors go on to say,

“We assessed AV’s impacts by examining whether the tiny differences in second preferences from the SV ballot would have changed any of the SV simulation outcomes in any constituency but we could not identify any such cases”.

The proposition before the House is that we do something we should not be doing. The Tory Government should stop this, and stop it now. We are on Report. They should go away and come back at Third Reading having fully considered the implications of the Dunleavy work from 1997. I know that the Minister will get up and say, “It doesn’t matter. It’s all gone through. It was approved by the House of Commons”, but they did not know what they were doing. They did not understand the implications of this system. We are dealing now with a major change in the constitutional arrangements of the United Kingdom. If we produce exaggerated results that would have given Labour 444 in 1997 and a massive majority much larger than we actually had, we are making a major error, and I appeal to the Government to think again before it is too late.

[Lord Foulkes of Cumnock]

That was a very powerful speech by my noble friend Lord Campbell-Savours. He certainly does his homework very effectively. Like him, I wish that some Members of Parliament had done it. In the past few weeks, I have listened to a number of Conservative Members of Parliament and to some Labour Members of Parliament, and I am not sure that they know exactly what they voted for and its implications not just in terms of the voting system, as my noble friend Lord Campbell-Savours said, but of the reduction in the number of Members from 650 to 600. That is something we will come to later. The purpose of a revising House is to try to draw attention to this, so I am really grateful to my noble friend Lord Campbell-Savours, as I am sure the House is.

I want to raise one point. What can we do to stop this misapprehension that everyone elected under this system of AV has achieved the support of 50 per cent of the electorate? We discussed this in a previous debate, and I think it was my noble friend Lord Rooker, in his usual eloquent way, who pointed out the various systems. As I understand it—I am open to be corrected if I am wrong because I do not want to go on if I am—if the system used is that everyone is required to use all their votes, so that if there are 10 candidates, they vote from one to 10, that does apply. However, as I understand it, in the system that has been proposed and that we are being asked to approve, that is not required. You can vote one, two or one, two, three or one, two, three, four and so on—

[Lord Grocott]

Or just one.

[Lord Foulkes of Cumnock]

Or just one, which my noble friend Lord Grocott and I would prefer. Yet again last week, in spite of the fact that this House has said it on a number of occasions and other people have said it, the Liberal Democrats—and I absolve the Tories of this—were saying, and the Guardian was repeating, that everyone elected under the system being proposed will have the support of 50 per cent of their constituents. That is manifestly untrue, and it is about time that the Liberal Democrats stopped spreading these lies.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Campbell-Savours, has moved an amendment which would change the referendum question to ask voters whether the supplementary vote system should be used instead of first past the post rather than the alternative vote system. It will come as no surprise, because it is the content of the Bill, that the Government are committed to providing for a referendum to be held on whether the alternative vote system should be introduced for elections for the other place. We had these debates on a number of occasions in Committee.

I know the noble Lord, Lord Campbell-Savours, has a degree of authorship of the supplementary system that is used in the London mayoral election. We have heard on a number of occasions his concern about the alternative vote provisions in the Bill. It is always very invidious to say how people might hypothetically have voted when that was not the system that was used. The comments made by the noble Lord and the noble Lord, Lord Foulkes, were quite legitimate points to be made in the referendum campaign, when the parties and the different participants will take their own view about the merits and demerits of the alternative vote system. I can confirm that under the provisions in the Bill, which the noble Lord, Lord Foulkes, accurately described, voters may express a preference for as few or as many candidates as they wish or, indeed, for one. As the noble Lord rightly said, that could mathematically mean that not all Members elected to the other place had secured 50 per cent. As we debated last week when we were considering the material now on the website of the Electoral Commission for discussion, which will be sent out to stimulate interest and to explain the proposition before the voters on referendum day, that point is made in the material that it will be putting out.

Clearly the noble Lord’s amendment to adopt the supplement vote system will limit voters’ choice in expressing preferences for candidates standing at the election as they would be able to express a preference for one or two candidates only. The Government are not persuaded that the AV provisions in the Bill should limit the number of preferences that any voter may express at an election. We consider that not limiting the number of preferences that a voter may express under the alternative vote will enable MPs to be elected with a broader level of support, although I make the qualification that as you can cut off and do not need to vote for everyone, it will not necessarily mean that an MP will achieve 50 per cent.

As my noble friend Lord Strathclyde explained in Committee, the Government believe that the optional preferential form of the alternative vote is the right form of AV to be put before the people. For elections to the House of Commons, voters will be able to express preferences and should be able to express as many or as few preferences as they choose. They should not have their ability to express preferences constrained in the way proposed in the noble Lord’s amendment. The optional preference form of AV avoids voters being forced to vote positively for political parties that might be distasteful to them, such as those on the extremes of politics. There is no indication in the amendment about how in detail the supplementary vote system would work. The attraction of the Bill as it stands is that for all the arguments that might take place about how AV works, the Bill sets out that process in Clause 9 and Schedule 10. Questions about how AV works can be resolved by looking at the Bill. That would not be the case with the amendment, which lacks clarity. I therefore urge the noble Lord to withdraw it.

--- Later in debate ---

[Lord Touhig]

My Lords, briefly, my Amendment 5B would leave out subsection (2) and prevent the AV referendum being held on the same day as the Welsh Assembly elections. As in other parts of the country, the people of Wales will face voter fatigue. On 3 March, as my noble friend Lord Howarth has mentioned, we have the referendum on more powers for the Welsh Assembly. That is very important; it could change the way in which the Assembly works in its relationship to the Government and Parliament and might have long-term implications for our constitution. On 5 May, we have the elections for the Welsh Assembly, and now the Government want to hold the AV referendum on that date as well.

It is with a heavy heart that I say to the Government that throughout this debate they have shown nothing but contempt for Wales and its people. Wales is to lose one-quarter of its parliamentary constituencies. Twenty per cent of the whole reduction in the number of parliamentary constituencies throughout Britain is expected to come from Wales. However, despite our debate on Wales, which some noble Lords said was the best debate we had in the House throughout this Bill, the Government were not prepared to move. I say to the noble Lords on the government Benches that Wales is not a colony run by governors-general. We are used, with the exception of the noble Lord, Lord Crickhowell, to Conservative Secretaries of State who do not represent Welsh seats sitting in London in government, but Wales is not a colony. We are part of the United Kingdom and a nation in our own right. We deserve to be treated better than this.

The Government have so far been unwilling to move. If they are not prepared to move on this matter, households in Wales will, over the next few months, face a deluge of material through their letter boxes—material saying yea or nay to more powers for the Welsh Assembly, material for the Assembly elections from all the parties and material saying yea or nay to AV. Our National Assembly is still young and still growing. It still has a long way to go to win the hearts and minds of the people of Wales and establish itself in the way that its Members would wish. However, its role may change even further after the referendum on 3 March. We should give the Welsh Assembly election the dignity and status it deserves. It should be held alone, without any other election that day.

What really annoys me about this whole issue is that the Conservatives do not support AV; the Prime Minister says that he will campaign against it. The Liberal Democrats do not support AV; their leader has described it as a “miserable little compromise”. Yet such is the Government’s opinion of Wales that they are prepared to treat its people in this most disrespectful manner and push through holding a referendum on AV on the same day as the election for the Welsh Assembly. I say to the noble Lords on the other side only that if they persist in this way, the Conservatives and the Liberal Democrats will pay a heavy price come the next election—and they will certainly deserve to.

[Lord Foulkes of Cumnock]

My Lords, that is almost a reason not to support the amendment to which my noble friend Lord Touhig has spoken. I will say just a few words in support of Amendment 5D in my name and that of my noble friend Lord McAvoy. As my noble friend Lord Howarth said, the Scottish Parliament, by a substantial vote of 90 to 30, called on this Parliament and the Government not to hold the referendum on the same day as the elections to the Scottish Parliament. The Prime Minister Mr Cameron, when he was elected, spoke about an agenda of respect—of mutual respect—for the Scottish Parliament. However, one of the first things that the Government did was to ignore the views of the elected Scottish Parliament—the people who know best because they are there on the ground and will campaign in the election. That is one strong argument in favour of the amendment.

The second is that there will be two confusing campaigns. In a previous debate, when I indicated my total support for the sane and sensible remarks of the noble Lord, Lord Forsyth, even Members of this House drew a sharp intake of breath at that unusual alliance. That alliance will be there again—campaigning in Scotland against AV, which the noble Lord, Lord Forsyth, and I are both against. However, we will be campaigning on opposite sides in the Scottish parliamentary election, and that will cause confusion. I use the noble Lord, Lord Forsyth, as just one example. There will be many such people. Indeed, I previously said that the noble Lord, Lord Strathclyde—whom I remember saying he was against AV early in the debate—and I could be tramping the streets of Mauchline together on the same side in the referendum but on entirely different sides in the campaign for the Scottish Parliament. That will cause confusion. The posters will be confusing, as will the campaign with loudspeakers. I am not allowed to repeat arguments but, as I said previously, the two campaigns will cause confusion.

My last point is about the franchises. I have made the point before but will make it in a different form now because the Ministers have still not addressed it. There will be difficulty in dealing with two substantially different franchises when in Scotland, as my noble friends know, many Polish, German and French people will be entitled and able to vote in the Scottish Parliament election but not in the AV referendum. It will cause great confusion, which would not arise if the polls were not held on the same day. Respect for the views of the Scottish Parliament and the confusion caused by two campaigns and two franchises are very powerful arguments that should make the Government think again.

[Lord Dubs]

My Lords, my noble friend Lord Knight and others have indicated clearly why it is not appropriate to hold the referendum on the same day as these other elections. My amendment refers to Northern Ireland, and I briefly add a Northern Ireland dimension to further the arguments that have already been made. I remember, about 11 years ago, the referendum in Northern Ireland on the Good Friday agreement. It also took place in the Republic on the same day. The build-up to that referendum was enormous. Everyone in Northern Ireland knew what the issues were. A brochure on the Good Friday agreement had been put through their door. Friends of mine who lived there discussed at home how they would vote in the referendum. It was very clear. It was a single issue and one of crucial importance to the people of Northern Ireland.

I contrast that with what will happen this time. Very important elections for the Northern Ireland Assembly and for district councils are to take place in Northern Ireland. A great deal has happened since the last Assembly elections to the balance of power between the DUP and the Ulster Unionists and so on. These elections will be very important and rather different in tone, content and substance from a discussion on the voting system for general elections.

The political parties in Northern Ireland are also entirely different from those here. I am not sure where the Conservative Party and the Ulster Unionist Party will stand in the future. They were together at the previous general election; that agreement may or may not last into the future, but this is not the occasion to debate that bit of folly. The parties are different, so there is no carry-over from, say, Lib Dem policies to what will happen in the referendum.

As was mentioned earlier in a brief discussion between the noble Lord, Lord Alderdice, and the noble Lord, Lord Reid, the voting systems in Northern Ireland are different anyway. STV is used for both the Assembly elections and, as the noble Lord, Lord Alderdice, said, the district council elections. The starting point is very different, and that is what will be in people’s minds—not the election process for general elections. The possibility of confusion will be enormous. The Northern Ireland argument is at least as strong as, if not stronger than, the arguments that have been put forward by my noble friends. It will be confusing and I do not think we should do it.

--- Later in debate ---

Moved by

[Lord Foulkes of Cumnock]

5F: Clause 4, page 2, line 40, at end insert—
“, but the count for the Scottish parliamentary general election shall not be delayed as a consequence of the combination of polls.”

[Lord Foulkes of Cumnock]

My Lords, I move this revised amendment in substitution for the original Amendment 5F. I thank the Clerks in the Public Bill Office for helping me to revise the amendment and bring it into order. It appears before noble Lords rather late in the day, but that would not have happened if there had been the normal period between Committee and Report stage. I hope that the House will forgive me for moving this revised amendment. I am most grateful to the Clerks for their speedy revision on my behalf.

Last Monday, following a report in the Scotland on Sunday, I said that there was great concern throughout Scotland that—as the noble Lord, Lord Forsyth, said earlier, and as my noble friend Lady Liddell of Coatdyke has also said—if the count is not taken immediately after the close of polls in the Scottish parliamentary election, some of the excitement, and a speedy follow-up with the announcement of the result, could be lost as a result. As noble Lords who have participated directly in elections will appreciate, the public’s interest in the election is important. It is an entirely separate issue, as the noble Lord, Lord Forsyth, pointed out, from the question of whether the count for the parliamentary election is held before the referendum count. We accept the sequence—the noble Lord, Lord Wallace, explained it on a previous occasion, although it is the subject of another amendment in this group—and we accept the explanation. The question relates not to the order in which the counts are taken but to their immediacy.

As noble Lords from Scotland will know, I am not one to kowtow to the Scottish media—far from it. There are some people in the Scottish media for whom I have great respect. There are others for whom I do not. Nevertheless, it is an important part of elections that, immediately after the casting of votes, people go to the count with adrenaline coursing wherever adrenaline courses. They take part in the count and see the way things are going, and the result—in particular in Scotland in the 73 first past the post constituencies. As the noble Lord, Lord Forsyth, rightly said, after this election there may not be a coalition that will take some time to form; there may be a clear result. The way that the polls are going, with a substantial lead for Labour, a clear result is becoming more likely. People will want to know how things are going in the constituencies.

This would not be an issue, but some—although not all—returning officers have said that it will be difficult to carry out the count immediately because the counters will be too tired. They may have been polling officers in polling stations before moving on to do the count. Of course, that problem can be dealt with if different people are used for the count. Fresh people can be brought in, if necessary, so that we get the result. The candidates, agents and supporters of the parties will stay up late into the night for the results to come through. It is part of the British and Scottish tradition that we see the results come through. The TV will cover it. It will get more people interested in the Scottish elections and make them more likely to take part in future.

[Lord Forsyth of Drumlean]

Perhaps I have misunderstood this. Obviously the noble Lord has studied it more carefully than I have. Perhaps he can explain why this could not be resolved simply by having two ballot boxes, one for MSPs and one for the referendum. Would that not resolve the problem of tiredness? I do not think that people will be waiting anxiously for the result of the poll on AV.

[Lord Foulkes of Cumnock]

That question was raised on a previous occasion in Committee. The Minister—I think it was the noble and learned Lord, Lord Wallace of Tankerness—said the problem was that some electors might inadvertently put a ballot paper for the election into the ballot box for the referendum. The noble Lord, Lord Forsyth, sighs and shrugs his shoulders, but that was the explanation given by the Minister. I agree that the first thing that needs to be done is the validation of ballot papers. However, once they have been validated, which should not take very long, the referendum ballot papers can then be put aside for whenever that count will take place, and the count can be started of all the ballot papers for the Scottish Parliament elections. I do not think that opening ballot boxes and verifying ballot papers will cause much delay. It will delay things a bit, but not as much as stopping the count altogether and starting the next day, which is what some returning officers have suggested.

[Lord Forsyth of Drumlean]

I return to the point about people putting ballot papers in the wrong boxes. Surely it is not beyond the wit of returning officers to organise a polling station in such a way that that is avoided.

[Lord Foulkes of Cumnock]

I agree with the noble Lord. I was going to say “my noble friend”: that is the way things are going. There are some strange bedfellows already in the coalition, but I am not suggesting that there should be any others. If the amendment is passed, accounting officers and returning officers are more likely to ensure that all the ballot papers go into the appropriate boxes. It will put greater pressure on them if, in the terms of my revised amendment,

“the count for the Scottish parliamentary general election shall not be delayed as a consequence of the combination of polls”.

If that is agreed by this House and by Parliament, that would put pressure on the returning officers to make sure that people cast their votes in the appropriate ballot boxes.

[Lord Kilclooney]

My Lords, if the count for the Scottish Parliament gets priority over the count for AV, does that mean that the results for AV in Scotland will be revealed much later than the results for AV in England?

[Lord Foulkes of Cumnock]

No. In England, Northern Ireland and Wales, the sequence is that the AV count will follow. The sequence is the same in each part of the United Kingdom. I propose not to change the sequence but to bring further forward the AV count in Scotland, because we will have the Scottish parliamentary election count earlier. If that takes place immediately, the AV count will be brought forward. This excellent amendment has that limited advantage as well. I am most grateful to the Public Bill Office for advising me. Strong views on this are held in Scotland. I know that the noble Lord, Lord Strathclyde, who is replying to this debate, takes as much interest in the Scottish parliamentary elections as I do. I have seen him at counts in Ayrshire on occasions. Usually I am smiling and he is not, but I am sure that he will not worry about that and will give the amendment sympathetic consideration.

[Lord Lipsey]

My Lords, my Amendment 35 in this group has much the same purpose, namely to deal with the worries that have been expressed in the Scottish press and in this House about the count in Scotland. It has had the effect of flushing out some reassurance. The Electoral Commission has publicly stated that instructions to the returning officer in Scotland will be that the count on the AV referendum is not to start until 4 pm. There may still be a case for putting this in the Bill. I look forward to the Minister’s response to this short debate.

--- Later in debate ---

[Lord Strathclyde]

My Lords, different bodies have said different things on different occasions. We are entirely happy that we have the confidence of the Electoral Commission and other bodies to do it in this way.

The noble Lord, Lord Kilclooney, asked about later announcements—how they would be made across the United Kingdom and whether they would all be made at one point. I can confirm to the House that there will be one announcement for the whole of the United Kingdom. That is one of the reasons why the Electoral Commission is organising the counts.

Any provision that seeks to add specific provisions to the timing of the count may well be complex and would be apt to confuse administrators at this late stage. It is likely that any amendment would need to be replicated for each election on 5 May. We have a clear statement of government policy and the clear view of the Electoral Commission. I hope that that is sufficient for the noble Lord, Lord Foulkes, to withdraw his amendment and for the noble Lord, Lord Lipsey, not to move his.

[Lord Foulkes of Cumnock]

I have received the Minister’s response with mixed feelings. He prays in aid of Lord Gould—it was the noble Lord, Lord Martin, who mentioned Lord Gould—and I remind him that, although the noble Lord, Lord Tyler, was shaking his head, the noble Lord, Lord Forsyth, was right to say that Lord Gould recommended that the polls should be separate.

[Lord Martin of Springburn]

The person I referred to was not the noble Lord, Lord Gould; he was a Canadian gentleman. He certainly was not a Lord.

[Lord Foulkes of Cumnock]

I have a noble friend Lord Gould, whom I absolve of any responsibility for this.

Mr Gould, the Canadian, suggested that the elections should be separated. In fact, the Scottish Parliament took a decision to delay the local government elections for a whole year as a result of that and suddenly it finds the referendum spatchcocked in to create extra problems for it. Although extra problems will be created, they are not in any way as bad as the problems described by the noble Lord, Lord Martin, where the electronic counting came on top of the voting on two ballot papers, one of which was the most confusing I have ever seen in my lifetime—and I have seen ballot papers in the Soviet Union, the United States of America and elsewhere. It was a crazy ballot paper. I hope and expect that these ballot papers will be simpler and that the count can take place.

I am disappointed that the Minister still presses that the count should not be held overnight. I am worried that the chief counting officer will have responsibility for this. As I understand it, the chief counting officer is the chair of the Electoral Commission. What the noble Lord, Lord Martin, said about the Electoral Commission will be echoed by a number of Members in this Chamber. However, it has improved with the recent addition of political members and, I hope, will now be more sensitive.

Notwithstanding what the Minister has said, I hope that the chief counting officer and the chair of the Electoral Commission will have heard this debate loudly and clearly and will recognise the pressure to have the count overnight, not only from this House but also from all political parties in Scotland. Although I accept that, as the Minister said, it may not be best to have that written into the Bill, I hope that it will be taken into account—otherwise the chief counting officer will be even more unpopular in Scotland than Mr Alex Salmond. I beg leave to withdraw the amendment.

Amendment 5F withdrawn.