Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Faulks]

My Lords, I support the amendment. As the noble Lord, Lord Pannick, explained, the current drafting is a change from the wording of the Access to Justice Act 1999 and the amendment makes it clear that the Lord Chancellor has an obligation to secure the access to legal services that meet the needs of the individual. That was recommended by the House of Lords Constitution Committee, although the amendment contains an important modification in that there is a qualification that the provision of legal aid must be on the basis of resources,

“made available in accordance with this Part”—

Part 1. In other words, there is no absolute requirement on the part of the Secretary of State to make legal aid available regardless of the financial situation.

I understand the purpose behind the Bill, which is, first, to save approximately £350 million as a contribution to reduction in expenditure generally and, secondly, to make some important changes to the litigation system as a whole. Although legal aid and the amendment are concerned with Part 1, it cannot be viewed in isolation, particularly not from Part 2, which brings about changes in current conditional fee arrangements. The need for those changes is clear. As recently as yesterday, a Court of Appeal judge observed at the end of the case that it was another case in which,

“the existence of a conditional fee agreement has made it practically impossible to obtain a settlement”.

He went on to observe that, ultimately, it is the public who pay for these things, either through higher premiums, or through the unwarranted expenditure of public resources.

Access to justice means satisfactory access not just for claimants but also for defendants. My reading of the purpose of some of the amendments put forward by the Front Bench of the party opposite is that they are intended substantially to maintain the status quo. This is somewhat surprising in view of the widespread acceptance of the undesirable effects of the current system, not least by Mr Jack Straw, former Secretary of State for Justice, in debates in the other place. I suggest that some of these amendments will actually impede access to justice.

There is an additional benefit from this amendment, apart from the clarity that I hope it provides. Our law is generally subject to the Human Rights Act—in particular, Article 6 of the convention, which provides for the right to a fair trial. How an individual state decides to reflect this principle in its provision of legal aid or some other form of assistance is, I suggest, very much for that state to decide, and it should be well within the so-called margin of appreciation—theoretically, at least—permitted by the courts in Strasbourg. There have been cases where in one context or another the lack of legal aid has been found to violate Article 6, although it might be said that the jurisprudence in this area lacks some coherence. However, this amendment should make such challenges far less likely to succeed in that there is a clear statement of the Lord Chancellor’s obligation and, contained within it, a sensible acknowledgement of the limits provided by available resources.

The Lord Chancellor said in an interview with the Guardian, published yesterday, that the Bill was concerned with,

“protection of fundamental rights of access to justice for critical issues that no civilised society can do without”.

I suspect that all in your Lordships’ House would agree with that aim. It is an aspiration that should inform our debates on the Bill in Committee in the weeks to come, and I suggest that this amendment is a good beginning.

[Lord Howarth of Newport]

My Lords, the Constitution Committee did us, as it always does, a good service in reminding us and stating emphatically that access to justice is a constitutional principle. The amendment that it proposed to Clause 1, which would say that the Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice, would be a humdinger of an amendment. It would reassert absolutely and emphatically the fundamental constitutional principle of equal access to justice for all our people. The amendment that the noble Lords, Lord Pannick and Lord Faulks, and others have tabled and placed before us is not the same as that amendment. They have chosen to qualify the requirement on the Lord Chancellor by including language about his obligation being only within the resources made available for the purpose. The noble Lord, Lord Pannick, also said that in his view the duty was not absolute, although a little later in his remarks he said that access to justice was a vital principle. I am not clear exactly what the degree of obligation on the Lord Chancellor would be.

It certainly seems to me that if the legal aid budget is to be cut by £350 million, it may not be possible within the resources available to secure access to justice. I am beginning to wonder whether the noble Lord, Lord Pannick, and his very distinguished co-signatories, all of them lawyers, may find themselves in somewhat the same position as the revolutionary students in Paris in 1968, whose motto was “Demand the impossible”. It is very exciting to demand the impossible but the prospects for your proposition are not necessarily very good. At all events, I am a little confused about exactly what their amendment would require of the system, and I wonder whether there is not some sort of internal conflict within the amendment.

For my part, I believe that the duty on the Lord Chancellor and the Government should be absolute. If equal access to justice is a fundamental constitutional principle, then I believe that we, as citizens and taxpayers, should pay whatever it reasonably takes to secure it. The legal aid budget, running at some £2.2 billion, is a lot of money. On the other hand, as I mentioned at Second Reading, £2.2 billion is only around 1 per cent of the social security budget and the £350 million cut to the legal aid budget that is being proposed by the Government would, I think, be 0.2 per cent of the deficit, about which all of us are very properly exercised.

I think it is disputable whether the existing legal aid budget is unaffordable. If we believe that it is a fundamental constitutional principle, we could afford to pay what it costs. Of course, costs must be disciplined and the previous Labour Government were severe on that matter. I was not entirely happy when the former Prime Minister, Mr Blair, spoke of his intention to,

“derail the gravy train of legal aid”,

because I believe that a great many legal aid lawyers are working for pretty small remuneration and are not riding on any kind of a gravy train. Nor was I entirely in agreement with the tone and the sentiment of my right honourable friend Jack Straw when he spoke of,

“BMW-driving civil liberties lawyers”.

Of course, it must be right—this is very much the intention that the Lord Chancellor declares in his article in the Guardian today—to attack lawyers who are drawing entirely excessive remuneration out of work that may be funded by legal aid.

My noble and learned friend Lord Irvine of Lairg, when Lord Chancellor, mounted a vigorous attack on the cost of the legal aid system. He attacked the costs but he did not attack the principle. The Government are right, of course, to examine the costs. If it costs £120 million to run the Legal Services Commission, then that commission must be a candidate for economy. However, I am sure that noble Lords will agree here, as elsewhere, that we should not throw the baby out with the bathwater. We are speaking of a fundamental constitutional principle, of a fundamental entitlement for our citizens. Can we speak of a fundamental constitutional principle in the context of an unwritten constitution? I believe that we can, and so I think does the Constitution Committee of your Lordships' House because it quoted the noble and learned Lord, Lord Steyn, and Lord Bingham speaking very eloquently about the right to equal access to justice.

Noble Lords will be very well aware of the Sir Henry Hodge Memorial Lecture, given by the noble and learned Baroness, Lady Hale, in June. I had the privilege and pleasure to listen to that lecture, in which she told us that the principle of equal access to justice is to be found in the Magna Carta:

“To no one will we sell, to no one deny or delay right or justice”.

That is a principle that has been established cumulatively through our history. She told us that a statute of 1494, in the reign of Henry VII, provided for actions to be brought in forma pauperis, relieved from court fees and provided with lawyers acting pro bono. Then later in our history, there was the famous case of Ashby v White, the Aylesbury election case in 1703, when Lord Chief Justice Holt, in his judgment said:

“If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of a right and want of a remedy are reciprocal”.

Some noble Lords may have read an excellent and informative article in the London Review of Books, on 20 October, by Joanna Biggs, who traced some of the history of the establishment of the right of equal access to justice. She describes how, in 1944, Henry Betterton, who, like the right honourable Kenneth Clarke, the Lord Chancellor, was a barrister and indeed a Conservative Member of Parliament for Rushcliffe, was appointed to chair a special committee on legal aid and legal advice. In his report in 1945 he said:

“The great increase in legislation and the growing complexity of modern life have created a situation in which increasing numbers of people must have recourse to professional legal assistance”.

The free legal aid that was at that stage available was, he said, at best somewhat patchy and totally inadequate. He recommended that in the future legal aid should be available not just for the poor but for people of small or moderate means. People who could afford to do so should contribute to their legal costs. Barristers and solicitors were to be paid adequately. There should be legal aid centres across the country. That was the vision that underlay the Legal Aid and Advice Act 1949. That legislation was widely recognised as being part of the structure of the new welfare state that was being created by that Labour Government.

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[Lord Lester of Herne Hill]

I do not mean to prolong the noble Lord’s speech by my interruption, but perhaps I could suggest that it is not helpful to his case if he becomes narrowly partisan. This is not an area where any one party can claim a monopoly of virtue or vice. It is much better to focus on what unites the House rather than what divides it.

[Lord Howarth of Newport]

I hope to be able to do that. I hope that I have not been unduly partisan, but we all feel strongly on this issue and I very much hope that noble Lords on the Liberal Democrat Benches, who I understand feel strongly on the issue, will explain their case to us and, when it comes to voting in the Division Lobby, will act according to their professions. Perhaps in that remark I am becoming a little too party political—for which I apologise to the Committee.

If the Government say that a national debate is taking place, I would reply that the 5,000 responses to the Green Paper demonstrate that there is a very strong consensus against what they propose and that they would be wrong to defy that consensus.

[Baroness Butler-Sloss]

Perhaps I could ask the noble Lord a question. I listened with great care to what he said. It would be extremely helpful to know where his argument is directed. Is it intended to support or oppose Amendment 1?

[Lord Howarth of Newport]

I will come to that in a second. The noble and learned Baroness will be pleased to know that I am about to wind up. We should all be grateful to the noble Lord, Lord Pannick, for tabling an amendment that challenges us to debate the principles against which the detailed amendments should be judged.

I conclude by saying that I believe that the Government have no mandate for what they seek to do. They have no political or moral authority and no permission from the people to take away their right of access to justice and to dismantle that part of the justice system. It would be a dereliction of our constitution if the Government and Parliament were not to resolve to spend the money that is genuinely necessary to secure access to justice for all. I do not know whether the noble Lord, Lord Pannick, will press his amendment to a vote. If he does I will certainly support it. If he does not, I hope that when we come back to the issue on Report, he or others will table an amendment that fairly and squarely insists on the fundamental principle. If they were to table the amendment proposed by the Constitution Committee in all its principled directness and simplicity, that would be preferable.

[Lord Carlile of Berriew]

My Lords, speaking as a liberal from the Liberal Democrat Benches, it is with regret that I say that I support the amendment in the name of the noble Lord, Lord Pannick. I support it with regret because I had hoped that we would not be in this position by the time we started Committee. Noble Lords will recall the Second Reading debate at which unfortunately I was not able to be present because I was out of the country. Since that debate there has been private and public negotiation, lobbying, a great deal of journalism and an expectation that we would move from the position that was expressed from the government Front Bench at Second Reading. However, I detect absolutely no hint that any concessions will be made. Indeed, I detect an air of irritated intransigence coming from the Ministry of Justice in relation to the Bill.

I would not feel driven to vote for the amendment of the noble Lord, Lord Pannick, and to take the same position as my noble friend Lord Faulks from the Conservative Benches on the coalition side, if I felt that there was some movement in the direction of the general principle set out in the amendment. Furthermore, as the noble Lord, Lord Pannick, explained, this is not an expression of a new principle, nor is it an expression of a principle that is to be applied outside the context of this very Bill. It seeks merely to set out a principle that I believe every person in this House should embrace within the Bill’s in effect financial constraints, which are expressed in the amendment.

I, as a liberal and a Member of the Liberal Democrats, have understandably—like, I am sure, my noble friend Lord Faulks—been encouraged not to cause difficulties, not to intervene too much and not to obstruct the Government in getting their Bill through; in other words, I have been encouraged to support this coalition Government, which I would very much like to do. However, I have detected an assumption that Liberal Democrat Peers are to support the Government’s approach to this Bill, and I say to my noble friend Lord McNally that it is not sufficient to make us wait to find out later what concessions are to be made on the many representations that have been made.

I agree wholeheartedly with the Government that a great deal of legal aid money is being wasted at present. I believe that fervently, and I could identify, and indeed have identified when asked, areas in the legal aid system where savings could be made. However, arguments have been made for concessions in areas where access to legal services is required as the only way, in effect, to meet the needs of people whose rights have been adversely affected. If my noble friend wishes us not to support this amendment, I invite him to tell us when he replies to this debate the areas in which concessions are to be made and the general nature of those concessions, not the particulars. In other words, I am asking my noble friend not merely to assume our support from these Benches but to earn our support from these Benches. Without that, I am afraid that I shall remain dissatisfied and will feel free to intervene during these debates on the merits of these amendments.

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[Lord McNally]

At one stage I accused Peter Lodder, chairman of the Bar Council, of stalking me, so often did I see him. Of course the Bar Council, the Law Society and various other bodies, including committees of this House, will give an opinion on legislation. We are certainly in conversation on these matters. The noble Lord shakes his head, but when he was a Minister he did not say, “Come in, vested interests, tell me what you want and I will do it”. He listened to them, and where they could convince him he made changes. I assure noble Lords that my honourable and right honourable friends the Ministers in the other place and I have made ourselves constantly available to a wide range of bodies, including professional organisations, and we will continue to do so during the passage of the Bill. No organisation has a rubber stamp on the matter, but we will listen.

In philosophy and in content, this has been an extremely useful debate that I will draw to the attention of the Lord Chancellor. When it comes to the crunch, we face a division between the principled approach of the noble Lord, Lord Howarth, that access to justice means that we must pay the legal aid bill, whatever it is.

[Lord Howarth of Newport]

I referred to expenditure that was genuinely necessary to ensure that all our citizens have equal access to justice. I certainly did not endorse any inefficiencies or extravagances in the legal aid system that there might be at the moment.

[Lord McNally]

The point is that that is genuinely what we, too, are trying to do. It is a matter of judgment. In the next month or six weeks, as we take the Bill through the House, we will test those judgments in detail. I hope that in the light of my response, the noble Lord, Lord Pannick, will withdraw his amendment.

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[Lord Bach]

My Lords, I apologise to the Committee for not being present during the first, very important debate. I hope that I informed the principal players in that debate that I would not be here for personal reasons —I had to go to a funeral of a dear friend. I am grateful to the Minister for welcoming me in the manner in which he did. However, when I came and heard my noble friend Lord Beecham making his speech, I wondered why I bothered to come back at all.

[Lord Howarth of Newport]

He was very good.

[Lord Bach]

That is what I mean—in case there is any misunderstanding about it. I can see how that could be misinterpreted.

As the noble Lord, Lord Thomas of Gresford, said, with his Amendment 2, to which he spoke along with his later amendments, Amendments 29 and 78, we get down to the nitty-gritty. I want to talk briefly about Amendment 19, which is in my name and that of my noble friend Lord Beecham. It is the first outing of what I think will be a very important issue in this Committee, which is what should happen to scope of legal aid in particular areas of social welfare law.

The noble Lord, Lord Thomas of Gresford, and the others who spoke in favour of his amendment have been too gentle with the Government on this issue. It is absolute nonsense that there could be any question that anyone who gets to the second tier, the Court of Appeal or even, heaven forbid, the Supreme Court, on a point of law—for example, on a welfare benefits issue—should not have legal can not afford their own lawyer to conduct their case, and I very much hope that the Government put it in the Bill in order to take it out. It is inconceivable that John Smith, as it were, could turn up alone at the Supreme Court with his case and be faced with the Supreme Court justices and the very experienced and brilliant counsel representing the other side. I cannot think of any other Government, of any persuasion, ever having thought of doing anything like that. I am quite sure that the Government of whom the noble Lord, Lord Newton, and the noble and learned Lord, Lord Mayhew, were distinguished members would not even have dreamt of suggesting that someone should appear on their own at a case like that without the benefit of legal aid. I very much hope that we do not hear too much more about it.

Some vital case law—on welfare benefits, for example—has been decided at the higher courts as a consequence of the claimants concerned having been properly legally represented. Big social security test cases which reached the higher courts by way of the appeals process include Zalewska, on the lawfulness of the workers’ registration scheme; Hinchy, on the interpretation of the overpayment recovery test; Pedro, on the meaning of “family member in EU law”; and Mallinson, the seminal case on the interpretation of the law on disability living allowance. The idea that cases of that kind, or even those that are less important, should be conducted by a claimant in person is absurd. So I hope that the Government will accept Amendment 2 without cavil. Whether the wording is right is not a matter for tonight, but it is the principle that matters.

We argue in our Amendment 19, which is a probing amendment designed to find out what the Government feel about it, that the law should go wider and that there should be no question of taking out of scope reviews of welfare benefits. The amendment would ensure that individuals seeking to defend their fundamental economic and social rights had the advice that they needed to be able to present their cases and understand the processes that they would be subject to. Our amendment would allow the applicants to get advice before going to a tribunal. The First-tier Tribunals were set up, as we have heard, to consolidate the various tribunals that adjudicate on administrative matters of the state. Admirable work has been done and is being done to try to make First-tier Tribunals as user-friendly as possible—I praise the noble Lord, Lord Newton of Braintree, for having played a big role in this, as well as Lord Justice Carnwath, whom we should congratulate on being elevated to the Supreme Court today.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Howarth of Newport]

It was a very good idea of my noble friend Lord Bach to table this amendment, and I do not want to introduce a jarring note because I am sure that we want to be consensual on this matter, as on others, but I make the point that if more people are going to have to represent themselves in tribunals and courts, they are going to need better opportunities to inform themselves about the law and it is not quite clear how that is to happen, not least against the background of reductions in funding from the Department for Business, Innovation and Skills, the Ministry of Justice and local government for CABs, a matter we touched on earlier this afternoon.

The need is going to be acute, and I fear that it will be the greater because with the reductions in legal aid there is a risk that more of our people will feel alienated from our society. They will no longer have confidence that the legal system will sustain all their legal rights when they find themselves in baffling situations of conflict in which they feel that they may suffer injustice and that there is no one there to champion them. That is dangerous and risks disaffection from the state and the justice system, and would develop cynicism about the law. That is a cultural trend that we may need to anticipate and the Government will need to think deeply about how they might mitigate and counter it.

When the Minister replies to this debate, it would be helpful if he would tell the House a little about how the Government envisage general information about the law and the legal system may be provided. It is not a duty on the Government, as expressed in the Bill, but presumably they are contemplating this at least as a possibility. I certainly think that they should do so.

The noble Lord, Lord Phillips of Sudbury, mentioned with legitimate pride the Citizenship Foundation. But we have learnt, I think this week, that citizenship is to be removed from the national curriculum. Once again, that underscores the importance of finding ways to help a new generation of young people to be aware of their responsibilities and rights as citizens. It may well be that there are excellent members of the legal profession who already visit schools and do pro bono work in helping to advance the legal education of our young people. I hope that that is so. Again, I do not know whether the Government have plans to encourage more of such activity.

I think that we can all remember the days when the law reports in the newspapers were very much fuller and the serious newspapers felt that it was their responsibility to communicate the important cases and decisions in the law. I may be wrong but I have the impression that law reports in the broadsheet newspapers are now more perfunctory than they were. Of course, the tabloid treatment of legal issues is almost entirely sensational. There is a challenge as to how more responsible, more thoughtful, more informative and more effective education through the media can be achieved. Information technology must offer new and better possibilities. I do not know whether the Ministry of Justice is thinking of developing its own website or of encouraging others to develop websites that may help to supply the present deficiency.

If we had less law and clearer law, and if we had more law codified in relatively succinct and simple terms, it would be easier for the people of this country to understand it. Finally, I therefore ask the Minister to say something about the Government’s plans to support the Law Commission in pursuing its perennial task of bringing the law up to date and making it relatively accessible and comprehensible for lay people.

[Baroness Butler-Sloss]

My Lords, I share with the noble Lord, Lord Phillips of Sudbury, the commendation of the Government for putting in the extraordinarily interesting and, I think, very valuable subsection (3) in Clause 1. It is excellent. The only thing that I do not understand is why the word is “may” and not “must”. One starts by knowing that whatever happens in the latter part of this Bill, we are bound to have a situation where the Government will have less money to put into legal aid. As the noble Lord, Lord Howarth, has pointed out, consequently, more people will have to deal with their own cases.

It is very important that there should be an obligation, rather than just the opportunity, for the Lord Chancellor or the Ministry of Justice to have some imaginative ideas to help people who are going to have to do their own cases. The word “must” should be in the Bill. I am somewhat surprised that the Government, having gone so far with this imaginative idea, did not think that it was necessary to make it compulsory.

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[Lord Shipley]

My Lords, I rise to speak to Amendments 114 and 116 and to all the principles that lie behind the amendments in this group. We are discussing a mandatory telephone gateway and whether it can on its own deliver equal and effective access to legal aid. Currently, signposting comes from a variety of sources such as library information desks, council customer services, GP surgeries, councillors’ and MPs’ surgeries, voluntary and public organisations, charities and so on. They all currently direct people to CAB, law centres and voluntary organisations such as Shelter. That system works. In the main, the signposting is of high quality and gets people who need help to the right advice from the most appropriate place.

There is a great danger in a call-centre approach. I hope that that is not what the Government intend, but a call-centre approach is dependent upon speed and low costs as its main drivers. The telephone can be very good, but in this case it would be very good only if: first, individuals can communicate via the telephone—for example, there could be significant levels of documentation to quote from, and there is therefore a strong probability of complexity in an inquiry; secondly, if individuals have the confidence to clearly prepare what they need to say and then say it; and thirdly and crucially, if the quality of the staff is sufficient to answer the initial inquiry in terms of their legal knowledge and ability to prompt the facts to come out in conversation. In conclusion, a telephone gateway should have, as a minimum, law graduates or experienced advice workers taking the initial calls, not unqualified generalists who may fail to pass on a call that should be passed on, or who may fail to diagnose a case because they think it is out of scope, when actually something that is related to it is within scope.

The telephone can never be the only means of accessing legal aid—nor should be electronic variations such as the internet and so on. Sometimes a face-to-face initial interview can be a more effective and cheaper option than the telephone or the web. We should bear it in mind that large numbers of households in the UK do not have access to broadband or the internet and are reliant upon public services such as public libraries and schools for access. Around a quarter of households simply do not have any access to that means of communication. Normally, but not necessarily, very many members of those households will be poor and unable to afford the relevant equipment. Expecting them to communicate across the web could be a significant problem.

Most contact for assessing an initial inquiry is currently face-to-face. I have not followed why, if someone accesses, say, a CAB, law centre or public library, the initial face-to-face inquiry that has already taken place cannot then be referred for another face-to-face discussion. Why should there be the additional cost of an extra loop in the system by generating a computer record that can then be accessed by a range of other people?

I have concluded that we must have a range of providers that can address the needs of all those likely to require help, some of whom may not speak English well. I noted recently research from the USA that shows that one-fifth of people who receive telephone advice do not act upon it because they have not fully understood what the advice actually means.

There is a further issue around cost. Is it cheaper? Figures have been quoted of savings of between £50 million and £70 million. In my view, the cost could prove to be much less than that because the current calculations compare the cost of face-to-face interviews with the cost of a telephone call via a community advice line, but they are not directly comparable because those who use the latter are a self-selecting group who are content and confident with using a telephone.

We need to look at a whole range of issues more deeply. I hope that my noble friend will be willing to undertake further work on the advisability of a single mandatory channel; that further work will be done on the relative costs involved; and that the proposal’s impact on equality and access to justice will be looked at very closely. There are real dangers that some of those most in need of help will fail to secure it through a mandatory telephone gateway.

[Lord Howarth of Newport]

My Lords, my noble friend Lord Bach and the noble Baroness, Lady Grey-Thompson, have identified, imaginatively and sensitively, extensive groups of people for whom a mandatory telephone gateway would be entirely inappropriate. I hope that the Minister will reflect carefully on the apprehensions expressed this evening. The noble Baroness, Lady Prashar, and the noble Lord, Lord Shipley, both suggested that it would be a false economy to skimp on the cost of the initial advice and assistance. We could end up, perversely, having to spend a lot more because people did not receive the advice and assistance that they needed, it was not comprehensible to them, it failed to match what was appropriate for them or because they lacked the encouragement to explain themselves fully, so their cases were not taken further through the appropriate channels and their personal predicament deteriorated. We must take all those worries seriously.

The noble Baroness, Lady Grey-Thompson, touched on the question of training, and the noble Lord, Lord Shipley, talked about the need for the people who are to provide the service to be of high calibre. Those things are important. It would be helpful if the Minister would say more about what the Government envisage by way of training programmes and the level and standard of personnel who will be recruited to provide the service. We are in a familiar dilemma as we examine the legislation. It is perfunctorily articulated in extremely important aspects. We were asked to take the Government on trust. We are willing to take the Government on trust to the extent that they will explain themselves to us and we know what we are being asked to trust. I hope that the Minister will be able to be helpful to the Committee on those points.

I have two quick questions to put to the Minister. Will this be a freephone service? Secondly, does he envisage that there will be a network of telephones that people will be able to use when they make these calls? It could be a very sensitive matter for people explaining themselves to someone at the other side of the telephone gateway about issues concerning family breakdown, debt and so forth. It is not just that they are painful topics but that it could be positively hazardous for people not to be able to make those telephone calls in circumstances of privacy where they can be confident that they will not be overheard or interrupted. We need to know a lot more detail about how the Minister anticipates that the system will be made to work in practice.

[Lord Carlile of Berriew]

My Lords, I raise just one or two points about the notion of a compulsory telephone gateway. The first relates to legal professional privilege. Can my noble friend confirm that all communication in the telephone gateways are and will continue to be covered by legal professional privilege, so that we can avoid the risk of cases eventually arriving in court and initial conversations with telephone gateways being used for the purposes of cross-examination when the person accessing the telephone gateway may well have been lacking in confidence and have stated their case in an inaccurate way?

The second matter I wanted to raise is about the group of people—and there are many of them—who contact what I will call informed lay services. That would include people going to citizens advice bureaux, well informed councillors, Members of the Welsh Assembly in their constituency surgeries and, of course, Members of Parliament in their constituency surgeries. It would not make much sense if people who had gone through those routes were then required thereafter to access a mandatory telephone gateway. Otherwise, we will run into the ludicrous situation where people sit in those establishments with their MPs and a call is made to the telephone gateway during the constituency surgery. That would of course be an absurdity. Perhaps the Minister would explain to the Committee what is proposed in such circumstances, the ones that I have described being but examples.

Public Bodies Bill [HL]

Lord Howarth of Newport Excerpts

Wednesday 23rd November 2011 Lords Chamber

[Viscount Slim]

My Lords, I, too, thank the Minister and the Government. I have worked rather hard to see that we have a chief coroner. One little area that is not often remembered is that when it comes to the military side, the widows, the mothers and the dead servicemen actually still belong to the Ministry of Defence, which is responsible for them. These people should not be left out of the thoughts of this new chief coroner—which I am so pleased about. I hope that on his introduction to this very important post, he goes across to meet and talk to the Ministry of Defence, and perhaps visits a battle zone—this would be rather sensible. He would then get the feel and the ethos, as the noble Baroness has just said, of military thinking on these occasions.

I end by saying one further thing which I have said on this subject in your Lordships’ House before. At the moment, thank God, the casualty and death rate for war is fairly steady and fairly low. However, some things can go wrong very quickly in an operational area, and somewhere the coroner’s system has to be geared up for a higher casualty rate coming in across its bows. At present, we are waiting one to two years for conclusion. If the rate was to increase and the coroners did not have a plan for this, then I can see bereaved families, widows and mothers waiting up to four years before conclusion. For the sake of the chief coroner, I hope that he will get to know the military and will look ahead for, God forbid, worse rates of death.

[Lord Howarth of Newport]

My Lords, I hope that I will have the tolerance of the House if I briefly ask the Minister a question about a somewhat tangential issue. The Lord Chancellor is quoted on page 8 of today's Times as saying:

“Everyone is agreed that the priority is raising the standards of coroners’ inquiries”.

I take it that he was referring to coroners’ inquiries of all sorts.

Following the Government’s extremely welcome acceptance of the need to appoint a chief coroner, will the Minister assure us that they will also accept the will of Parliament as expressed in the Coroners and Justice Act 2009 that an office of coroner for treasure should be established? Will he acknowledge that the appointment of a national coroner for treasure would lead to the elimination of lengthy delays, excessive bureaucracy and errors, as well as to savings in overall public expenditure as the activities of coroners in 45 local authority areas would be replaced by the streamlined, specialised work of a single national coroner, probably supported by a single staff member? If the noble Lord is unable to give that assurance, will he undertake to reconsider the matter urgently, and to correct the failure by the Ministry of Justice to include reference to the treasure process in the draft charter for the coroner service?

[Lord Bach]

My Lords, it does not seem like a year since this House decisively rejected the Government’s firm plan to abolish the position of chief coroner by a majority of 112. It was a vote in all parts of the Chamber of which the House could be proud then and can be even prouder today. Of course I join in congratulating the Government. However, in this instance the congratulations must be slightly modified. The Government have given in at the 59th minute of the 11th hour. They deserve credit, but as the noble Lord, Lord McNally, will recognise from his position at the Ministry of Justice, there is an analogy with someone in the dock who does not deserve the credit that someone who makes an early admission of guilt deserves. This is the equivalent of a change of plea at the moment when the jury is being sworn in. It is worthy of credit, and the judge will pass a lesser sentence, but he will not show as much leniency as if the Government had given way some time earlier. It is better late than never—but it is pretty late.

Of course, this is all immensely to the credit of the noble Baroness, Lady Finlay. She deserves huge congratulations on her success today. She will be the first to say that it is not just her success, but that of others as well. However, she deserves particular praise for her brave refusal to back down over this long period. So does the Royal British Legion—I declare my membership of a local branch—and other organisations that the noble Baroness mentioned such as INQUEST and Liberty, and those on all sides of the House and elsewhere who stayed firm and argued the case for the chief coroner.

Noble Lords should make no mistake—sometimes these things ought to be said—that the Government over the past 12 months used every means and blandishment, and a few extra, to persuade, if I may put it gently, those who dared stand out of the error of their ways. Individual meetings with the Lord Chancellor were not the worst of it. Seductive compromises were offered one day and a hard line taken the next. There were meetings and letters galore. I hate even to contemplate the pressure that the brave Conservative Member Andrew Percy, who dared to challenge the Government in another place, must have come under at a certain stage. I do not want to sound churlish—I hope that that is not my style—but I do not think the congratulations are quite as deserved in this case as perhaps they were earlier this afternoon.

I have no doubt that our Justice Minister, the noble Lord, Lord McNally, played an important role in this. I also am in no doubt that the Sun, which I know many noble Lords read regularly, also played a pretty important role at the last moment. For anyone who has forgotten what they read in the Sun yesterday: they will have seen a story and then an editorial that condemned the Government in no uncertain terms for the stance that they were then taking. No. 10 reacted extraordinarily quickly. The Prime Minister’s spokesman spoke early yesterday afternoon and the change was announced yesterday evening—perhaps coincidence; probably not.

Whatever the result, the Government have done the right thing. They have accepted the chief coroner. That was argued for on all sides of this House during the passing of the Act, which was only two years ago. It is a great pleasure to be able to congratulate the Government on what they have done, but I ask the Minister who will answer this debate why Section 40 on appeals is being removed. If I remember rightly, many noble Lords took part in those debates, so why is it being removed? Among the strong and powerful arguments in report after report in the past decade, and eventually during the debate on the Coroners and Justice Act 2009 for the setting up of this post of chief coroner, the possibility of appeal on a number of issues, which is not huge, was set out in Section 40(2), as it was well nigh impossible to appeal under the present system. The only remedy, as we have heard, is judicial review, which is time consuming. As the Public Law Project argued:

“The cost of bringing a judicial review claim is considerable: in the region of £10,000 to £20,000 for a straightforward case, higher for a more complex matter. If a claimant is unsuccessful, they are likely to be liable for the defendant’s costs as well as their own. They are therefore looking at a legal bill of upwards of £30,000 if they lose, and they must be prepared for this eventuality, bearing in mind the unpredictability of judicial review proceedings and costs orders”.

We believe that it would be preferable for the chief coroner to have the power that Parliament gave him or her during the passage of that Bill, which was agreed on an all-party basis. That sensible step which we all agreed should not be implemented straight away—that is perhaps the answer to the noble Lord, Lord Phillips of Sudbury—and that there should be a delay between the time the Bill was enacted and this section was implemented. There was no intention from any party that the appeals process would begin at once. If it remained in the Act it would be there if some time in the future a Lord Chancellor felt able to bring it in under the guidance of the chief coroner at the time. To abolish Section 40, which is what the Government propose, is the wrong thing to do.

If the noble Baroness were to put the matter to a vote—I can understand if she does not wish to do so—we on this side would support her. We regret that Section 40 is being taken out. However, I do not want to end on a depressing note. We are grateful to the Government for the action that they have taken.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, it is a bedrock principle of a liberal society that there should be equality before the law. Every citizen, regardless of means, should be able, where they have a reasonable case, to have access to legal advice, assistance and, should it be necessary, representation in court. This is a matter of both constitutional and humanitarian principle—a principle that the Government are abandoning in the Bill.

Legal aid costs £2.1 billion. Is that too much to pay to make such a fundamental principle a reality in practice? Is it really unaffordable? It is no more than 1 per cent of social security expenditure, yet legal aid, too, is an indispensable part of the welfare state. Of course, where there is waste in legal aid, or unintended injustice in its working—as the noble and learned Lord, Lord Woolf, explained—it should be stripped out. However, when that has been done, I do not mind—and I suspect that most of my fellow citizens do not mind—how much tax we pay to fund legal aid.

Justice for All warns that more than 700,000 cases a year will lack legally aided support following the reduction of legal aid funding for advice centres and the removal from the scope of legal aid of housing, welfare benefits, debt, employment, immigration, education, clinical negligence and family breakdown. The organisations that form Justice for All—including the Law Society, Justice, the Disability Alliance, AvMA, Mind, the National Autistic Society, Gingerbread, Citizens Advice and Shelter—are experts, and I trust their evidence and their motives.

The Government take the view that legal aid is not justified in welfare benefits cases. Paragraph 4.219 of the Green Paper states that,

“because the issues are not generally of sufficiently high importance to warrant funding”,

and the tribunal system is so “user-accessible”,

“appellants are able to represent themselves”.

Not of sufficiently high importance for whom? I think that they are of very high importance for people in poverty. And how are people beset by the multiple, interlinking problems that the poor have to battle with and facing all the complexities of debt, the benefits system and the law to represent themselves? It is estimated that 58 per cent of those whose benefits cases will fall out of scope will be sick and disabled people.

Those served by law centres and other advice centres funded through legal aid include people who are ill and unable to manage day to day, have physical or sensory impairments, are learning disabled, cannot speak English, cannot read, have addictions, are old people with support needs or young people with support needs, or are refugees. Legal aid is to be taken away from people who are in acute difficulty.

The Government are legislating to remove legal aid from employment cases at a time when youth unemployment has passed 1 million and employment prospects are bleaker than they have been for a generation. Shelter anticipates that more than 50,000 housing cases will be unaided when legal aid is removed.

The removal of legal aid for clinical negligence is very worrying. The noble Lord, Lord Faulks, spoke powerfully about that. I ask Ministers to imagine the grief and the stress for a family in such a situation. Parents seeking legal redress and compensation in the interests of their damaged child have to battle not only with the distress and the practical difficulties at home that such an event creates but with daunting legal complexities, substantial costs for expert reports and the implacable resistance of the NHS to admitting fault. Your Lordships will want to examine rigorously the Government’s contention that reformed conditional fee agreements and the insurance industry will make up the gap.

Special educational needs are also removed from scope. Parents again face constant struggle and stress as they try to establish the rights of a child, ground down by the determination of so many LEAs to provide the minimum. If the parents' marriage should break down, adding new dimensions and intensities of distress to their lives, again the Government intend that they should no longer have access to legal aid to help them through the crisis.

The policy in the Bill on legal aid is not only indecent; it will not only create fear and suffering to save net, perhaps, £20 million or £25 million on legal aid for welfare cases and just £11 million for clinical negligence cases; it is also stupid. It will end up costing more to other government departments and to local government. Early advice and intervention prevent problems escalating to become more serious, complex and costly. The Howard League warns that:

“The logical conclusion of reducing legal aid is that … youth crime will increase and greater economic costs will be incurred further down the line”.

Through legally aided advice centres, litigation is actually averted, tribunal procedures are smoothed, ill health is prevented and children are saved from harm.

There is an ignorance and unrealism in the ministry's approach. Real life is messy and fails to fit bureaucratic categories. Citizens Advice has testified that,

“advising only on debts where a home is at ‘immediate risk’ is not practical, as most clients have multiple debts which must be addressed for them to achieve a sustainable financial position”.

The National Federation of Women's Institutes has noted that:

“To exclude areas of law such as housing and debt from the legal aid scheme denies victims of violence the support they need”.

Then there is the new obligatory telephone gateway to legal aid. My noble friend Lord Borrie asked questions about this. How are people with poor language skills, speech impairments or mental health problems leading to stress and poor concentration to explain themselves over the telephone? Clients need face to face contact with advisers. Advisers need to read body language, and build clients' confidence and ability to explain and understand. Poor presentations and poor advice will lead to poor decisions and further costs.

The exclusion of poor people from advice and legal aid comes when the Government are cutting local authority funding by 30 per cent; forcing cuts to Sure Start, social care and other local authority services that are crucial in assisting disadvantaged people to cope; cutting and capping benefits; making social housing tenure more uncertain; driving up unemployment through reckless cuts to public spending; and making it easier for employers to sack people.

The Ministry of Justice has failed to seek economies in the right places. The Law Society says:

“There is significant scope to make efficiency savings within the legal aid and the civil and criminal justice systems that will enable at least £400 million to be saved”.

It is not civil legal aid whose costs have been rising. The ministry is hitting the wrong targets. It is cutting the fees paid to legal aid practitioners by 10 per cent, yet legal aid lawyers typically earn only around £25,000 a year. The ministry's policy will also result in a 77 per cent loss of legal aid income to charities, which is essential to fund staff. Volunteers need professional training and cases need the continuity that only professional staff will supply.

Sixty per cent of appeals against the refusal to award disability living allowance, when the claimant is accompanied by an adviser, are successful. Appeals against the refusal of employment and support allowance have quadrupled in the last two years. Why are the Government penalising claimants instead of the DWP for the appalling quality of its decision-making? It has to be anticipated that the introduction of universal credit from 2013, affecting huge numbers of people, will be accompanied by a high error rate. Legal aid will be essential for the success of welfare reform.

At a time when we are seeing mass protests, which the Government should take very seriously, they are introducing a policy in this Bill that will drive more people to hold the view that politics, law and public administration in this country are unjust.

I had hoped that we agreed across the parties that in hard times, and indeed at all times, we should protect the weakest and the most vulnerable. Of course I do not believe that Ministers personally want to hurt anyone, but this policy of withdrawing legal aid, of hitting people when they are down, will be cruel in effect, and it is wrong.

--- Later in debate ---

[Lord McNally]

I stand by that quote, then. If we are going to take that attitude, and if we are going to avoid taking tough decisions, we will face far greater economic problems. This idea that somehow we can put things off until tomorrow is perhaps why we are where we are today, and why we have to take the decisions that we will take today.

I heard closely what the noble Lord, Lord Howarth, was saying. Of course, it was a wonderful speech. A number of the speeches made today were wonderful speeches, if we believe that there is no limit to the amount of money that we can spend on legal aid; that there was somehow a golden age when this was all available. However, we know well—

[Lord Howarth of Newport]

The difficulty in the position that the Minister is taking is that while he may indeed reduce the Ministry of Justice’s expenditure, he is exporting his cost to other government departments and to local government. Far from reducing the deficit in public finances, the policies of his department are likely to increase it.

[Lord McNally]

That is the speech the noble Lord made earlier. He knows, as I well know, that across government, except for two special cases—health and overseas aid—departments have had to make severe cuts. In each of those departments, there are people who could make speeches, like those that have been made today, about how those cuts hurt specific sections of society. But there is no getting away from it: the Ministry of Justice is a department with a budget of just over £9 billion. Its commitment was to cuts of £2 billion in a department that spends on only four things—prisons, probation, legal aid and staff and court administration. Each of those has taken a hit. If noble Lords are successful in stopping the changes we have made in legal aid, those other parts will take a hit as well. I can tell noble Lords that it may be heartbreaking to hear some of the stories today, but for me, it has been heartbreaking to see very good staff who have served the Ministry of Justice well having to leave through no fault of their own. We have a probation service, which does exceptionally good work, that is under pressure. There are no soft options and no easy ways in this. We have tried to put forward a series of suggestions.

Listening to some of the distinguished lawyers, they do not fully appreciate that their profession is in flux. The way law is delivered and by whom it is delivered is going to change. I do not think the full impact of alternative business structures and changes in the way chambers and solicitors are organised is fully appreciated yet. They will mean changes, and they may be changes that make a big difference to the way that legal advice is delivered. I heard the disparaging of telephone advice, but the world is changing and lots of people receive advice on the net and by telephone. Indeed, I went to the Law Society’s prize giving for solicitor firms of the year and I was intrigued by how many of the prize winners now have web pages where people can go. You can get lots of advice for free before you press the button to hire them. It is a changing world in some of these things.

I understand that when campaigning groups are campaigning they always produce figures that will be brandished around in debates like this. For example, I point out that none of the horrendous cuts that we are being told about actually yet impacts on CABs. I hold up my hand on the £20 million. I thought of saying that when I was doing economics there was something about the velocity of money, and I think this is an example of it. I do not know whether it has been around 14 times, but it is, I confess, the same £20 million that was advised earlier, but it is a very useful addition. We are across the department looking at this very special problem of advice centres and the CAB to see whether we can bring forward proposals longer term.

I go back again to this idea that somehow we are moving from a principle in terms of legal aid. It invites the question: what is so magic about £2.2 billion or £2.1 billion against £1.7 billion? It is less, and it means cuts, but it is not a move away from some absolute commitment to pay for everything, whatever, which seemed to be the thrust of some of the speeches earlier. Once you have a budget, you make choices within that budget, and that is what we are doing. These reforms will still be spending £1.7 billion a year on child protection proceedings, most judicial reviews, international child abduction, special educational needs, community care, discrimination, debt and housing cases where a home is at immediate risk, mental health cases and 95 per cent of funding for child parties.

I accept that a number of issues have been raised today that need the kind of scrutiny and expertise that this House brings. The Government have not sprung these issues on an unsuspecting country. The proposals on legal aid were in the Green Paper that was published over a year ago. Certainly, some of the more recent additions will need the close scrutiny of this House, but it is not true that we brushed aside the Law Society’s wonderful ideas for saving the money in different ways. We considered its proposals very carefully, and we are looking very closely into the one for more efficient prosecution and reimbursement of legal aid funds. A great deal of its proposals were shuffling responsibilities and costs around Whitehall or producing new taxes, which is not the same as making savings.

I also take on board the very strong concerns that were voiced about domestic violence. I believe that we have tried not just with these measures but with other government measures to try to give support and help in this area. We should go through this in Committee and I will be able to respond to amendments that are put down at that stage. The same is true of clinical negligence. These issues have been raised with considerable passion and they merit closer scrutiny in Committee.

Those who are experienced as Ministers will know that I cannot make any commitments at this stage, other than to suggest, as I did earlier, that we use Committee for a useful and productive examination of the Bill. I take on board what a couple of my noble friends said about advice at police stations. I suggest that they put down an amendment on that. The noble Baroness, Lady Grey-Thompson, suggested that we had not listened to earlier consultation. That is not true. I will not weary the House by going through them but there are at least a dozen examples of specific changes we have made during the consultation process. I take the advice of the noble Lord, Lord Gold, that the best way I can end this debate is the way I ended my opening speech; that is, to recognise that the range of expertise in this House will be extremely useful to us when examining this in Committee.

This may excite noble Lords or send them into depression, but we have something like three months of parliamentary time looking at this Bill in its various stages. I cannot go further on these issues than saying that we will listen, but we will listen to some very serious points that were made in a very serious way. I hope on that basis we can move to Committee and that the House will give this Bill a Second Reading.

House of Lords: Reform

Lord Howarth of Newport Excerpts

Wednesday 22nd June 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, coming in to bat at number 75 it is tempting to have a bit of a slog but I shall be my usual restrained and cautious self. We can surely all agree that our democracy needs safeguarding and strengthening, that government—policy-making, legislation and administration—needs to be done better, that the performance of Parliament needs to be improved and that the House of Lords needs to be reformed. As we pursue political and constitutional reform, our lodestar should of course be democratic legitimacy—the principle that elections determine who should form the Government, that elected Members of Parliament and the Government themselves should be accountable to the people and that the people should, from time to time, have the opportunity to renew them or to replace them. But we have such democratic legitimacy through the ways in which the House of Commons works, as it is now constituted.

That the House of Lords is appointed does not invalidate or weaken our British democracy. So long as the primacy of the House of Commons is accepted, as it now is, the democratic imperative is satisfied. As we have it now, the House of Lords is no more than an advisory Chamber. Its role is revision and scrutiny, which is what the Government want it to be. Of course there are, from time to time, impassioned and prolonged debates between the two Houses. We in the Lords offer our amendments. Sometimes we reiterate that offer. Occasionally, rarely, we exercise our delaying power but ultimately the appointed House of Lords always defers to the democratic authority of the elected House of Commons. Although the textbooks may not quite put it like this, since the Parliament Acts we have, in effect, unicameral government: an elected House of Commons with an advisory House of Lords beside it. The noble Lord, Lord Norton, who always educates me in these matters, described our arrangements as asymmetrical bicameralism.

Mr Clegg’s quest to introduce democratic legitimacy into the second Chamber is the pursuit of a red herring. The people who make the laws are already elected and are accountable to the people. The House of Lords advises the real legislators. If we were to have an elected second Chamber, the clear accountability of Parliament to the people would be muddied.

Elections are not the only source of legitimacy. Judges, academics and faith leaders have legitimacy. The legitimacy of the House of Lords derives from the quality of the advice that it offers through debates, amendments, the work of Select Committees and so forth. The quality of that advice derives from the expert knowledge and experience of the Members of the House—Cross-Benchers and Members of political parties alike. Good scrutiny makes for good government. That is the justification of what we should do.

Our democracy needs reform. The debate about the Bill is not a contest between those who are in favour of reform and those who are against it. The House of Commons needs to pursue the agenda offered by the Wright Committee to strengthen the Back Benches and improve their scrutiny of the Executive. The interaction of the Parliament at Westminster and the European Parliament needs to be improved. We need to attend very carefully to the arrangements for devolution because, since the recent elections to the Scottish Parliament, the union is in greater danger than it has ever been before. We need to reinvigorate elective local government through relaxing control from the centre. There is a large and legitimate agenda for reform and it certainly includes reform of this House. We should not be complacent. There is some risk that this two-day debate might be perceived by some—admittedly those who read it selectively—as a sustained indulgence in institutional narcissism. At any rate, we should not talk too much about our own wisdom. We need to reform the House to make it a more effective advisory House, not to make it a new democratic hotspot.

If the House of Lords were to be abolished and replaced by an elected second Chamber, as the Government propose, how would relations between the two Houses be affected? There could be an attempt to nip this new element of democracy in the bud—to emasculate its democratic potency—restricting its powers to those conventionally exercised by the present mainly appointed House, which is what the White Paper proposes. Who of first rate ability or serious experience in the world would want to stand for election to a Chamber with such limited powers? In principle, an elected second Chamber could be embraced as a vigorous and spirited House of Parliament flexing its democratic muscles. However, in that case, the House of Commons would have to accept a rebalancing of the respective powers of the two Houses. Members of Parliament would have to accept that Members elected to the second Chamber would have the same rights to represent and relate to the citizens of this country as they do. When the United States federal Senate became directly elected, its Members serving longer terms—though not 15-years terms—than Members of the House of Representatives, the Senate became the senior House. The Unites States legislature is characterised by permanent conflict and impasse, with the Executive unable to secure their preferred legislation.

The compromise proposal of an 80 per cent elected and 20 per cent appointed House would not work; I cannot imagine how such a hybrid Chamber could be successful. Of course, the appointed Members would be 20 per cent of a much smaller House. The Government propose that they should be full-time Members. They would be no match for the Cross-Benchers, who at present make such an invaluable contribution to your Lordships’ House. The decisive argument against the compromise proposal is that the unelected 20 per cent would again and again decide the outcome of votes in the mainly elected House, which would be unacceptable.

If we have abolition and replacement, it seems to me likely that the House of Commons would attempt to constrain the powers of the elected second Chamber; but the elected second Chamber would gradually and tenaciously aggrandise its powers, just as we have seen the Welsh Assembly, the Scottish Parliament, the London mayoralty and the European Parliament do. Do noble Lords remember the categorical assurances that we were given before the first direct elections to the European Parliament in 1979 that its powers would remain unaltered? We would have continuous instability and conflict and meanwhile we would have lost the virtues of the appointed House: its expertise and its forbearance.

Either way, whether we have a weak or a powerful elected second Chamber, the key question to be asked is: how would it improve the performance of Parliament? Again and again, I have asked the proponents of elections that question and I have never had an answer. I hope that when he comes to wind up this evening, the noble Lord, Lord McNally, will be able to give us an answer, but I fear that the price for the extra democratic legitimacy that is not needed would be a less effective Parliament.

It would be much better to concentrate our energies on reform of the second Chamber where we can agree, and on improving what we have. The proposals set forth by the noble Lord, Lord Steel of Aikwood, in his Bill are more or less contained within the White Paper and the draft Bill: a reduction of our membership; arrangements for retirement; the phased departure of the remaining hereditary Peers; powers to expel Peers found guilty of grave offences; and a statutory Appointments Commission. The statutory Appointments Commission’s task would be to ensure that the quality, expertise, range and representativeness, in the sense of the term used by the noble Lord, Lord Armstrong of Ilminster, were such as to provide an institution that would give the best of service to the country.

If the Government set aside, at least as their immediate purpose, elections, which are massively contentious inside Parliament, little debated or desired outside Parliament and irrelevant to the urgent needs of the country, it would not be difficult to achieve wide agreement on measures of incremental reform. Incrementalism is the British way of constitutional reform. Changes that often seem modest—for example, the introduction of life peerages—turn out over time to have profound, far-reaching and beneficial consequences. Mr Clegg, if he would moderate his ambition, could yet be a great parliamentary reformer.

Elections: Alternative Vote System

Lord Howarth of Newport Excerpts

Tuesday 3rd May 2011 Lords Chamber

[Lord McNally]

Gosh, we are getting a lot of information today. This is all extremely useful for the electorate. In less than 48 hours, the power will pass to them. I have always been one of those politicians who trusts the people and I will wait to find out what they say. As to the earlier point on the Australian experience, the noble Lord is perfectly right.

[Lord Howarth of Newport]

As the noble Lord has just acknowledged, the reality is that under AV the count would take longer. Will it not be the case that if we were to have an AV system, people would expect to know the result of the general election quickly, as they are accustomed to do? For that reason, is the Minister not absolutely right that if we were to have AV it would be inevitable that we would have to invest in counting machines?

[Lord McNally]

I think we have already had at least three questions on that to which the answer was no. As the noble Lord will know from his experience on the AV Bill, the Government are remaining aloof from the debate itself. However, I found it interesting that a Political Studies Association author at the University of Reading thought that the introduction of AV would imply an annual cost across a five-year electoral cycle of around only 30p per person. That sounds to me like a bargain.

Parliamentary Voting System and Constituencies Bill

Lord Howarth of Newport Excerpts

Wednesday 9th February 2011 Lords Chamber

[Lord Wallace of Tankerness]

This is not down simply to mathematics. The principle at the core of this part of the Bill is to ensure the equality of the ballot, which all of us hold very dear indeed and which is not a purely mathematical thing. One elects one’s representative to sit in the other place and, by doing that, contributes to what the Government of this United Kingdom will be. There is a merit in that vote having equal value in all parts of our United Kingdom.

[Lord Howarth of Newport]

Even on his own basis—that numerical equality is the only thing that really counts—the Minister is under an illusion in supposing that, by achieving numerical equality between constituencies in Swansea and Aberdeen, he necessarily creates votes of equal value. The value of votes will also depend on registration, turnout and marginality in particular constituencies. He is pursuing a chimera in this respect, while at the same time ignoring that the basis of parliamentary representation in the United Kingdom has historically been that constituencies should be expressive of communities. Communities in Swansea and Aberdeen are, of course, of equal value, but the design of their parliamentary representation should reflect their particular characters.

[Lord Wallace of Tankerness]

My Lords, we have rehearsed the arguments before about matters such as turnout, on which, I accept, the Government cannot legislate—and turnout will have an effect—but on the morning of the election before anyone has turned out, at least what we are seeking to do gives a greater likelihood of equality before factors such as turnout come into effect. It does not say much for the quality of the value of a vote if, before you have even gone to the polls, an imbalance is already implicit in the system.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, this is about the size of the Executive. The effect of this amendment would be to reduce the size of the Executive in proportion to the reduction in the number of MPs. There is no issue that it should not happen. Not surprisingly, Mr Nicholas Clegg declared before the election:

“I want to be clear: I am talking about a major reorganisation of Whitehall … As a result of our restructure the number of Ministers and government whips would be reduced from 119 to 73”.

Mr David Cameron, now the Prime Minister, in a lecture entitled “Rebuilding Trust in Politics”, sounded a similar note, promising:

“We’d want to reduce the power of the executive and increase the power of Parliament … We’ve got to give Parliament its teeth back so that people can have pride in it again—so they can look at it and say ‘yes: those MPs we elect—they’re holding the government to account on my behalf’”.

The effect of reducing the number of MPs by 50 without decreasing the number of officeholders entitled to sit and vote in the House of Commons by the House of Commons Disqualification Act 1975 is to increase the size of the government Front Bench proportionate to the number of Back-Benchers.

In Committee the noble Lord the Leader of the House said that,

“there is a very serious underlying point and that is the fear that the proportion of the Executive will increase as the number of Members of Parliament falls. I understand that there is an impatience in this Committee to know how the Government will address that fact. I am trying to be as helpful as I can but there is a limit to the helpfulness.”

You can say that again. He went on:

“We have said that we will address this issue and we will, but there is plenty of time to legislate before 2015 if we need to. The Minister for Political and Constitutional Reform told the Constitution Committee, of which my noble friend and the noble and learned Lord are members, that we will bring forward proposals during this Parliament. That is in good time as the reduction in the size of the other place will not yet have taken effect. I hope that is a sufficient reassurance”.—[Official Report, 26/1/11; col. 1058.]

No; that is, on the scale of reassurance, nil. Do we trust this Government to introduce measures to reduce the number of Ministers in the other place? No we do not. The only way to deal with that is if Parliament is prepared to do it by saying, “Let’s reduce the number of Ministers”, as Mr Nicholas Clegg, Mr David Cameron and the noble Lord, Lord Strathclyde—the triumvirate on which the Government are based—said they would. I do not trust them to do it in 20 years. In those circumstances, I invite the House to do it. I beg to move.

[Lord Howarth of Newport]

My Lords, my Amendment 27FA would insert a new clause after Clause 11, and after the new clause inserted by the amendment of my noble and learned friend. His new clause relates to the size of the Executive—the number of Ministers. My new clause is intimately related to that and deals with the number of Parliamentary Private Secretaries. I propose that their number should also be reduced commensurately with any reduction in the size of the House of Commons. We are talking here of the so-called payroll vote—the payroll which consists not only of salaried Ministers and one or two unsalaried Ministers, but of Parliamentary Private Secretaries. Although they are unpaid, they are always somewhat sardonically referred to as being members of the payroll vote.

In Committee, noble Lords on all sides of the House expressed their concern that the capacity of the House of Commons to hold the Executive to account would be further enfeebled if the size of the payroll vote were not to be reduced in proportion to the reduction of the size of the House of Commons. An important amendment on that matter moved by the noble Lord, Lord Norton of Louth, attracted a great deal of interest and support on all sides. Since then, I have learnt that the Speaker of the House of Commons himself has expressed concern that reducing the number of MPs without a commensurate reduction in the number of Ministers would skew the Westminster playing field in favour of the Government, as has the steady expansion of the payroll. Those sentiments were attributed to Mr Speaker Bercow in an article in the House Magazine.

Mr Cameron has appointed a lavish number of Parliamentary Private Secretaries, considerable numbers of party vice-chairmen and special representatives. His latest appointment in that genre is a defence envoy for Gibraltar. The Member of Parliament who has been appointed to that distinguished role is someone for whom I have the highest personal regard, but the important point is that she will be bound into the patronage system and lose her capacity to express an independent point of view—certainly in terms of voting. Richard Hall, writing in the House Magazine, said that patronage sucks in more and more Back-Benchers, leaving fewer to hold the Government to account.

[Lord Tyler]

Given that the Government have appointed a number of Labour Members to perform particular tasks, does the noble Lord include them in the payroll vote—Mr Frank Field, for example?

[Lord Howarth of Newport]

I entirely deprecate this tendency and I am delighted that the noble Lord has drawn our attention to a continuation of a baleful tendency that has persisted for many years. In 1900, there were just 60 salaried government posts, of which only 33 were filled by Members of Parliament. In addition, there were nine Parliamentary Private Secretaries. The total payroll vote in 1900 was 42. One hundred years later, in the year 2000, which was during the period of the previous Labour Government, the payroll consisted of 129 out of 659 Members of Parliament. We should also bear in mind that other legislatures—for example, the legislatures in the United States of America and in France—do not have to supply the ministerial Bench. We should not forget that when considering the Government’s claims that we are overrepresented in Parliament by comparison to other nations.

As a result of the exercise of patronage by Mr Cameron, possibly advised by Mr Clegg, there are now 95 Ministers in the House of Commons and 46 Parliamentary Private Secretaries. The Constitution Unit tells me that that represents more Parliamentary Private Secretaries than there have ever been. The payroll vote is 141 out of 650 Members of Parliament. A year ago, Mr Cameron, addressing the Conservative Party asked:

“How has the mother of all Parliaments turned itself into such a pliant child?”

The answer is that it has done so on the basis of thorough, systematic and unscrupulous use of Prime Ministerial patronage. The Prime Minister is now able to answer that question he posed a year ago. Ministers in the coalition Government profess to repent themselves of this; but, like Saint Augustine, they do not intend virtue just yet. This Bill provides an opportunity for them to embark on a reformed life, but they hesitate—indeed, decline—to take that opportunity.

This is a very important constitutional issue. It is about the capacity of the House of Commons to debate with some measure of freedom, to scrutinise with some independence and to hold the Executive to account. The capacity of your Lordships' House to do that is under threat, in consequence of the coalition having a political majority in this House. The plight of both Houses of Parliament must now be a matter of intense concern. The proposed new clauses provide the opportunity to assist the House of Commons to recover its capacity to perform the function within our constitution that the people expect of it.

--- Later in debate ---

[Lord Grocott]

My Lords, I simply want to say a couple of words on this because I suggested an amendment in Committee and as the noble Lord, Lord Forsyth, has said, he raised this at Second Reading. At whatever time of the night it was during Committee, I moved an amendment which, I admit, was not as good as this. I tried to find a way in which we could debate the effect of changing the size of the House of Commons and its relationship with what was happening to the size of this House.

This is an extremely important amendment. I hope that it does not embarrass the noble Lord, Lord Forsyth, if I tell him that I agreed with absolutely everything that he said about the relative size of the two Houses and the effect on this House if it grows and grows. Like him, I need to put in the caveat that this is in no way a criticism of the people who have been appointed to this House, many of whom have already made a tremendous contribution. However, there has to be a limit. I say this in the spirit in which the House is operating at the moment: I think that the noble Lord, Lord McNally, assured us on the previous amendment that the Government really were taking an overview of the three key constitutional reforms that are taking place. However, the constitutional changes are connected not just with the legislation involved in this Bill and the two Bills that are to follow. They are also affected, as the noble Lord, Lord Forsyth, has said, by the way in which the composition of this House alters, irrespective of any change in the legislation.

I conclude with my only point of disagreement with the noble Lord, Lord Forsyth. He quite rightly said that a fully elected House could easily end in gridlock. That is certainly one end of the spectrum, but there is another, which is particularly relevant to this Bill. This is no criticism whatever of the coalition, which is the first time I have been able to say that. It is that had this been a fully elected House on proportional representation, this House would have had a huge government majority. This Bill, far from being gridlocked, would then have gone through this House whipped—and how can I, as a former Chief Whip, criticise a Whip? It would have gone through quickly and almost certainly have been guillotined. I hope that when the noble Lord, Lord McNally, explains the position in relation to the two Houses, while he cannot respond on the proposals that he is bringing forward on abolishing this House in its present form and replacing it with an elected House, he will have something to say on the almost absurd disparity where, just as we are moving the House of Commons down to 600, the House of Lords exceeds 800.

[Lord Howarth of Newport]

My Lords, I agree with every word that the noble Lord, Lord Forsyth, said. The coalition appears to have invented a new-fangled constitutional doctrine: that the strength of the parties in the House of Lords ought to reflect the electoral support that they obtained at the last general election. It may be that the noble Lord, Lord McNally, will indeed expound to us that doctrine. I do not know that but I would certainly be most grateful if the noble Lord, Lord Forsyth, when he comes to his concluding remarks, would let us know what his own opinion of that doctrine is.

[Baroness O'Cathain]

First, I support my noble friend Lord Forsyth on the basis of the reputation of this House, which will be eroded significantly if we carry on like this. Secondly, it is very difficult to do the proper job that those of us who work in Committees have to do here when we find ourselves without even a place to sit, if we come in late to some of the debates here in the House. It is making the working conditions very difficult indeed. Can my noble friends in the Government give us some assurance that this will be looked at seriously, because we cannot go on like this? If we have the same number of Peers coming in over the next few months as we have had over the last few, it would make the whole place intolerable. Again, I support my noble friend in saying that there is no suggestion that the people coming in here will not do the work, but it will just be impossible to get the work done.

Parliamentary Voting System and Constituencies Bill

Lord Howarth of Newport Excerpts

Monday 24th January 2011 Lords Chamber

[Lord Tyler]

My Lords, I think that I was under the same misapprehension as the noble Baroness, Lady Finlay, until I actually heard precisely what the noble Lord, Lord Lipsey, said. I should say that I know the constituency in question extremely well. My brother has lived there for many years, and of course Richard Livsey was one of my closest colleagues; I campaigned for him, I worked with him and for him both in the other House and in this House, and I was privileged to attend his funeral service, which was one of the most moving I have ever attended.

We should be clear, however: this amendment is not proposing that this constituency should be made an exception. It does not add to the list of exceptions. The amendment would change rule 4 for every constituency in the country. I do not understand why the noble Lord, who is usually meticulous in preparing amendments, moved it in totally different terms. It may or may not apply to the constituency of Brecon and Radnorshire but it certainly introduces a completely new rule for the whole country. Therefore, if I may say so, the noble Baroness, Lady Finlay, should look very carefully at the amendment. It changes rule 4. I understand that it may or may not apply to this constituency, but the noble Lord, Lord Lipsey, is making sure that there is a completely new set of criteria for every constituency—in Scotland, England, Northern Ireland and Wales. It does not provide for an exemption.

[Lord Howarth of Newport]

I put it to the noble Lord that it is surely sensible, as my noble friend proposes, to develop sensible rules of general application, rather than to proceed by amending the Bill here, there and elsewhere by adding new clauses to create anomalies and exceptions to unsatisfactory rules, as we have them at the moment in the draft Bill. That is why my noble friend’s amendment is very sensible.

[Lord Tyler]

It does not do that; it provides completely new criteria, which would presumably change over time. That is not clear from the amendment. The amendment is defective, even in the terms in which the noble Lord, Lord Lipsey, has proposed it.

--- Later in debate ---

[Lord Davies of Stamford]

We touched on this matter before, but it seems to me important to make the point quite clearly that there seems to me to be all the difference in the world between “may take into account” and “should take into account”. I ask noble Lords to put themselves in the position of members of the Boundary Commission—or members of any commission charged by Parliament to undertake an important task. If you have a criterion that says that you “may” do something, that is not a positive criterion; that is not guidance that this is a value on which Parliament sets some store; that is not a message from the people via Parliament to respect certain considerations or to take them into account. It is not a positive criterion at all—it is the absence of a negative criterion. The phrase “may take into account” means that, if you are minded to do so, if you really want to do so, we do not prevent you from doing so. We do not deny you the opportunity of doing so. However, there is no positive suggestion whatever that these considerations should be taken into account. Can that seriously be the Government’s intention? Is it seriously the intention of anyone in this Committee that some positive value should not be ascribed to considerations such as local government boundaries, for example, or, going back to our former debates, a sense of local community and so on? Surely the whole tone of our debates has been that these are genuine values, and the question is: what sort of trade-off should we make between these considerations and the desiderata, which are genuine, as I have always admitted, in terms of uniformity of numbers? I give way to my noble friend.

[Lord Howarth of Newport]

When the Bill says “may take into account”, is it not either disingenuous or simply confused? In reality, the 5 per cent limit in tolerance around 76,000 voters means that in practical terms it will be impossible for the Boundary Commission to take these other factors of geography and local government alignments and so forth into account, should it wish to do so. It can perhaps take them into account but there is nothing it can do about them.

[Lord Davies of Stamford]

My noble friend makes a very important point. It is a separate point but it is obviously clearly related. If you allow someone to do something or if you provide a purely permissive criterion—what I would call the lack of a prohibition; that is all it is—the question is whether they will have the slightest motivation in the first place to use that permissive ability that they have been granted. As my noble friend says, there is no suggestion at all in the Bill that these matters should be given any consideration or value whatever.

It is perfectly true that, until now, historically the Boundary Commission has in practice tried to respect local government boundaries and county boundaries in almost all cases, although I gather from our earlier debate this evening that there may be some exceptions in respect of ward boundaries, for example. Nevertheless, we are now giving the Boundary Commission new instructions which do not set any explicit value on these things at all. The Bill says, almost reluctantly, “Well, you can take account of these things if you really insist on doing so”. However, as my noble friend said, we then provide other constraints—particularly that of the 5 per cent rule and the requirement to reduce the number of MPs by 50 to 600, which we know will produce a very large number of boundary changes. In practice, that will make it certain that, even if the Boundary Commission is minded to take advantage of its ability under the Bill to consider matters of local boundaries, it will not be able to do so. The commission is receiving no indication whatever from Parliament in the Bill as it currently stands that it might be desirable to retain the tradition which it has long maintained of respecting these boundaries. Therefore, I think that there is all the difference in the world between “may” and “should”, and I congratulate my noble friend on bringing this dilemma to the fore. It is something that we really do need to discuss.

We have heard time and again from the Government and elsewhere on the government side that, other things being equal, they believe it is inherently desirable that local boundaries are respected. Can they not, if they wish to do so, come up with different wording which at least reflects the value that they acknowledge we should be attributing to these considerations? Can they not send a signal to the Boundary Commission which says in effect, “If you possibly could, we would be delighted if you were to take account of local boundaries”? Can we not send some signal or instruction to the Boundary Commission saying, “For generations”—ever since 1949, I believe—“you’ve been right to take account of these considerations. Please don’t drop that now. We aren’t trying to tell you that that was wrong. We aren’t trying to tell you that you should go back on that tradition or those values and ignore them. We’re not just giving you a reluctant permission if you really insist on taking account of these things; we would like you to do so if you can somehow manage it”.

That surely is the sense of the message that Parliament wants to send to the Boundary Commission—the sense of the message that has been articulated in different ways from all parts of House, including from the noble Lord, Lord Tyler, who has taken an important part in these debates. Surely the Government cannot really, on reflection, be entirely satisfied with this very negative formulation of “may”. I hope they can accept the proposal of my noble friend that the text should be changed to “should”. If not, can they not find some better way of encapsulating the message which, I am sure, in good faith, they themselves have been delivering to us, not just tonight but throughout our deliberations on this Bill?

--- Later in debate ---

[Lord Howarth of Newport]

Is it not unfortunately true that people who are significantly less well off than those in the affluent constituencies that my noble friend was just talking of will be even less likely to be able to afford to resort to electronic means of communication given the cuts in benefit that the coalition is planning? At least, until now, they might have had the opportunity to go to the public library to find a computer to communicate with my noble friend’s successor as Member of Parliament, but that, too, will be less likely to be available for them as a result of the cuts to public library provision.

[Lord Foulkes of Cumnock]

My noble friend is again right. I sat through about half of the debate on housing benefit and was really impressed by the speeches from all sides, particularly from the Liberal Democrats— including my old friend the noble Lord, Lord Kirkwood of Kirkhope—all arguing against the cuts in housing benefit. The cuts will certainly make it more difficult for poor people to access their elected representatives. As my noble friend said, cuts to library services will have the same effect.

To illustrate the increasing demand in MPs’ casework, I quote a couple of examples that I hope, since they do not come particularly from Labour, might convince Members opposite. According to Wilks-Heeg and Clayton, authors of Whose Town is it Anyway? The State of Local Democracy in Two Northern Towns, published in 2006 by the Joseph Rowntree Charitable Trust, an MP in the 1950s or 1960s, which is even before I was a Member of Parliament and probably even before my noble friend Lord Kinnock was—

--- Later in debate ---

[Lord Foulkes of Cumnock]

My noble friend is absolutely right. I found it starkly revealing to sit next to colleagues in the House of Commons who represented constituencies in Bradford or Birmingham, where more than half the people whom they represented were from immigrant families. They may not have been immediate immigrants—they might have been second or third generation—but there were a huge number of them. It was a real revelation to me to find out about the huge workload arising from that. Repatriation of some of the money that they raised was one way in which their spending income was reduced. My noble friend Lady Liddell was in the same situation as me, representing a former mining constituency. We had a huge case load of former miners, after the previous Conservative Government under Mrs Thatcher forced the closure of the mines in Scotland and elsewhere. They were getting compensation for pneumoconiosis, silicosis and vibration white finger. I had not dozens but hundreds and hundreds of people coming to see me and each of them had a huge problem to raise. So we learnt that from each other.

[Lord Howarth of Newport]

My noble friend draws attention to the large volume of casework that falls to be carried out by Members of Parliament representing, for example, former mining constituencies or constituencies with a high proportion of immigrants resident in them. In doing so, does he not highlight the fancifulness of the Government’s contention that they will save £12 million by reducing the size of the House of Commons from 650 to 600? I understand that that £12 million is compounded of £4 million for MPs’ salaries and £8 million for their office costs. In light of the factors that my noble friend has just mentioned, they are plainly not going to save the office costs component of that. In fact, those costs would have to rise for individual Members of Parliament to enable them to carry out their duties. Would not it therefore be better to be done with it and stay with at least the existing number of Members of Parliament?

[Lord Foulkes of Cumnock]

I absolutely agree. The more that we go through this Bill, paragraph by paragraph, the more it unravels—and the more it becomes clear that the original contention that we should reduce the number from 650 to 600 is absolutely crazy. The initial premise forces the Government into all the other crazy things in the Bill, such as preserved constituencies and the figure of 13,000 square kilometres.

--- Later in debate ---

[Lord Foulkes of Cumnock]

Sometimes, also, actions have consequences that are unseen and unpredicted. It is only when we examine collectively the provisions that these unintended consequences become obvious. It is our duty and responsibility to point them out. But before the noble Viscount intervened, I was coming to the end of what I was saying.

[Lord Howarth of Newport]

Might the implication of the intervention by the noble Viscount, Lord Eccles, really be that we have not tabled enough amendments to enable us to scrutinise every aspect of the Bill point by point? Indeed, I suggest to my noble friend that he is being remarkably constrained. For example, we should consider the fact that in the Legislative Assembly of Ontario in 1997 the opposition parties tabled 11,500 amendments to a Bill intended by the Progressive Conservative Government in Ontario to amalgamate metropolitan Toronto with the city of Toronto. Does that not make my noble friends on this side of the House appear to have been remarkably self-disciplined and restrained in their tabling of amendments?

[Lord Foulkes of Cumnock]

I certainly agree. I feel almost inadequate in terms of our scrutiny in the light of what my noble friend has said, but I finish—

--- Later in debate ---

[Lord Campbell-Savours]

I would like to have heard in the debate more references to the distinction between targets and caps, because that is essentially what we are debating. I agree with my noble friend. I was listening to the intervention of my noble friend who moved the amendment, and the intervention of the noble Lord, Lord Tyler, who referred to the new constituency that would be created being the maximum. It would be a huge constituency that would be utterly unmanageable, where the issue of accessibility would simply have gone out of the window, which is why I asked the noble Lord, Lord McNally, how he understands the relevance of accessibility. That constituency would have no proper representation. It would not be possible in the context of the size of the constituency that would be created. It could not, by any stretch of the imagination, have proper representation.

However, I wish to use paragraph 5(b) to the proposed new schedule, referring to,

“local government boundaries as they exist on the most recent ordinary council-election day before the review date”,

as a peg to draw attention to the conversation that took place at one of my dinner engagements last week. Someone raised an issue, and I suddenly thought, “That is particularly relevant to what we are discussing in this House”. The whole process in which we are involved is, we are told, essentially about equalisation. The noble Lord, Lord McNally, keeps referring to votes of equal value. That is a very interesting principle. The question is: where, when and in what circumstances do you apply that principle? I want to draw attention to other circumstances where that should equally apply, if you take the word that everyone is using, “localism”, into account. I want to see whether this localism—a sort of bottom-up principle—applies to this area.

I want to give as an example what is going on in Westminster, where we now sit. We are within the area of the Westminster local authority. I have here a list of all the wards within that authority. I was wondering how far this principle of equal votes of equal value applied in Westminster. I simply draw the attention of the House to what is going here. If we are prepared to have flexibility here in Westminster, why can we not apply the same flexibility throughout the whole of the United Kingdom? In every ward in Westminster there are three councillors. There are 20 wards. I want to draw attention to the variation in electorates within the council area where the Houses of Parliament stand. Knightsbridge and Belgravia has an electorate of 6,400, Tatchbrook has 6,400, Churchill 6,500, West End 6,600, Marylebone High Street 6,700, Little Venice 7,100, Maida Vale 7,200, Warwick 7,200, Vincent Square 7,300, Abbey Road 7,300, Bayswater 7,400, Church Street 7,500, Regent’s Park 7,600, Hyde Park 7,700, Bryanston and Dorset Square 7,800, St James’s 7,900, Harrow Road 7,900, Queen’s Park 8,100, Lancaster Gate 8,200 and Westbourne 8,300.

It seems that in Westbourne, the 8,300 electors voted in three councillors; but if you live in Knightsbridge or Belgravia, the 6,400 electors vote for three councillors. Where are votes for equal value there? We are dealing with the budget of one the largest local authorities in the country. I understand that Westminster’s budget is greater than those of some government departments. What about votes of equal value? Councillors elected to those wards are taking decisions on the use of these vast resources. I find it incredible that—guess what?—the largest electorates to elect the three councillors are in the Labour wards. So, built in to the arrangements for this votes-of-equal-value principle is an arrangement in Westminster whereby Labour voters are penalised and the individual voter has less influence on the expenditure of Westminster City Council. So much for votes of equal value.

Someone else told me that this is going on all over the country.

[Lord Howarth of Newport]

The situation in the constituency of the Cities of London and Westminster is even worse than my noble friend has suggested. It is a constituency where underregistration is particularly extreme. It is thought that the registered electorate in that constituency is only some 60 per cent of the 16-plus population. So we are talking about extremely skewed patterns of electoral representation in both local government and the Westminster constituency of this part of London.

[Lord Campbell-Savours]

My noble friend has referred to an issue that I intend to raise. I do not know whether we will be going at eight o’clock or nine o’clock tomorrow morning, but we may well get to the amendment where I wish to raise that issue. I have some important information to place on the public record about the population of the Westminster area and we can perhaps deal with those matters later on.

On the Westminster statistics, when I was in conversation today with others I was told that Westminster has by no means the worse differential in its electorate; there are parts of the country where some councillors are elected in wards with half that number of people on the register. I give way to the noble Lord, Lord Garel-Jones.

Constitutional Reform: Referendums

Lord Howarth of Newport Excerpts

Monday 24th January 2011 Lords Chamber

[Lord McNally]

My Lords, as I say, it is a subjective judgment, but that would seem to be one possible dividing line when looking at these matters. It would, in each case, be a matter for the Parliament of the day.

[Lord Howarth of Newport]

My Lords, if a constitutional change is to be submitted to a referendum as the price for holding two parties together in a coalition, is that not a poor reason and a worrying precedent?

[Lord McNally]

It certainly would be if that were ever to happen in the future.

Parliamentary Voting System and Constituencies Bill

Lord Howarth of Newport Excerpts

Wednesday 15th December 2010 Lords Chamber

[Lord McNally]

My Lords, I thank noble Lords for their questions. The principle is that the clause was inserted in response to the committee in the other place asking for clarification. We have put Clause 5 into the Bill to ensure that media outlets are not caught by spending restrictions that are in place in terms of publishing information about the referendum. The media play a vital role in building public awareness and presenting facts and opinions on the matters raised by the poll. This amendment ensures that the media's ability to carry out that role and to exercise the usual freedom of the press and broadcast media is not restricted in any way. That was our intention.

On the point that the noble and learned Lord has just raised, I will have to check again with the Electoral Commission, but I believe that if in making a referendum broadcast, one or other of the campaigns was to indulge in the kind of expenditure to which he referred, that would be counted as expenses.

[Lord Howarth of Newport]

Does not this whole debate point up very clearly the absurdity of holding the referendum on the same day as other elections? It will be completely impossible to police the distinction which the Government seek to make between coverage that is referendum-related and coverage that is election-related. What if a programme or an article discusses both those topics together? It cannot conceivably work. My noble friend Lord Snape reminded us of how perplexing and confusing voters found it in 1975 when they found politicians of different parties on different sides of the argument. If I remember rightly, that referendum was not held on the same day as other elections; but it still caused people to scratch their heads. It will be completely impossible to sort this out if the two processes are carried forward on the same day. Will not the Government now accept that?

[Lord McNally]

I do not mind the constant argument about how people are going to be confused by this, but one lesson that we have learnt since 1975 is that a referendum and elections can be held on the same day, because we have done it. There is no reason why the two cannot be run together. To be absolutely clear, the extra expenses would come under Schedule 14.

--- Later in debate ---

[Lord McNally]

I have every confidence that those in government know how to consult the political parties they come from. I see no problem here and I have certainly not encountered one. As will have been noticed throughout the debate, on my Benches my noble friends Lord Tyler and Lord Rennard are both plugged into and expert on these matters for the Liberal Democrats. The noble Lord’s concern is touching, but I can assure him that it is not a problem.

[Lord Howarth of Newport]

When Ministers consult with political parties about the processes that it might be appropriate to incorporate into this legislation, can the noble Lord assure us that they seek to act in a spirit of disinterestedness? After all, it would not be appropriate for the Government to stack the system so that it would benefit what the parties perceive to be their particular interests. Can he assure us that the Government’s hands are clean in this process?

[Lord McNally]

Absolutely clean. The problem about this, and the reason we are having such difficulty in convincing the Benches opposite, is that our whole aim is to get fair votes on the basis of fair constituencies, which obviously discomforts them.

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[Lord Mackay of Clashfern]

Before the noble Lord seeks to answer that question, this debate has got to a stage where people seem to have forgotten that a statute dealing with referenda was passed by the previous Administration. It deals with all of these questions in considerable detail. There are some additional questions because as time has gone on more difficulties have emerged—for example, in relation to the internet—but there are already considerable provisions in the law about that. It is important to remember that this debate should be about this particular Bill and its particular circumstances.

[Lord Howarth of Newport]

Do we not need to learn the lesson from, for example, the referendum on a regional assembly in the north-east, where the no campaign was led by business interests? That campaign was relatively well-funded and was clearly against Labour Party policy. In effect, therefore, it was significantly in the interests of the Conservative Party. Does the Minister feel that the lessons of that experience have been adequately absorbed and that the existing legislation to which the noble and learned Lord, Lord Mackay of Clashfern, referred satisfactorily covers such circumstances? Or does he feel that the legislation governing referendum expenses needs to be brought up to date in the light of that example of how money can be spent in a political cause but not overtly by a political party?

[Lord Maxton]

The noble and learned Lord, Lord Mackay, mentioned the internet. Perhaps I may give an example to follow on from what my noble friend Lord Howarth said about business people. Sir Sean Connery is a major benefactor of the Scottish National Party, but he is not a taxpayer in this country. He is not therefore bound by rules on expenditure if he is spending that money on advertising via the internet rather than by other means. I presume that there will be other business people, some from the Conservative Benches, who may be in the same position; that is, they are non-taxpayers but can use their money to influence the referendum through the internet in a way that is uncontrollable by the Act.

--- Later in debate ---

[Lord McNally]

My Lords, on the question of how these rules are applied, I suspect that the noble Lord, Lord Lamont, and I have a philosophical difference. As I said earlier, I supported the 2000 legislation and the setting up of the Electoral Commission. I am not in favour of the untrammelled process of elections. You need rules and checks and balances if you are going to offer a level playing field in these matters. Much of what was done during the period of the previous Government was worthy of support in making our electoral systems fairer and more transparent in funding and process. What is clear about the process is that much of what is in the Bill, although it is a fairly thick Bill to look at, and certainly what is in this clause, rests on tried legislation that is already in place.

[Lord Howarth of Newport]

As my noble and learned friend Lord Falconer and the noble Lord, Lord Lamont, have rather compellingly pointed out to the Committee, there are real and practical problems with the existing rules. Does the noble Lord consider it to be the responsibility of the Government to iron out these difficulties and to put into place a more satisfactory set of arrangements, or is he saying that it is for the Electoral Commission to modify the rules as it thinks best? If the latter, is he satisfied that the Electoral Commission has the freedom and scope actually to do that?

[Lord McNally]

The answer has to be yes, as if we did not have that confidence in the Electoral Commission we would be in a very odd place. As I said, we support the trusting of the commission, which will publish guidelines on how these rules will operate. It is for the designated organisations and the other parties campaigning to work within those rules.

[Lord Howarth of Newport]

No one is suggesting that the Electoral Commission is not to be trusted. The question is whether the commission has the scope under existing legislation to make the changes that may be necessary.

[Lord McNally]

Part of the debate is how much the changes need to be made. We believe that they do not and that the existing rules and regulations will stand. We see no reason to change the current legislation on spending limits for this referendum. Quite apart from seeing no compelling reason of principle, we should consider the practical effects. We are not far away from the start of the referendum period and changing the rules at this late stage could penalise permitted participants unfairly. In particular, we do not agree that there should be different spending regulations for this referendum compared with others, as the amendment suggests. We do not agree that there should be this distinction and we believe that the current spending regulation framework should apply to this referendum.

--- Later in debate ---

[Lord McNally]

All right, we can spend a lot of time on this. I am not going anywhere. If the noble Lord wants to get up again then he can, but the argument about £20 million being spent on the campaign could have been used in any election in the past 100 years. It is not going to happen in this referendum.

[Lord Howarth of Newport]

We are not talking about an extreme and highly unlikely possibility; we are talking about the possibility that someone with perhaps £2 million to spend could parcel it out between different beneficiaries who would all then campaign on one side of the referendum argument.

The Minister just said two things that are in conflict. He said that he had confidence in the rules and regulations as they are now but, when he was asked by my noble friend Lord Campbell-Savours what there was to stop this kind of abuse, he said that he frankly suspected that there was nothing. Those two remarks are in conflict with each other. This is a very important issue. We need to know the answer to the question, and if that answer is not satisfactory then the legislation needs to be amended to ensure that such abuse cannot take place.

[Lord Glentoran]

I just wonder if the biggest lump of money that has interfered with elections over many years has been that of the large trade unions. They come together as a bulk with a huge amount of money, bigger than that of any individual.

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[Lord McNally]

The straightforward answer is that the question will be never ending. We will always be looking at how these things are regulated. We will always be looking at whether the rules can be tightened, improved or made more transparent. The question is whether you can conduct a referendum on a fair and transparent basis under the terms of the legislation proposed in the Bill. It is the opinion of this House and it was certainly the opinion of the other place that we could do that. The questions raised on the opposite side may be reasonable, including the question on the funding of political parties, which again will be an ongoing matter. That is why the Committee on Standards in Public Life is looking at that very issue, and this party and this coalition Government will legislate on the funding of political parties.

[Lord Howarth of Newport]

Of course the Minister is right to say that there will be continuing debate on this range of issues. However, on the specific issue of potential abuse to which the noble Lord, Lord Lamont, alerted us, and which my noble friend Lord Campbell-Savours and others agree should be taken seriously, the Minister said just now that in his view nothing in existing legislation would safeguard against that abuse. That is very worrying, and it will not do for the noble Lord to seek blandly to assure us that the legislation is probably good enough and that we should proceed with it. The Government have had plenty of time to think about these issues. This Bill was introduced months ago, and it is the responsibility of the Government to ensure that the rules governing the conduct of referendums are sufficiently rigorous to provide against such abuse occurring.

[Lord McNally]

But if the Opposition, or even my noble friend, are putting forward hypothetical threats to the fair conduct of the referendum, I am not sure that any piece of legislation on God’s earth can meet every imagined threat.

[Lord Howarth of Newport]

Not every threat; but this is a specific abuse that was forensically identified by the noble Lord, Lord Lamont.

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[Lord McNally]

My Lords, it is reassuring that the power of argument and eloquence still triumphs in this House.

Clause 6 and Schedule 9 to the Bill ensure that all permitted participants in the referendum that are not political parties are covered by the same regulations regarding loans as already apply to political parties that campaign in the referendum. The Bill does this by creating a new regime for the regulation of loans to permitted participants which closely reflects the rules that already govern loans made to political parties in Part 4A of the Political Parties, Elections and Referendums Act 2000. Part of this regime is the creation of 13 new offences applicable to those permitted participants in the referendum. Again, these offences replicate the offences that already apply to major political parties through Part 4A of the 2000 Act.

This amendment seeks to apply the Electoral Commission’s new civil sanctions powers—they came into force by order on 1 December—so that they are available in relation to 12 of the 13 new offences created by the Bill. The civil sanctions regime was inserted into PPERA 2000 by the Political Parties and Elections Act 2009. It is intended to allow the Electoral Commission to apply sanctions that are appropriate to the nature of each contravention and to use new approaches to secure compliance with the law where appropriate rather than referring a case for criminal investigation. The civil sanctions include fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings.

It was not possible to prescribe the new loans offences that the Bill creates in the order so as to apply the civil sanctions regime to them on 1 December. That is because the new loans offences have not yet been approved by Parliament and will not be approved until this Bill obtains Royal Assent. However, the order that came into force on 1 December prescribes the existing offences regarding loans to political parties. This means that there would be a disparity between how political parties and other permitted participants who receive loans to fund their referendum campaigns could be sanctioned if we were not to apply the civil sanctions provisions to the new offences by making this amendment. Our amendment will ensure that civil sanctions powers are also available for the new loans offences and will close off this disparity. The result is that any permitted participant who commits a loans offence after Royal Assent could be subject to civil sanctions imposed by the Electoral Commission. I beg to move.

[Lord Howarth of Newport]

My Lords, I detect some inconsistency in the Minister. He is using this legislation to introduce new rules concerning loans but he has spent a considerable amount of time this afternoon telling the House that it is not appropriate to use this legislation to change rules in respect of other matters that may arise in the conduct of referenda—for example, expenditure on publicity or the rules governing the donations that authorised individuals may give. Why is it okay for the Government to change the rules here where it happens to suit them and not in those other respects?

[Lord Soley]

May I ask for clarity? I found the Minister’s comments confusing. He seemed to be saying that, because the rules were not ready, we could not change this, but he was setting aside time or something—I did not understand that bit—so that we could change it at a later date. I think that he needs to explain that a bit better.

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[Lord McNally]

First, I do not believe that the role of the Electoral Commission is as passive as the noble Lord, Lord Soley, suggests, as was demonstrated by the fact that it suggested a better question for the referendum, which was taken on board by the Government and implemented in the Bill. I supported the establishment of the Electoral Commission and welcomed the introduction of political input into its deliberations. I remember when we first discussed it, the noble Baroness, Lady Gould, and others and I pointed out that there was a necessity to have some sensitivity about how political campaigning was carried on by mainly voluntary organisations. The Electoral Commission has performed its duties well, and I have every confidence in its being able to carry out its responsibilities under the Bill.

[Lord Howarth of Newport]

I am glad to hear the Minister affirm his confidence in the Electoral Commission. Does he repudiate the very unkind remarks about the chair of the Electoral Commission made by his right honourable friend Eric Pickles a few months ago? The chair came under heavy personal criticism from his right honourable friend.

[Lord McNally]

I shall not comment one way or the other on extraneous interventions like that, for goodness’ sake.

The noble Lord, Lord Lipsey, gave me a slap about getting irritated, but the point is that these election rules and regulations—most of the schedules to the Bill—are straight lifts from existing legislation put in place by the last Labour Government, so it comes as a surprise that people who were Ministers in that Government suddenly find all kinds of loopholes and dangers in that legislation. We have transposed into the schedules existing legislation, bringing it as up to date as we can with this amendment and this clause.

I am not a lawyer but, as far as I understand it, the civil sanctions have been brought in because, as I said earlier—and this is not in my brief but from my understanding of it, so perhaps if I am wrong one of the experts behind me can correct me—the criminal sanctions in the existing legislation were felt to be far too heavy-handed, particularly as they applied to volunteer officers in political parties. A range of civil sanctions were brought in that allowed the Electoral Commission a degree of flexibility, from giving a little advice to an errant officer to applying heavy sanctions. That flexibility was intended in bringing in civil sanctions. The decision on how to apply them is one for the Electoral Commission.

As noble Lords know from briefings sent to them, the Electoral Commission is following very closely these deliberations and listening very closely to the points made by noble Lords on all sides. I have every confidence that, if a point is made that the Electoral Commission thinks is of substance and needs to be dealt with, it will not hesitate to bring this to the attention of Ministers and Members of the Opposition, just as it has done in the past. The clause is a fairly narrow one to make provisions regarding the regulation of loans and bring the regulations under the referendum up to date with the legislation already introduced on 1 December.

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[Lord Lipsey]

My Lords, this is not the greatest matter before us, but it is an important one and I support the amendment. If there is one rule that one learns in life, it is that making two people responsible for something is a recipe for it not getting done properly. There is not one person to blame or to take the lead and it leads to confusion and non-action. That is my first point. My second point relates to precisely the other side of the coin of the argument put by my noble friend Lord Bach; namely, the present occupants of this position. On the one hand you have the Justice Secretary, who is a passionate supporter of first past the post. On the other hand, you have the Deputy Prime Minister, the Lord President, who is a passionate supporter of AV. They have come together in this coalition and that is simply a fact.

But honestly, there is scope here for mischief-making—and I used to be a journalist. There could be real mischief: for example, the Justice Secretary waits until the Lord President of the Council has gone off for the weekend to make some amendment or order under the Bill to suit his book. More likely, there will be journalistic mischief-making, where the fact that these two gentlemen agree on the Bill when they do not agree on the subject of it is elevated and makes a good diary paragraph. I am sure this Government’s backs are extraordinarily broad. They probably do not read the newspapers at all and are not the least interested in the gossipy things that I suspect might arise from this, but it does seem a completely pointless goal to leave the matter without a goal-keeper so that anybody can have a pot-shot at it.

[Lord Howarth of Newport]

Does my noble friend agree that this is significant in terms of proper accountability to Parliament? Parliament needs to know which Minister within the Government holds responsibility, and the statute ought to make that clear.

[Lord Lipsey]

My noble friend makes clear in more formal terms what I meant by confusion. Parliament is indeed one of the bodies that could end up confused.

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[Lord Howarth of Newport]

Can I press the Minister a little bit on his statement just now that the Lord President—the Deputy Prime Minister—steered this legislation very successfully through the House of Commons? Is his concept of successful passage through that House that the Bill was programmed and that very important sections of it were not examined either in Committee or on Report? Yes, the coalition got its way in the House of Commons but the upshot of that is that there is a particular duty on this House to examine the Bill in the most minute detail, precisely to make up the deficit caused by the failure of the House of Commons to examine this legislation properly. What does the Minister mean by successfully steering the Bill through the House of Commons: that the Bill should be properly scrutinised, or simply that the Whips should ensure that it passes without being scrutinised?

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[Lord Soley]

I would not have intervened again, except for the way that the Minister addressed his last comment. That was not helpful. It is where he actually makes matters worse. My noble friend Lord Rooker is exactly right. The noble Lord talked about his vast experience but I know of many experiences of both kinds of Government increasing a Bill by piling in extra clauses that then come before this House. It does not help to try and score a party-political point. The other side of the argument is that on the last occasion we debated this—I forget which day that was—I quoted from a Conservative MP’s letter, which stated very clearly that he had only five minutes to discuss an issue of great importance and did not have time to speak at all on the main debate for it. There were members of the Minister’s Government complaining about lack of time.

My advice to the Minister is not to get into this party-political knockabout. A Bill like this, which is very important to the Government but very complex, will inevitably expand over time if it is hurried through in the way that the Government are doing. That is what has happened and that is why all those extra clauses, to which my noble friend Lord Rooker referred, have been added. It also explains why some people on the Minister’s own side who were opposed to certain aspects of it complained about the lack of time in the House of Commons. I simply say: for heaven’s sake, drop this idea that it is all one party’s fault. That is nonsense.

[Lord Howarth of Newport]

Does my noble friend agree also that the fact that the Bill has been added to on such a massive scale by the Government during its passage through the House of Commons—indeed, we have just been examining a new government amendment—indicates that it was prepared in great haste? Yet at the same time, the Government are insisting that the Bill must move very fast indeed towards the statute book. Can it be right to prepare a Bill so hastily that large-scale improvisations have to be made by the Government in extending it, even as they insist that it is rushed through and therefore skimpily scrutinised?

[Lord Falconer of Thoroton]

My Lords, I have to rise in relation to the rather casual accusation made by the noble Lord, Lord McNally, that it was just time-wasting down the Corridor. As the noble Lord will know, because he has been a Member of Parliament himself down there, the effect of the guillotine Motion—although he was perhaps not there when there were guillotine Motions—is that certain amendments are not reached because there is not enough time. The idea that they talked on and on to make it last seems to be misplaced. The worry about what the noble Lord said is that that casually dismissive remark is the sort of remark that is then used to dismiss parliamentary scrutiny of Bills—“we can dismiss what is being said because it is all time- wasting”. I thought one of the principles on which his party and the other party with which he is now in coalition put to the electorate was that we would respect Parliament more rather than treating it with the contempt he has just shown.

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[Lord Rooker]

My Lords, I did not really see the significance of my noble friend’s amendment when I was reading through the Bill, and I missed this.

I am thinking back. I know that we are going to be told that the 1975 referendum was not declared by constituency. If I remember rightly, one of the arguments used at the time was, “It would be very uncertain if MPs who had campaigned on one issue about the EU found that their constituents had gone against them”. I recall it being a bit mixed up. I was part of the no campaign, in that sense—I certainly voted no, anyway. In this case, though, the issue is very personal to the MPs concerned because it is about their voting system.

Take the districts. I used to represent part of Birmingham. The whole of the city gets lumped together, no one gets embarrassed about which way a particular constituency has gone and everything is in the melting pot. It is easier to count when all the constituencies have been lumped together, but where does that leave the Members of the Welsh Assembly and the Scottish Parliament elected on that day? They will be out campaigning. The results will be declared in their constituencies for AV or not. So, you will be covering it up for some so as not to cause embarrassment, but not for others.

I am unaware of a constituency called “the Isles of Scilly”. If I remember right, the Isles of Scilly are part of a constituency on the mainland. That is my understanding. Why on earth are they singled out in this way? On Northern Ireland, I hope that we will not have the argument about there being an east and a west and a green and an orange. We do not want any arguments about which constituency went which way. We do not want any arguments about lumping it all together. You cannot use all these arguments to defend this set of voting declarations. Whichever you use for one is contradicted by the other.

It cannot be being done for the administrative convenience for the Electoral Commission. It is not doing the counting. The counting officers are doing the counting—a well-oiled machine, highly sophisticated in counting votes in this country based on wards and constituencies. I freely admit that a little bit went wrong but not on the counts. Why deviate from that? Why deviate from the tried and tested system that we know works for counting? People know where to go. They know where their counts are. The type of people who do the counting go to the same place virtually every year and are almost on a permanent contract. Why interfere with a system that works? I have offered up some of the issues.

I would like an explanation about the City of London. Normally when there is a count for the constituency, are we referring to the City of London as the city or as the constituency of the City of London, because it is not quite the same, is it? I am not certain. I am a bit out of touch. Is it a constituency or not? I am not certain why the Inner and the Middle Temples should be treated differently. It is reasonable to have an explanation for each one of these because the answer to one has to contradict the answer to another. So I await with interest the response of the noble Lord, Lord McNally.

[Lord Howarth of Newport]

I support my noble friend Lord Grocott. This referendum is to be about the choice of a parliamentary voting system, so it is bizarre not to declare the results on the basis of parliamentary constituencies. If it were a referendum about how local government is organised, one might see some sense in the stipulations—districts, counties, London boroughs and so forth—that are set out in Clause 7(2). However, those units are irrelevant to the question at issue in this referendum, so my noble friend’s case is self-evidently sensible.

I also join my noble friend in his mild but firm stricture on the intervention of the Electoral Commission. The proper responsibility of Parliament is to ensure that the system put forward in this Bill is well designed. The expedience for the Government of ensuring that the referendum takes place on 5 May must be a secondary consideration. I would have hoped that the Electoral Commission would also want to make it its priority that the system that it is there to oversee and to administer is appropriately designed. I am disappointed that it has not done so in this case.

[Lord McAvoy]

My Lords, I rise briefly to indicate my support for my noble friend Lord Grocott’s amendment. As a former Member of Parliament for a Scottish constituency, I can bring a perspective as to how this will be viewed. As my noble friends have said, this proposed referendum is on a voting system for Westminster. It seems incongruous and, quite frankly, plain daft that the results will not be declared on a constituency basis. These days, when people are looking for more transparency and accountability from MPs, it is absolutely right that, if it is an embarrassment to the MP if the constituency goes a different way from the way he or she campaigned, that should be known. So be it—that is the way it is.

As a unionist, I take exception to the fact that Scottish Parliament seats seem to be given primacy over Westminster seats when it comes to a voting system for the Westminster sovereign UK Parliament. It is wrong in principle and sends out the wrong messages. It will give further incentives and justification for those in nationalist politics in Scotland to continue that drive to say that somehow we in Scotland are different from our friends, neighbours, relatives and colleagues in England, Wales and Northern Ireland. No, we are not. We are all part of a British state. As well as being proud of our individual countries, we are British citizens. There is nothing wrong with that at all.

These proposals are an indication that the Bill has been rushed. Time and again we have come up against things which it would seem common sense to do but which are not done. The fact that these things have not been done is not part of any great malicious master plan, in my view. It is the result of a rush to judgment and to get this Bill through. There is a whole host of things in this Bill that should have been more carefully thought out. There are plenty of experienced people on the other side who I am sure, if they had had their time, would have framed the Bill more accurately and thoroughly.

I totally accept that people have different opinions in Scotland but for my part and, I am quite convinced, for the majority in the constituency of Rutherglen and Hamilton West the Westminster Parliament is—I say this without any disrespect to the Scottish Parliament—the prime Parliament. I can imagine hearing the howls of anguish—“Trust the perfidious English!”—if the Westminster Parliament organised a referendum for the voting system for the Scottish Parliament that did not give due respect to the Scottish Parliament, the forum for which it was proposing a change in the voting system. What is good for the goose et cetera.

The noble Lord, Lord McNally, has paid tribute to my noble and learned friend Lord Falconer for lowering the temperature a wee bit. It is certainly not in my nature to up the temperature. It might be stretching credibility to say that I feel intimidated but I certainly feel on occasion a bit reluctant to come forward to speak. Time and again I hear not only the accusations from the Front Bench on the other side but also the sneers and ridicule from other parts of the Chamber when somebody rises to make a point. This is the third time that I have spoken this evening. The other two times I spoke for two or three minutes. That is hardly filibustering, dragging things out or not co-operating. It is making sure that the Bill is scrutinised and that we can come forward and point to things that we believe are wrong. There are differences of opinion—a whole host of them. There is no concerted effort from this side of the House as far as I can see. I am certainly not part of it.

I will not repeat my noble friend Lord Grocott’s quotation from the Electoral Commission. However, it quite took my breath away that the Electoral Commission—a so-called independent organisation—in effect tells Members of this House not to put forward or vote for any change because that would prevent the Government from having the referendum on 5 May. It is breathtaking and quite disgraceful. I hope that we do not get any more of that sort of comment or, quite frankly, blackmail from the Electoral Commission. I support my noble friend.

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[Lord McNally]

I will write to the noble Lord on that. It seems that one element of confusion is that we are not asking United Kingdom constituencies to make a decision—we are asking for a national vote. It will be a yes or no poll, designed on a national basis.

[Lord Howarth of Newport]

My Lords, I understand the argument about administrative convenience and, of course, that argument is not negligible. However, does the Minister not think it is important that people should know how the votes have been cast, parliamentary constituency by parliamentary constituency, on what the future electoral system for those constituencies should be? Surely that is a matter of some importance to not only Members of Parliament but members of political parties, the generality of citizens and those who seek to evaluate and learn the lessons from this campaign. This is an important consideration which should not be set aside simply on grounds of administrative convenience on the day.

[Lord McNally]

I stand by the case for administrative convenience, but the fact that there will be a national vote, not individual constituency decisions, is the important issue. In fact, I had forgotten, until the noble Lord, Lord Rooker, helpfully reminded me, that the referendum in 1975 was not declared on a constituency basis, partly because the whole point of a referendum on an issue such as this is to get a national decision. These provisions are designed to make the voting process easier and more straightforward.

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[Lord McNally]

I suspect that, again, the decision is based on administrative convenience, which is not a dishonourable reason. What we are trying to do, as I have said so many times before, is to make the procedure as straightforward as possible. I believe there was an amendment in the other place. Perhaps, when this Bill goes back to the other place, Mr Chris Bryant will put down an amendment for a constituency base.

[Lord Howarth of Newport]

Is the noble Lord really saying that it does not matter whether Members of Parliament hear the voices of their constituents, and whether Members of Parliament know what judgment their constituents have come to on this matter of what the parliamentary voting system should be?

[Lord McNally]

The noble Lord is a master at pious interventions. Members will campaign, make their voices heard and assess their constituencies. I give way to my noble friend.