Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011

Lord Maclennan of Rogart Excerpts

Tuesday 12th July 2011 Grand Committee

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

My Lords, I beg to move that the Committee considers the draft Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011. I shall also speak to the Adoption and Children (Scotland) Act 2007 (Consequential Provisions) (Amendment) Order 2011. The former order was laid before the House on 9 June and the latter on 10 June. I will provide an explanation of both orders.

The orders are made under Section 104 of the Scotland Act 1998, which provides that the Secretary of State can make such provision as is “necessary or expedient” in consequence of an Act of the Scottish Parliament. The Merits Committee has reviewed these orders and has not noted them as being of special interest.

I begin with the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011. This order is made in consequence of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which for convenience I shall refer to as the 2010 Act.

The 2010 Act reformed Scots law in respect of persons being questioned by police constables in Scotland on suspicion of having committed an offence. In particular, the 2010 Act enshrined a right to legal advice for suspects prior to and during questioning by a Scottish police constable. It made provision for an order-making power in respect of legal advice and assistance for suspects wishing to exercise this right, and extended the period for which persons could be detained by a police constable in Scotland. The 2010 Act was enacted by the Scottish Parliament in response to the ruling of the Supreme Court in the case of Cadder v Her Majesty’s Advocate, with a view to ensuring that the law of Scotland is compatible with the European Convention on Human Rights.

The policy objectives of this order are two-fold. First, this order brings Scots law, in respect of persons questioned by Her Majesty’s Revenue and Customs and the UK Border Agency on suspicion of having committed a revenue and customs offence in Scotland, into line with the law applying to criminal investigations carried out by police constables in Scotland following enactment of the 2010 Act. The order seeks to deliver this policy objective by, first, enshrining in the Criminal Law (Consolidation) (Scotland) Act 1995 the right to legal advice for persons questioned by HMRC and UKBA on suspicion of having committed a revenue and customs offence in Scotland, and, secondly, by extending the period of time for which a person can be detained by HMRC and UKBA officers under the Criminal Law (Consolidation) (Scotland) Act 1995 from six hours to a 12-hour period of detention, with the potential to extend to 24 hours in certain circumstances with the appropriate authority.

As regards expanding Scottish Ministers’ power under the Legal Aid (Scotland) Act 1986 to make regulations disapplying the financial eligibility criteria for advice and assistance to HMRC and UKBA suspects, this provision will be underpinned by a ministerial agreement and administrative arrangement that the provision of legal aid for HMRC and UKBA suspects in Scotland will be on equivalent terms to the provisions made for legal aid in relation to persons detained by police constables in Scotland. It extends the right to access advice and assistance, without means testing, to HMRC and UKBA suspects by amending the Advice and Assistance and Civil Legal Aid (Financial Conditions and Contributions) (Scotland) Regulations 2011; and by including HMRC and UKBA suspects in the duty which has been placed upon the Scottish Legal Aid Board by the Duty Solicitors Regulations 2011 to ensure the availability of advice.

The second policy objective of this order is to update the law in cross-border cases to bring parity between the powers of the Scottish police, HMRC and UKBA acting within Scotland and the powers of the Scottish police, HMRC and UKBA exercising cross-border powers of arrest and detention elsewhere in the United Kingdom. The 2010 Act amended the powers of Scottish constables only when detaining or arresting suspects in Scotland. The period for which Scottish constables, Her Majesty’s Revenue and Customs and UKBA can detain suspects in cross-border cases is now markedly out of step with the detention period permitted in Scotland following the coming into force of the 2010 Act.

Cross-border detention provisions in the Criminal Justice and Public Order Act 1994 and the Finance Act 2007—which applies, with modifications, the cross-border provisions in the 1994 Act to HMRC and UKBA cross-border cases—allow for the detention of suspects for only four hours where a suspect's detention commences in England or Wales; and for six hours where detention commences in Northern Ireland. This applies regardless of whether the suspect is taken for interview to a police station in England, Wales or Northern Ireland, or is taken back to a police station in Scotland. Cross-border detentions usually arise in relation to the most serious types of cases and the current detention period raises significant challenges due to the need to allow access to a solicitor before and during questioning, which has a negative impact on the time available to conduct effective investigations.

The 2010 Act ensures that suspects are able to obtain legal advice before and during questioning by the police in Scotland. This order ensures that the right to legal advice is available to suspects who are being questioned by Scottish constables, HMRC officers conducting revenue and customs investigations and UKBA designated customs officials conducting customs related criminal investigations in a cross-border scenario as well as in Scotland. This order brings the cross-border detention provisions for Scottish constables, HMRC and UKBA customs and revenue officers into line with the provisions in the 2010 Act, thereby ensuring consistency of approach for the detention and arrest of suspects throughout the United Kingdom in investigations carried out by Scottish police forces, HMRC officers and UKBA designated customs officials.

The order also ensures that when a suspect is to be transported to Scotland for questioning, their right to have another person informed of their arrest or detention arises at the point of arrest or detention. This differs from the position where a suspect is detained in Scotland or questioned in England, Wales or Northern Ireland where the right of intimation to another person arises upon arrival at a police station. It is considered more appropriate and proportionate to grant this right at the point of arrest or detention where a suspect is to be transported to Scotland, particularly where such transportation may take a number of hours. The order will specify that the entitlement to have intimation sent to a solicitor and a reasonably named person, as well as their right to have another person informed of their arrest or detention, arises at the point of arrest or detention. This amendment avoids the provision of these entitlements being delayed until arrival at a police station, as is the current position. This amendment is both necessary and expedient as a direct consequence of the amendments to the 2010 Act. It ensures that a suspect is detained in a manner which is compliant with their rights under the European Convention on Human Rights.

The order will extend the period of time for which a person can be detained under cross-border enforcement powers to 12 hours, with the potential to extend to 24 hours in certain circumstances, with the appropriate authority. As at present, detention will begin on arrival at a police station, either in Scotland or in another part of the United Kingdom, and the suspect must be transported to the police station,

“as soon as is reasonably practicable”.

While the 2010 Act ensured that the system of arrest and detention in Scotland is compatible with Article 6, as expressed by the Supreme Court judgment in the case of Cadder v Her Majesty’s Advocate, the Scottish Cabinet Secretary for Justice also announced a review of Scottish criminal law and practice, which is being led by Lord Carloway, a senior High Court judge. He is expected to report later this year.

In the context of Lord Carloway’s review into this matter, the United Kingdom Government consider that it is sensible to do all that they can until Lord Carloway reports and his findings can be acted on, and to ensure that reserved bodies carrying out reserved functions in Scotland can continue to do so effectively and in compliance with the Supreme Court judgment in Cadder.

Once the Carloway Review Reference Group reports its findings, it is likely that the provisions of the 2010 Act and this order will need to be reviewed. However, in the interim, this order will amend powers of detention to ensure that HMRC, the UKBA and the Scottish police can continue to effectively carry out their functions to investigate serious crime, both in Scotland and in cross-border cases, in compliance with the Supreme Court’s judgment in Cadder v Her Majesty’s Advocate.

Perhaps I may now set out the details of the second draft order we are considering, which is made in consequence of the Adoption and Children (Scotland) Act 2007—the 2007 Act—and regulations made under that Act. The 2007 Act restates and amends the law relating to adoption in Scotland. It also makes further provision in respect of the care of children in Scotland. The process for adoption is updated to allow unmarried and same-sex couples to make an application jointly to adopt a child. The process of assessing prospective adopters and placing children for adoption has also been updated and is now regulated by new regulations made under the 2007 Act.

In addition, the 2007 Act introduces the permanence order to create greater flexibility for children who are looked after away from their home or who require local authority supervision. This new order replaces parental responsibilities orders and freeing orders. Both those orders removed all parental rights and responsibilities from the child’s parents and vested them in the local authority with sole responsibility for the child.

The permanence order now gives the authority the right to determine where the child shall reside allowing authorities to place the child with foster carers, for example. But, at the same time, the courts may vest parental responsibilities and rights in other individuals—for example, foster carers or even the child’s parents. The permanence order will therefore be tailored to meet the needs of each child.

This order therefore makes amendments to legislation for England, Wales and Northern Ireland to ensure that the new orders and procedures introduced by the 2007 Act will be given the appropriate recognition and effect. It does not make any new substantive policy changes: it simply updates existing legislation to take account of the changes in Scottish adoption law. The aim is to preserve the effect of current legislation in England, Wales and Northern Ireland and current cross-border processes. For example, many of the amendments relate to social security legislation which relies on references to Scottish adoption legislation to determine the status of claimants. It is appropriate therefore, that benefits legislation is updated so as to include the status of prospective adopters or adopted children under the new legislation where appropriate.

In order to ensure that existing cross-border arrangements are preserved to allow orders affecting adopted or looked-after children to be recognised and given effect where appropriate, the order proposes amendments to legislation for England, Wales and Northern Ireland in respect of the adoption and care of children. Again, the amendments are purely consequential on the changes made by the 2007 Act and its accompanying regulations. This ensures that, where an adoption application is being heard by an English court and the question of parental consent to adoption has already been determined by the Scottish courts, the English court may be satisfied that this part of the adoption process has already been dealt with. Parallel provision allowing the Scottish courts to recognise a decision of an English court on the issue of parental consent in advance of an adoption application is provided for in the Scottish 2007 Act.

I should also make reference here to the previous Section 104 order which modifies provisions in the Adoption and Children Act 2002 and the Northern Ireland adoption order to allow courts to give effect to Scottish permanence orders pending the textual changes which are made in this draft order. This order now makes the necessary textual amendments, which will allow those orders to have effect where appropriate.

Both these orders demonstrate the Government’s commitment to working with the Scottish Government and the Scottish Parliament to make the current devolution settlement work successfully for Scotland as part of the United Kingdom. I hope that your Lordships will agree that these orders are a sensible use of the powers in the Scotland Act and that the practical results are something to be welcomed. I therefore commend both these orders to the Committee. I beg to move.

[Lord Maclennan of Rogart]

My Lords, I begin by welcoming the clarity of my noble friend's explanation of the two orders. I also thank him for the very helpful Explanatory Memorandum that sets out their purposes and consequences. There are, consequentially, very few questions that I will raise, because most of the points have been very clearly made.

On the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (Consequential Provisions) Order 2011, have the recent United Kingdom changes in the proposed availability of legal aid affected, or will they affect in any way, the availability of legal aid to those who are suspected of serious crimes such as those mentioned in the Explanatory Memorandum? I note that powers to make regulations disapplying the financial eligibility criteria are referred to, as well as the criteria for giving advice and assistance to such suspects. It is also stated that the provision will be underpinned by a ministerial agreement and an administrative arrangement, and that the provision of legal aid to HMRC and UKBA suspects will be on equivalent terms to the provisions made for legal aid in relation to persons detained by police constables in Scotland. Will the Minister explain whether that agreement has been arrived at and is waiting for its effectiveness only on the passage of this order, or whether it has yet to be agreed—and, if so, with whom? The provisions on detention seem to be eminently sensible. It would be of some interest to know whether they are reciprocal. Does this mirror what happens if suspects are taken into custody by police constables in England?

So far as concerns the second order, again there are very few questions that have not been addressed. I would be interested to know what gave rise to the awareness of the desirability of making this change, which will result in orders being made under the 2007 Act to clarify that the 1978 Act does not apply in present circumstances. Whereas in the case of the first order there was a passage merely of weeks before it was laid, in the case of the other there has been a passage of four years. How is that explicable?

I will ask a procedural question. When changes are made by the Scottish Parliament or Government, is it automatically part of the dialogue between the Scotland Office and these institutions to consider any consequential changes that ought to be made by this Parliament under the provisions of the Scotland Act? Did this have to be drawn to someone's attention? Is it the sort of issue that the Scottish Law Commission might consider on a continuing basis or is it such a relatively minor matter—although the consequences are not unimportant—that difficulties became apparent only in seeking to take into account particular cases of adoption that arose after the law was changed? I recognise that this procedural question does not in any way take exception to the outcomes, which seem eminently sensible.

Fixed-term Parliaments Bill

Lord Maclennan of Rogart Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Forsyth of Drumlean]

I stand corrected by my noble friend, who is very expert on these matters. However, a Motion that says, “This House has no confidence in Her Majesty's Government” is absolutely clear, and it would trigger an election. In the context of this Bill, with a fixed-term Parliament, it is going to change. I accept that, because the nature of the Parliament will have changed. But I would much prefer something clear-cut, simple and explicit. If you want to bring down the Government, you have to pass a Motion of no confidence. That is absolutely clear. If such a motion is passed, the Prime Minister has to go to the country.

I was going to sit down, but my noble friend has set me off again. To turn to a point made by the noble Lord, Lord Tyler, the idea that a Prime Minister should somehow be prevented from going to the country to get the consent of the people for what he is trying to do, to call a general election, is also a deeply worrying change to our constitutional pattern. But I sit at the feet of the noble Lord, Lord Norton of Louth, and I am perfectly prepared to alter my view and go along with this amendment, at least in part under his instruction, because it is a far better thing than Clause 2 as it stands.

I hope that my noble and learned friend Lord Wallace of Tankerness will accept the good advice that has been given him tonight and that at a later stage we will be able to discuss something that is more practical and workable and does not threaten the integrity of the office of Speaker of the House of Commons or the ability of the House to hold the Executive to account.

[Lord Maclennan of Rogart]

This debate has demonstrated the need for the Government to reconsider Clause 2. I am very grateful to all my noble friends and all those who have supported the amendment for raising the issue again and in a different context from the previous debates. The intention is to remove the opportunity for Governments to fiddle with arrangements in any way, and that is a desirable purpose. The amendment also seeks to clarify the circumstances in which a vote of no confidence is deemed to justify the holding of an election. However, although noble Lords have raised the debate, I do not think they have concluded it. There are defects in the drafting of Amendment 50 that need to be considered. No one has suggested that this is a perfect drafting, but I would like to suggest two or three points that could be considered when the Government come forward at a later stage.

The first point is that proposed new subsection (2) states:

“A vote of no confidence will have been deemed to have been passed if the House of Commons”,

does certain things, but those things do not appear to be an exclusive list. It would still allow other circumstances to occur that enabled it to be said after the event that there had been a vote of no confidence. The rubric of statutory interpretation that springs to my mind is the Latin tag, “inclusio unius est exclusio alterius”. That might be the answer to this if that were still the law and still the rule of statutory interpretation, but it is not sufficiently clearly the case to avoid the possibility of a further circumstance being deemed to have been a vote of no confidence.

It also seems to me that there has been a slight conflation between a vote of no confidence and the inevitability of a Government’s fall followed by an election. I listened to the noble Lord, Lord Norton of Louth, with great respect, as I always do, but it seems to me that, even if the Wardlaw-Milne Motion of no confidence had been carried—and of course it was not—it would have been perfectly understandable in wartime if that had led to the demise of the particular Prime Minister or a significant change of Government without any election being held. I think the constitution was sufficiently flexible at that time to make it likely that that would have been the outcome. What we are considering here is the circumstances that trigger an election, and I think that needs to be put beyond doubt. I do not believe, even in the case of the European Community Bill in 1972, that despite what the Prime Minister of the day said it would have inevitably resulted in an election. It seems to me that it might have led to the departure of the then Prime Minister. However, he could easily have been told that there were others who would have been prepared to take his place and preside over the parliamentary majority that existed.

If we want an escape clause—and clearly an escape clause is necessary, even with a fixed-term Parliament—in a constitution that is prime ministerial and not presidential, we must have the possibility of having a vote of no confidence. However, I think the better solution to that is the one proposed already by my noble friend Lord Tyler, which is that the Motion of no confidence should come from the leader of the Opposition. If the Government appear to the party in government itself to be in a shambolic condition, it does seem highly probable that a leader of the Opposition would seize the opportunity to declare that the House has no confidence in the Government. I hope that that is the line that will be taken by the Government in reconsidering this clause, but that the case for reconsidering it is strong I have no doubt. Clause 2 as it stands is ill defined and gives no certainty on what the circumstances are within that two-week period which could lead to the holding of a general election. Amendment 50 is a good stab at trying to clarify which issues need to be addressed. The debate tonight will have given my noble and learned friend Lord Wallace of Tankerness a lot to think about and to discuss further with his colleagues, as I believe is definitely necessary.

Fixed-term Parliaments Bill

Lord Maclennan of Rogart Excerpts

Tuesday 15th March 2011 Lords Chamber

[Lord Maclennan of Rogart]

My Lords—

[Lord Grocott]

I thought that I might provoke someone.

[Lord Maclennan of Rogart]

Does the noble Lord believe in the opposite proposition—that to give power to the electorate you should not have a referendum? That might affect some of his earlier arguments about reform of this House.

[Lord Grocott]

I do not know which of the various constitutional proposals increases the power of the electorate. The noble Lord referred to reform of this House. One of the key reasons why I am opposed to this being an elected House is that it would seriously diminish the significance of a general election to the House of Commons. I hope that my argument is consistent; I will have to read it in Hansard tomorrow.

I hope that I can put this with some conviction but, according to my maths, since the 1945 election there have been 17 general elections in this country. If this Bill had been an Act, we would have had 13 general elections. I simply put this proposition: does that or does that not weaken the power of the electorate? There can be only one answer to that. The answer is yes.

I do not want to go to absurd lengths but we can all assume that, if there were no elections, that would seriously weaken the power of the electorate. I am not sure about the other end of that continuum—perhaps the Chartists with their annual elections. But there is no doubt that the convinced and settled view of the members of the Government who are voting on this Bill is that since the Second World War the British electorate have had too many general elections. Which ones should we not have had that we did have? Was it wrong in 1951 for a Labour Government who were tired to seek another mandate? Was it wrong of Mr Heath? Was it wrong of Harold Wilson, who had a majority of three in 1964, to call another election, or should he have soldiered on for another five years? Should Harold Wilson's Government in 1974 have gone on without a majority?

I would like to know the answer to a fairly simple question: why do the Government think that we have had too many general elections since the Second World War? Which ones were superfluous? There could be an interesting answer to that.

Fixed-term Parliaments Bill

Lord Maclennan of Rogart Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord Maclennan of Rogart]

My Lords, I, too, express great appreciation of the maiden speech of our new colleague, the noble Lord, Lord Cormack. I had the privilege of serving with him in another place for 30 years and came greatly to admire his understanding and perception of how our constitution worked. As others have said, today was the ideal opportunity for him to make his debut in this House. He will continue to be listened to with great interest and even affection.

I am, however, surprised by the tenor of the speeches that have come from the opposition Benches today, bearing in mind the Opposition’s commitment to a fixed-term Parliament in their recent election manifesto. It was also strange to hear the noble Lord, Lord Anderson, say that he saw partisanship in this Bill. I would have liked to hear that spelt out a little more clearly so that the criticism might have been answered. The noble Lord spoke for 13 minutes but did not make that case.

I was also surprised to hear the noble and learned Lord, Lord Falconer, from the Front Bench describe the Bill as a disaster, when he also—at least, by implication—seems to be committed to the notion of a fixed-term Parliament. We must therefore focus on the problems that give rise to such extreme criticism from those who are apparently supportive of the principle. However, I am bound to say that there was a difference between the noble and learned Lord, Lord Falconer, and his colleague, the noble Lord, Lord Grocott, who plainly does not like any kind of constitutional reform and sets his face entirely against any change in our system of government, which suggests a sentimentality that I find rather strange, given that the Government in which he served presided over such significant changes.

It seems that the Bill has not been scrutinised with the necessary time that would ideally be given to an important piece of constitutional legislation. However, those committees of both Houses that have deliberated upon it have found much to commend and much to criticise. Surely, during our debates in this House we can take account of the suggestions that have been made without throwing out the baby with the bath water. As to the main question which seems to have given rise to difficulty, about whether a fixed-term Parliament should be for four or five years, it is a genuinely difficult matter to decide. Having served in nine Parliaments in another place, I have had experience of short and long Parliaments and I am bound to say that short Parliaments seemed to me for the most part to constitute interregnums during which no significant steps could be taken, the country was in a turmoil of uncertainty, business did not know the background against which it had to make its decisions and private citizens could not make up their minds about what their future best interests would be. It seems to me that fixed-term Parliaments provide the stability that is utterly desirable. It is not an accident that most democracies have them.

On balance, I come down in favour of a five-year term, although I listened with great interest to the arguments of the noble Lord, Lord Hennessy. I believe that the last year of any Parliament is apt to be unsettled. However, if the last year of a four-year Parliament is unsettled, there is a very limited amount of time in which Governments can put their best thinking to work. In my judgment, in 1,000 days they do not have the opportunity to fine-tune, take account of opinion outside, listen and shape their decisions with the deliberation and consideration that they ought to give to that.

It is also clearly right that there should be ways of recognising the need for early elections in the event of political crises. These happen in the best organised countries. The change from the 55 per cent cut-off to the two-thirds requirement for parliamentary voting for dissolution was a sensible step. I have not heard much criticism of that that seems to me to have stuck. As for the passing of the vote of no confidence in two weeks followed by the automatic dissolution if a vote of confidence in a new Parliament is not put in its place, we can deal with some of those issues at later stages of the Bill. I suggest that the case is very strong for defining the terms of the vote of no confidence that would bring about the dissolution. Looking back through the motions of no confidence over the past 100 years, I see that only four led to the downfall of a Government but there were many other cases when the language was such that it might have been construed by the Speaker as having been the equivalent of a vote of no confidence. I also think that the Speaker’s position would be extremely uncomfortable if he had the power to exercise discretion in these matters. I do not think that that would work effectively, notwithstanding the precedents that we have had. The Bill has to be a great deal more precise about what is required to enable a dissolution to occur.

The noble and learned Lord, Lord Falconer, referred to possible manipulation by the Prime Minister of the day as being a serious danger. He has a real point there. We have to consider how to avoid the possibility that a resignation by a Government to force a dissolution would be made impossible. Two weeks may not be long enough to sort out that problem and it may well be difficult to construct another Government in that period. I hope that we shall come back to that issue later.

I take a less fatal view of the possibility of clashes with the other election date in May. It appears to me that in the United States at least the electors are capable of voting on many things on the same day—on individual appointments, elections at different tiers, the election of judges—and I have not noticed that that does not work very well. In the devolved Scottish Parliament and the National Assembly for Wales it is feared that electors might be distracted by focusing on national, United Kingdom issues. Those thoughts have to be listened to very carefully. However, as my noble friend Lord Rennard said, it would be possible to adjust that slightly. Again, that is not a reason for opposing the Bill and it seems to me that it is a matter to which we can return in Committee.

I very much welcome the general principle of the Bill. It is a forward looking step. It intends to—and, I believe, does—transfer to Parliament from the Executive the responsibility for elections and when they should occur. I very much welcome that. There have been too many opportunistic, manipulative moves by Prime Ministers for party advantage. The Bill enables us to depart from that.

Parliamentary Voting System and Constituencies Bill

Lord Maclennan of Rogart Excerpts

Wednesday 12th January 2011 Lords Chamber

[Lord Howarth of Newport]

I add two considerations to the important ones already put forward by my noble friends and the noble Lord, Lord Martin of Springburn. One is that it is not a question of what is fair to people serving as MPs: we ought also to consider that the House of Commons itself needs continuity. It needs experience. It needs committee officers who have experience of that particular committee work. It needs its subject experts who the House learns to respect and listen to on particular matters. It needs those who are knowledgeable about procedure and people in the Whips Office who keep the show on the road. All those contributions that different individual Members of Parliament make need experience. Ministers need experience. Some Ministers will demonstrate within a short timescale that perhaps they should return to the Back Benches. Others, who will be good Ministers, need time to develop. For all those reasons, it is profoundly important that, as the amendment of my noble friend Lord Lipsey, proposes, we do not destabilise the pattern of parliamentary representation more often than is genuinely necessary to ensure that the boundaries are adequately up to date.

I will touch briefly on the other consideration that I would like to put forward because I said something about it in one of our debates on Monday and I do not want to repeat myself. Equally, it is important that local political parties should not be destabilised and upset more often than is necessary. All political parties have difficulty in attracting membership and are too prone to dissipate time and energy in the tussle for office and position within the party. They need to be able to settle to their work and do the job that they do within their communities, which is absolutely fundamental to the operation of our democracy. We should not destabilise that process gratuitously.

[Lord Maclennan of Rogart]

My Lords, I am interested in the arguments that the noble Lord, Lord Lipsey, put forward in support of his amendment. But there has been an unspoken premise throughout this short debate that the Boundary Commission will inevitably shake the kaleidoscope and the picture that emerges from it will be quite different from before. That will not necessarily be the case. Certainly, as a consequence of the reduction in the number of parliamentary seats that is proposed in the Bill, on the first occasion there will be a considerable change in the shape of constituencies. But once that position has become settled—and I do not imagine that even the most ardent constitutional reformer would anticipate that altering the size of the House of Commons would become a matter of custom—the stability of the total numbers is highly predictable.

[Lord Lipsey]

I am most grateful to the noble Lord, whom I hugely respect on constitutional matters, for giving way. The reason that there will be permanent upheaval is the 5 per cent limit. The reduction of MPs is indeed a one-off effect, but as soon as you go one voter over the 5 per cent, that constituency has to change, which has a knock-on effect on the next constituency, which has a knock-on effect on the next and the next. I know that the noble Lord is an avid reader on the subject and I recommend the work of Democratic Audit, which would explain to him very clearly that what I say may be desirable or undesirable, but it is the factual situation that will result from the Government’s Bill.

[Lord Maclennan of Rogart]

I accept that some changes will flow from that. In another place, I went through nine different elections and each time the Boundary Commission reported there were some marginal changes. It is marginal changes that are likely to take effect. These were, in the cases I recall that affected me, changes to enlarge the electorate because I had both the second largest constituency in geography and the second smallest in numbers of electors to begin with. Naturally enough, there was an attempt to increase them.

The thought that the Boundary Commission would be likely to upset the prospects for a sitting Member seems nothing compared to the probability that if we had a fairer electoral system, it would more adequately represent the electors by ensuring that their votes and the numbers of their votes were reflected—

[Lord Campbell-Savours]

The noble Lord cites his own constituency, which I know as well. It had a nuclear plant in Dounreay. Would the noble Lord agree that it is not a representative constituency? It is surrounded by a vast rural area. However much the boundaries of Caithness and Sutherland were changed, it would have had little effect on the result. Most of the votes that the noble Lord gleaned in that constituency were the result of his own efforts.

[Lord Maclennan of Rogart]

Flattery will undoubtedly get the noble Lord far down the track with his arguments. The actuality is that my constituency and those constituencies that lay to the south of me changed with great regularity. There were Conservatives, Liberal Democrats and Labour Members and the shape of the constituency as determined by the Boundary Commission was not an element that caused great uncertainty.

Having gone through nine elections where in no case was the outcome certain, I think that there has been a sympathetic exaggeration of the concerns of potential Members of Parliament about stability and certainty. If you go into politics, you cannot make a presumption that you will be there for all time. Events, dear boy, change things.

[Lord Hughes of Woodside]

I know the noble Lord’s constituency well. However, in my own case in the city of Aberdeen, we had many major changes. We went from two MPs in a purely city constituency, two MPs with a vast rural hinterland, to three MPs and back to two MPs. If you go from three to two, somebody has got to go. I do not argue that people should be there for ever—I have never argued that—but this artificial way of consistently changing boundaries makes it difficult for them to do a proper job. We must take into account that people have a great attachment to their constituency and also, thankfully, to their constituency MP.

[Lord Maclennan of Rogart]

The noble Lord enjoyed a degree of stability which has enabled his voice to be heard consistently for decades in politics. I do not think that he personally can have been seriously troubled by the sitting of the Boundary Commission. His position is more the norm than that of the MPs who are fearful about modest changes at the margins to reflect population or electorate changes.

There seems to be an underlying unwillingness to recognise that significant changes can happen in the course of 10 years and that constituency electorates should be broadly comparable to each other. If Boundary Commissions may make mistakes, why should we wait for another 10 years to put those mistakes right? In reality, concerns will be raised if these issues about local communities are not adequately addressed. Consequently, those changes should be made within five years.

[Lord Davies of Stamford]

On the noble Lord’s point that the Boundary Commissions may make mistakes, does he not agree that the chances that the Boundary Commissions will make mistakes will be much greater if the counterweight of public inquiries and appeals is removed? Would it not alter the equation considerably if the Bill results not only in the Boundary Commissions recommending changes more frequently but in those recommendations being more likely to be—to use his own term—mistaken?

[Lord Maclennan of Rogart]

That issue will be addressed in separate amendments and is a perfectly fair point to make. There may be a case for continuing with public inquiries, but that does not affect the argument about the frequency with which an attempt should be made to have up-to-date boundaries.

However, the case for continuing with public inquiries is not made simply by arguing that, for the peace of mind of those who are thinking about standing for Parliament, MPs should have a security of tenure for up to 10 years. That is artificial, unreal and inappropriate in considering these matters. The purpose of the reform is to satisfy the electors, not the elected.

[Lord Rooker]

Will the noble Lord give way?

[Lord Maclennan of Rogart]

I have finished my speech.

[Lord Grocott]

My Lords, I cannot help but remark that, although the noble Lord, Lord Maclennan of Rogart, and the noble and learned Lord, Lord Wallace of Tankerness—who I assume will sum up the debate— both had long and distinguished careers representing their constituencies in London, their experience of boundary redistribution may not, I respectfully suggest, be very typical. Unless my geography is completely askew, the former constituency of the noble Lord, Lord Maclennan, was surrounded on three sides by sea and the former constituency of the noble and learned Lord, Lord Wallace, was surrounded on all sides by sea. To me, that suggests a security of tenure that I would have envied.

[Lord Maclennan of Rogart]

I thank the noble Lord for giving way. The reality is that the Boundary Commission added 25 per cent to the number of my electors. That did not give a sense of security.

[Lord Grocott]

Whatever the circumstances, being a Member of Parliament is not the most secure of roles.

I want to make two points. First, I have added my name to Amendment 58, in the name of my noble friend Lord Martin of Springburn, which would provide for Boundary Commission reviews every eight years. Certainly in my case, that number was not just plucked from thin air. The current law provides that the period between each redistribution should be between eight and 12 years. There needs to be some compromise—there is no tablet of stone that tells us how frequently redistributions should take place—but a requirement that redistributions should take place every eight years would have some historic precedent. I hope that our recommendation of eight years would go some way towards meeting the Government’s requirement to provide, on a continuing basis, for a rough equalisation of constituency sizes—a principle to which in general terms I certainly do not object. Requiring the review to take place every eight years would at least give Members of Parliament probably two terms in which they would represent the same area.

Secondly, I simply want to point out the sheer practicalities of the situation that my noble friend Lord Lipsey has described as a kind of permanent revolution. Members of Parliament would not be human—we have all seen this happen—if, having discovered halfway through a Parliament that they will lose a large section of their current constituency and gain another area from another constituency after the election, they did not start concentrating some of their activities and energies on the area that was to be transferred. They would not be human if they no longer attached quite the same level of attention as they had in the past to the bit that they knew would be going somewhere else in 18 months or two years. That is just a matter of sheer common sense and no reflection on the integrity or commitment of the vast majority of MPs. I have always believed that to have been the case.

Parliamentary Voting System and Constituencies Bill

Lord Maclennan of Rogart Excerpts

Monday 10th January 2011 Lords Chamber

[Lord Boateng]

I am grateful to my noble friend for reflecting on that. Many Members on all sides of the Committee, some of whom are sadly silent this afternoon, know that what my noble friend says is true and that we will be weakened by the measures that we are debating and which some seek to push through the House. I ask us to pause and give serious consideration to the proposal in the amendment, as it would at least enable us to say that we have sought consensus and respected the role that the judiciary can, and ought to, play in this area of constitutional reform. A number of us have visited countries in the immediate aftermath of hotly contested and inconclusive elections, just as our election was hotly contested and inconclusive. We have said to them, “The last thing you as a Government should be doing now is pushing through a measure which could be perceived as enshrining your own power for longer than the electorate have given you a right to expect”. Noble Lords on all sides of this House have given that message to others; it is a lesson that we ought to take on board ourselves.

[Lord Maclennan of Rogart]

My Lords, I have no mandate to speak on this matter for the coalition but I have listened to the debate for two and a half hours and I have heard assertions being made which certainly ought to be rebutted, not necessarily by the Minister but by those who have taken a strong interest in constitutional reform in this House and in another place. I have served in Westminster for 44 years and I am bound to say that the view that constitutional reform should be based on consensus is so unhistorical that I cannot recognise it as having even a scintilla of truth. The noble Lord, Lord Boateng, suggested that we should react to the recommendations of the Speaker’s Conference. I served on the Speaker’s Conference when it considered the voting age of members of the public. If that is not a fundamental question, I do not know what is. The Speaker’s Conference recommended that people should have the vote at 20. The Labour Government of the time did not consider that that was right. The late Lord Gardiner, for whom I had the greatest respect, summoned me to his chambers to ask why the Labour Party’s policy on having the vote at 18 had not been reflected in the Speaker’s Conference recommendations. Did that Government respect the recommendation of the Speaker’s Conference? No, they did not. They went ahead with the vote at 18.

Time and again we have had references to the 1832 Act. What sort of a royal commission was called before that 1832 Act was passed by Parliament? What kind of consensus was there in the country? There was nothing. There was political leadership from Earl Grey, who had strongly advocated these matters for some time.

[Lord Wills]

I have great respect for, and pay tribute to, the noble Lord’s very distinguished history as a constitutional reformer and he was right to remind the Committee of that. I know that it was a long time ago and he may have forgotten exactly what I said in my opening remarks but I do not think that he was listening quite as carefully as he should to those remarks which informed the rest of this debate. I specifically mentioned practice over the past 100 years or so. I am not talking about the 19th century but of relatively modern times. I am not talking about the broad constitutional issues about which there will always be debate. My noble friends Lord Grocott and Lord Snape talked about the broad constitutional issues of the alternative vote system and I fundamentally disagree with them on that. I am talking about achieving consensus on a process that is, as far as is possible, independent and fair minded. Does the noble Lord not recognise that?

[Lord Maclennan of Rogart]

What I do recognise is that in my lifetime the entitlement to vote has changed considerably. There was, for example, a multiple vote. My father cast two votes for parliamentary elections in different constituencies and that was perfectly legal. I am conscious that that change in the law did not come about as a result of a high-powered discussion led by a judge. We know the opinion of judges. We have heard from former judges in this debate. The noble Lord, Lord Elystan-Morgan, gave us his view. What is there to suggest that a judge sitting on a committee comprising partisan people drawn from both Chambers will come up with any different view from that of the elected House of Commons, backed or not backed by this Chamber? It is a chimerical view that we could have a consensus on this set of propositions. It is a method of delaying decision, and constitutional reform requires decision.

[Lord Foulkes of Cumnock]

Does my noble friend—I still think of the noble Lord as my noble friend—not agree that the Scottish Constitutional Convention, of which he was part, provided us with an excellent model whereby we had a White Paper, then an all-party discussion and discussion with people from the community—indeed, I think there were some lawyers on it as well—and that that is exactly the right kind of model that we should be encouraging in this instance?

[Lord Maclennan of Rogart]

I, alas, disagree with the noble Lord on that. As he said, I served on the Scottish Constitutional Convention but I am bound to say that it was a device to fill a gap in time when it was not possible to extract from Parliament the decisions that reformers such as the noble Lord were in favour of. It was a method of trying to cover up political delay. I am sorry but I do not think that it was ideal. I think it was he who suggested that all parties had participated. That is not the case. The Conservative Party did not participate.

I also sat on another convention which was attempting to draw up a constitution for Europe and, again, was filled with representatives of national Parliaments from all around Europe. I am bound to say that it came to nothing. What has come to something has been the treaty of Lisbon, which came about as a result of executive government in a number of different countries plucking from that convention the best that they could to give us a framework for our European constitution.

I am sorry, but I profoundly disagree with the thread of argument that has been built upon the amendment that we heard eloquently defended and advocated at the beginning of this debate. We have seen this process of setting up commissions. We had a commission—a royal commission—set up on the reform of this place, sitting under the noble Lord, Lord Wakeham. How many of its recommendations, consensual as they were, have been implemented here? Virtually nothing has happened.

The most notable reforms of the Government which preceded the present one did not all come about as a result of commissions of inquiry or looking for consensus. One of the most remarkable reforms was that which resulted in the appointment of the noble and learned Lord, Lord Falconer, to the Cabinet and concerned taking out of this Chamber active judges—active Members of the House of Lords, sitting in its judicial capacity—and the creation of a Supreme Court. That was done by the decision of the Prime Minister, backed by some influential members of his Cabinet. It was certainly not accepted generally or widely. There was no consensus about it. It was torn apart in this House and was considered for months in a committee of this House, but it was certainly not produced as a result of seeking consensus. After the event, it seems to have been a very wise move, which was backed by the then great Lord Bingham, who was the senior Law Lord.

[Lord Sewel]

I wonder whether the noble Lord will now try and square the argument he is putting forward with the argument for participatory democracy that his party advocates?

[Lord Maclennan of Rogart]

Yes, I will. We have a very imperfect system of participatory democracy, because we have a rotten electoral system. The first past the post system does not reflect in Parliament anything like the aspirational end of participatory democracy, and although I do not regard the alternative vote as the ideal system—again I speak for myself and not the coalition—it is none the less a step towards a better representation and a more participative end point in our constitution. It will, I believe, make people feel in their constituencies generally that their vote does count.

[Lord Sewel]

In that case, is the noble Lord saying that the individual citizen is limited to being just the individual elector and not an active citizen in the legislative process?

[Lord Maclennan of Rogart]

There are many ways in which one can be an active citizen, and I enumerated some of them when introducing a debate on that very subject in this House shortly before Christmas.

I do not wish to detain the House, and I am conscious that the hour is late and that many will wish to reach a decision on this. However, I want to say that I am distressed by the fact that so many noble Lords for whom I have a high regard should imply that this deliberative process would bring about a better end point than the deliberations of our Parliament, which the noble Lord, Lord Boateng, referred to as the mother of Parliaments. It is so highly regarded largely because it is thought to act, usually, in a deliberate and wise way. On this occasion, the silence on these Benches indicates consent to what the Bill is putting forward, and an awareness that those opposing it are seeking to stop it from making progress and to stymie the efforts to achieve the constitutional reform that is long overdue.

[Lord Gilbert]

My Lords, in the 27 years that I was in another place I represented all that time the good people of Dudley. The extraordinary thing is that I represented no fewer than three distinct and different constituencies, and was chosen to stand as a candidate for a fourth constituency, within the boundaries of Dudley. That was not so much an inconvenience to me, but an infuriating irritant to the good people of Dudley.

I have also seen the consequences—as, no doubt, many other noble Lords have—of constituencies that cross local authority boundaries. That is not only an inconvenience to the Member of Parliament but an enormous inconvenience to elected councillors and paid officials of the different local authorities. It is beyond an irritant; it drives ordinary citizens berserk because they do not know who to go to. It is not a question of parliamentary convenience.

Long ago I came to the view that this manic idea that we have to have precise mathematical equivalence in constituency numbers is a hobgoblin of very small minds indeed. We should be big enough to accept certain anomalies in our constitutional system without recoiling with shrieks of “unfair, unfair”. There is no such thing as a fair system, because what is unfair to the noble Lord, Lord Maclennan, whose speech I largely agreed with, is fair to me; and vice versa. There is no such thing as an ideal fair system which is just to be grasped and which ordinary reasonable people would sit down and agree with. Ça n’existe pas, it never will, and we should accept anomalies.

Earlier in this debate, one noble Lord talked about his difficulties in visiting a part of his constituency which was an island. When I first represented Dudley, it was an island.

Parliamentary Voting System and Constituencies Bill

Lord Maclennan of Rogart Excerpts

Monday 13th December 2010 Lords Chamber

[Lord Foulkes of Cumnock]

I had expected that some other Members might have spoken against clause stand part, which is why I was not immediately ready. On page 2, line 39, it is stated:

“The polls for the referendum and the Scottish parliamentary general election in 2011 are to be taken together”.

I am proposing that the subsection be deleted. I say to the noble Lord, Lord McNally, that this is his solution, because we have just been discussing the confusion that will take place in a Scottish parliamentary election. I have spoken on this matter, but there are a number of areas of confusion; I will not go on at length about them, but will make a brief reprise of what I said previously. Two areas of confusion are likely to arise. The first is confusion in campaigning and the other, which relates to one of the solutions that I have just put forward—extending the franchise to European citizens—is confusion at polling.

On the confusion in campaigning, I do not think that the Liberal Democrat Members in particular understood the import of what was said in the previous debate. As to running a cross-party campaign, I know that the noble Lord, Lord Rennard, and others, in particular the noble Lord, Lord Maclennan, have been involved. He and I were hand in hand together on the campaign for Britain to remain a member of the European Union—he was in the Labour Party then. However, we worked together with Conservatives such as Malcolm Rifkind, members of the SNP, and other parties—particularly the Liberals. I remember campaigning for our membership on an all-party and cross-party basis. We were able to do that without any problems or difficulties, because there was no election taking place on the same day. We appeared on the same platform. John P Mackintosh was on the same platform as Malcolm Rifkind. That did not create any problems, because people understood that all that was being discussed was whether Britain should remain part of the European Union. They did not say, “It’s strange having a Tory and a Labour person on the same platform”, because they were not standing against each other in an election on the same day.

Imagine what will happen on 5 May next year if we have the elections for the Scottish Parliament and the referendum on the same day. As I have said on previous occasions, imagine campaigning with people of other parties. I chose the example of David McLetchie—a friend of mine who is a Conservative Member of the Scottish Parliament. Imagine if I said that I agreed with him that we should have first past the post and should not move to this awful system of alternative votes, but while we were going around Wester Hailes, in the Edinburgh Pentlands, people asked, “Are you supporting David McLetchie to be re-elected as the MSP?”. Of course the answer is, “No, I am campaigning for Ricky Henderson, the Labour candidate”. They would then say, “But why are you here with McLetchie?”. If I said, “Because we are campaigning in the referendum”, they would say, “But there is an election taking place”. That is how confusion arises.

As to expenditure, when you are campaigning, how can you easily differentiate between expenditure on the election and on the referendum? For example, I may use a loudspeaker system in campaigning for the Labour Party and then borrow it for a day to use in the no campaign for the referendum. How do you allocate the finances? In a later amendment there is a reference to party election broadcasts. At the moment it would be possible for the Liberal Democrats to have a party election broadcast not to say, “Vote Liberal Democrat in the election” but, “Vote yes in the referendum”. Unless we change it later, that is quite possible. Most Members here have taken part in an election of one kind or another, or one kind of cross-party referendum campaign or another, and know of the problems of having the two on the same day. So there will be confusion in campaigning.

I turn now to confusion within the polling booth. As I said, I tried to provide the noble Lord, Lord McNally, with a lifebelt to resolve this problem by bringing together the franchises and trying to introduce a single register, which would have made things easier. However, he chose not to take advantage of that lifebelt. Instead, he agreed with the noble and learned Lord, Lord Falconer, who summed up the debate on European citizens voting. The noble and learned Lord said specifically in his reply that he disagreed with the solution in my amendment about allowing European citizens to vote and thought that there was an easier and better way of doing it—and that was not to have the referendum on the same day as the local elections.

That is now quite possible because of the amendment of the noble Lord, Lord Rooker, which was passed by the House. It allows the Government to hold the referendum on any day between 5 May and 31 October and gives them the necessary flexibility. I shall not give away a confidence by saying who it was, but a Liberal Democrat Peer said to me, “George, I see the strength of your argument now as far as the Liberal Democrats are concerned”. In fact, he agreed that it would be better for the Liberal Democrats not to have the referendum on the same day as the elections because he believed that they would not get the same degree of support for AV. I could see his argument. When the elections in Scotland and Wales and the local government elections in England are taking place, the Labour Party and the Conservative Party will be pushing to get out their electorate to vote in the elections. They will turn out primarily for the elections and be predominantly in favour of first past the post. Therefore the AV support is likely to be at a minimum and the first past the post support at a maximum. However, if the referendum is held on a separate day it will be the real activists, the ones who want change, who will come out and vote for AV. The first past the post people will sit at home and think, “It will never change anyway” and wake up the next day to find that the activists in favour of AV have turned out. Without a threshold, there could be just a small 10 per cent turnout and the constitution would be changed.

[Lord Maclennan of Rogart]

It rather sounds as if the noble Lord is making a speech of no confidence in his own party leader. Surely that will remove all problems of dubiety about who is for and who is against, because he will get lots of publicity. Mr Ed Miliband has made it clear that he supports AV, which will surely overcome quite a lot of the problems put forward by the noble Lord.

[Lord Foulkes of Cumnock]

Of course, the support of Ed Miliband—and I have a great respect for him—will help the AV campaign. However, I do not think that it will help it as much as the wide range of support for the first-past-the-post campaign in the Labour Party, which has a whole galaxy of supporters. That still does not argue the case about the differential in the turnout. The Liberal Democrat that I mentioned was arguing from his point of view the fact that it would be for Liberal Democrats to have the referendum on its own so that they could concentrate on the change that was necessary and get the enthusiasts and activists to turn out.

I urge noble Lords to support the deletion of this clause. It is the first in a group of amendments that would have a similar effect in different areas and in different ways. The amendment would eliminate the probability, or certainty, of confusion of the electorate in the campaign and at the polling booths. If we do that, we will have produced a far better Bill than we received from the other place.

--- Later in debate ---

[Lord Browne of Ladyton]

My Lords, despite the lateness of the hour, I rise with some enthusiasm to support the amendment moved by my noble friend Lord Foulkes of Cumnock. I thought that he made a powerful case for why it is a mistake to have this referendum poll on the same date as the Scottish parliamentary elections. In doing so, he did not draw on nearly all the arguments that exist, as has been apparent from other contributions.

I am struck by the contribution of my noble friend Lord Campbell-Savours allied to the contribution of the noble Lord, Lord Hamilton. From the different perspectives of reform, I thought that they made complementary cases on why the Government should be persuaded to take more time over this process and to get it right. If we are to get a decision about the way in which we elect the House of Commons for a generation or more—or, indeed, for ever—it does not seem unreasonable to ask for time to think about the full implications of the decision that we are making and to test that even by discussion among parties or, as the noble Lord, Lord Campbell-Savours, suggests, among those who broadly favour reform. Furthermore, I thought that the analysis of my noble friend Lord Lipsey of the effect of the coalition’s proposal was deadly accurate.

I have been listening to debates in Committee on this issue and have been struck by the number of contributions supporting contemporaneous polls from people who, I have the sense, have not done much campaigning to encourage activists and electors to engage in polling. They may well have organised campaigns from the centre, but not out there in the streets as I have done time and again. It is challenging to try to encourage activists to go out with you often in quite inclement weather in Scotland, even at that time of the year, to knock on hundreds of doors, to spend hours and hours on doorsteps engaging with people and persuading them that they should come out during a particular window of opportunity. To ask people to do that and, at the same time, to support a campaign that involves them working with those whom they are campaigning against will be almost impossible. I know from the activists whom I have tried to engage and have worked with successfully on numerous occasions that that is a difficult thing to do. This should not be complicated any more than it needs to be.

I have already contributed to this debate and I do not propose to rehearse all the arguments that I made when the Committee considered this issue before, but I must say today that I have been reassured that not only did we win that argument—although we were unable to persuade the coalition Government to accept the consequences—but it seems that, subconsciously, we have persuaded more members of the coalition than we thought. For example, I heard the noble Lord, Lord Tyler, adopt exactly the argument that he opposed days ago and earlier today in his opposition to 16 and 17 year-olds having the vote. If he is not consciously aware that he has absorbed the argument, subconsciously his political acumen is telling him that there is something in it, because he repeated the argument.

Earlier, I suggested to the Committee that one reason why we should not have the Scottish Parliament elections and the referendum on the same day is that the London-centric media will dominate the debate and drown out the voices of Scottish politicians as they try to persuade people to engage with the issues that are important to them concerning who forms the Scottish Government for the next four years. I remember that argument being pooh-poohed, but I heard it repeated back to me today by the noble Lord, Lord Maclennan, as a justification for why we can be sanguine about the effect that having these elections on the same day will have on the 15 or 20 per cent of the vote, concentrated in London, who will not be part of a contemporaneous process. We are told that the London-centric media will be strong enough to counteract the differential turnout. Because I have done it myself, I admire the ability to use an argument that one opposes in a different set of circumstances for a different purpose. I do not admire the ability to use an argument that one opposes on a different occasion in the same set of circumstances. We seem to be persuading people much more than we thought on these Benches, from the results that we are having with the coalition.

However, I want to major on another point, which concerns respect. Having the referendum poll on the same day as elections to the Scottish Parliament shows a distinct lack of respect for the Scottish Parliament. The proposal has created in Scotland a unique coalition of opposition. That coalition of opposition was reflected in the views expressed and the vote cast in the Scottish Parliament itself. The Scottish Parliament, the electoral body that will have an election on the same day, has said to this Parliament, “Do not do this to us. Do not impose this dichotomy on our electorate on the same day and please do not do it against the background of the experience that we had in 2007, when a similar set of circumstances were created”.

I read that the Parliamentary Under-Secretary in the Scotland Office dealt with this argument in the House of Commons by saying that he had no response to that debate or that decision because not one argument was rehearsed in the Scottish Parliament debate that had not been rehearsed in the other place or in this Parliament and that therefore he did not need to take cognisance of it. That is disrespectful in the extreme and we in this place should be above that sort of argument.

I believe that the coalition is required to give Scottish parliamentarians, who have expressed their view in that way, an explanation as to why they are not listening to them. They particularly require to do that because this same coalition Government have just published a Bill that accepts a recommendation of the Calman commission that will give that Parliament the responsibility for organising its elections once that Bill becomes an Act. The Government have said, “In principle, we accept the argument that the Scottish Parliament should be a sovereign body in relation to the conduct of its own elections”. That is now printed in a Bill that they hope to persuade this House and the other place to support. At the same time, they are saying, “We will ride roughshod over your recent exercise—potentially—of that right by imposing on you a coincidence of polls that you say you do not want”. What is the coalition Government’s position?

[Lord Maclennan of Rogart]

I do not see any contradiction between giving the Scottish Parliament sovereignty over its own electoral matters and the right of this Parliament, which is sovereign over United Kingdom matters, to decide how referenda that apply throughout the United Kingdom should be decided. To abdicate that principle is not a matter of disrespect but a recognition of the principle of subsidiarity. That is deeply rooted in our constitutional understanding of devolution and membership of the European Union. We are entitled to take decisions in this Parliament that govern how this Parliament’s membership will be arrived at. We do not defer to Europe on that issue or to any regional or other body in this country on these matters.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for his intervention because he sets the context for the argument that I am making. I am not making a legalistic argument. As he knows, I am well versed in the legal relationship between the devolved Parliament and the United Kingdom Parliament and was close to the process that delivered that settlement for the people of Scotland. I agree entirely with him in a legalistic sense but, if I understand his argument, he is now saying from the Liberal Democrat Benches that the Liberal Democrats’ attitude, or at least his attitude, to the Scottish Parliament is: “We have known the date of your election for four years, but we want that date. You can move”. If the implication of the noble Lord’s argument is accepted, that will at a stroke in Scotland undermine the only reason that we have heard articulated in this Chamber for why the coalition Government want to have the referendum on the same day as the Scottish Parliament election.

If I understand the noble Lord, he is saying, “We want to do these two votes on the same day to maximise the turnout, but if you are right”—and we have to accept that they are closer to this than we are—“that this will do a disservice to your election, feel free to move your election. Of course, we have known about the date of that election for four years, but the lack of respect that we have for you is such that you can move over and we will take your date, even if we don’t get your turnout”. That is not the argument that this House, this Parliament or, indeed, the coalition Government should be putting before the people of Scotland. The people of Scotland have spoken through their Parliament and said, “Please do not do this to us. Our electoral system and Parliament are important to us. Do not do this to us”. It seems to me, for all the reasons that have been rehearsed, that they create an argument that is in favour of the objective that the noble Lord wants to achieve. It does not seem to be unreasonable to ask the coalition Government to accede to that request.

--- Later in debate ---

[Lord Falconer of Thoroton]

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

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

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

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

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

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

[Lord Maclennan of Rogart]

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

[Lord Falconer of Thoroton]

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

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

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

Scottish Parliament (Elections etc.) Order 2010

Lord Maclennan of Rogart Excerpts

Thursday 9th December 2010 Lords Chamber

I will not crow over this and I will not seek people’s heads if it comes about, but I say to the coalition that if it gets its way and does to Scotland the disservice to their electoral processes that dominating them by a referendum will do, the people of Scotland will take a long time to forgive the parties which make up that coalition. The Conservative Party already knows what it means for the people of Scotland to take a long time to forgive them, but the Liberal Democrats will learn this very quickly. It is still not too late to think again about combining these two events on the one day.

[Lord Maclennan of Rogart]

My Lords, I again thank my noble friend for his exposition of not only the order, but also the Government’s reaction to the report of the Joint Committee on Statutory Instruments on the defective drafting of the order. It has to be said that this is a long, complex and not consumer-friendly order. It would be my recommendation that a proper guide to practice set out by this consolidating order should be made available to help the many people involved in elections in Scotland to find their way around the rules. Much of the order is drafted by reference to other Acts and other rules, sometimes with cross-references within the order. It cannot be an easy matter for those who have responsibility at a local level—not perhaps legal responsibility, but the responsibility of organising a campaign appropriately—to master the complexities of such things as who may obtain information about the forthcoming election, what are the limitations on the information that is required to be revealed and to whom. I think that a handbook, which needs not have the force of law but which is consistent with the order, would be a practical and helpful step to take.

Within this order, there are a number of useful changes. It is not purely a consolidating order. Although it is helpful to have the rules all contained in one order, it is also sensible to have made some of these changes. In particular, I believe that the extension of the timetables for holding elections and the different elements of the election make sense because it means that there will be less pressure of time on those who have responsibility for orderly conduct of the election. In the light of the experience in 2007, it makes sense to revert to the manual count. We cannot regard what happened then with anything other than dismay.

The order is also helpful in setting out the new limitations on pre-campaign expenditure. I assume it is the Government’s intention that any changes which may be required will take account of the current legislation, which is considering the possibility of a referendum being conducted on the same day, and will be included in the Act. But as the Government have indicated that there will need to be a new draft of this order to reflect their acceptance of the defective drafting, I hope that there will be an opportunity to consider the matter briefly in both Houses and consolidate the change at an appropriate time.

--- Later in debate ---

In relation to the observation of the noble Lord, Lord Maclennan of Rogart, that a guide might be provided in relation to this legislation, I respectfully wonder what it might look like. I share his concerns about the Explanatory Memorandum as possibly providing light. I wonder whether a guide would, in the same way, run the risk of not really providing much more in the way of light. The hope that this is never prayed in aid in construing legislation is a hope that is not always fulfilled.

[Lord Maclennan of Rogart]

I wonder if the noble and learned Lord would accept that a short guide could, in its appendix, refer to the relevant provisions of law, but that the guide itself need not be an expression of the law; it is simply a guide. A lot of lay people who are not lawyers have to understand the basic rules. These are obscure and cannot be easily abstracted from this document.

[Lord Davidson of Glen Clova]

That is certainly an ambition that I would applaud. It is the execution with which I perhaps have a degree of concern. When one has seen what has been done with the Explanatory Memorandum, even a short guide for the increase of understanding by ordinary lay people would help. It is a matter on which we will never know the answer, I suspect.

In conclusion, despite the points that I have made in relation to the matter so far, I welcome the useful changes that have been produced by the order, which should enable a more rational, modernised election process in Scotland.

Scottish Parliament (Constituencies and Regions) Order 2010

Lord Maclennan of Rogart Excerpts

Tuesday 26th October 2010 Lords Chamber

[Lord Maclennan of Rogart]

My Lords, I rather question the premise of the noble Lord, Lord Foulkes, about this process being exemplary and democratic. It seems to me that an arrangement which results in an appointed commission making its final determinations, which this House is simply invited to rubber-stamp or overturn, does not have the subtlety of the democracy that we are more used to in this country. The fact that this House has no power to suggest modifications to the Secretary of State is a limitation. I question whether it is really appropriate that the order should come before this House at all.

I realise, of course, that it is done entirely in conformity with the Scotland Act, but with the benefit of 12 years of that Act being on the statute book, perhaps we might consider that it is time for an amendment. This debate is at risk of turning into a debate about entirely different parliamentary measures over which we have control. I somewhat regret that.

It has to be said that the Explanatory Memorandum to this order displays a degree of tortuousness in interpretation of the Scotland Act that, despite some years of training and practice as a lawyer, I find almost impossible to unravel. The suggestion that the order has to be enacted in the terms in which it does as it,

“would otherwise be unable to give effect to the terms of the Boundary Commission’s report”,

is an argument of political necessity, not of law. The conclusion is that paragraph 6(1) of the Schedule to the Scotland Act,

“must be read so as to allow such textual amendment as any other reading would deprive the Scottish Parliament (Constituencies) Act 2004 … of any meaning”.

It may be that those Acts have not been well drafted and that we should be reconsidering their language. It seems that the order allows a very broad discretion that is perhaps hardly consistent with the legislative activity in which we are engaged.

There are other examples. One referred to by my noble and learned friend when he introduced the order is the procedure for dealing with by-elections under this order and the date when the order takes effect. We are advised that the administrators have said that that is a “localised risk” that could be “managed” should the need occur. That is hardly legislating with clarity. It seems to be providing a discretion that is inappropriate and questionably democratic. I doubt whether this is a model of how to proceed in amending the boundaries of Scottish constituencies. The next time we are looking at amendments to the Scotland Act, I strongly recommend that we consider whether this also ought to be brought within the purview of that amendment.

In passing, because no one has the power to alter these proposed boundaries, I have to say that although the order may respect local authority boundaries, it does not respect existing local authority boundaries in respect of the mainland highland constituencies, in that we have a vast north highlands constituency, which is part of the north highland region. It is considerably too large to be effectively represented by a Member of Parliament. We ought to give some thought to those considerations when we come to consider the Bill that will emerge from another place dealing with Westminster parliamentary constituencies. I profoundly hope that we do not reach a position of such rigid equality of membership that the differences of community and geographical extent are completely set at nothing. That would be entirely to alter the nature of the relationship between a Member of Parliament and his constituency. However, I realise that I am straying into the territory that was entered by the noble Lord, Lord Foulkes, and that is beyond the remit.

[Baroness Liddell of Coatdyke]

My Lords, perhaps I may rise as a parvenu in this House—someone who I have learnt is neither wanted nor needed. I have been called many things in my life but “nouveau riche” is not one of them. I echo the points made by my noble friend Lord Foulkes about the nature of the process that has been undertaken in agreeing the boundaries for the Scottish Parliament. As the Advocate-General was speaking, I was reflecting on the fact that there is no end to the joy in the Scotland Office when such matters arise.

One of the sadnesses that I experience, having been out of this country for four-and-a-half to five years, is the extent to which the craft of politics has fallen into disrepute. It would be unfortunate if we managed to separate the representative—the Member of Parliament in the other place—from the history and the involvement that he or she has with his or her constituency. Anyone who has ever gone to a Boundary Commission hearing and has listened to some of the cases that are put will have heard the passion that exists on the part of Members of the other place for the constituencies that they represent.

My noble friend referred to the fact that the last speech made in Scotland by John Smith was to the Boundary Commission. As the Advocate-General is well aware, I was some weeks later to become the Member of Parliament for Monklands East and subsequently for Airdrie and Shotts, based on the argument that John Smith put forward that day at the Boundary Commission. I have to say that I was privileged to take his seat; I could never fill his shoes. The work that he did for the Boundary Commission was exemplary. Having been born and brought up in the constituency, I did not know the connection between Airdrie and Shotts and the covenanters, for example, but that is the nature of the involvement that people have with the constituencies that they represent. To seek to break that link is to further diminish the role of politicians in both Houses.

I understand that the coalition is intent on these measures and on removing the opportunity for hearings related to boundaries for the other place. It would be a regressive step. To operate just on the basis of numbers of constituents would be a fallacy. I have come back from Australia, where the size of constituencies can be startling. I once had cause to inquire of a Member from the Northern Territory about the size of his constituency. He said that he had 10,000 electors. I said to him, “But you must know the inside leg measurement of every one of your voters”. At that point, he replied, “Yes, but my constituency is the size of Portugal”. We do not quite have constituencies the size of Portugal, although the Advocate-General covered a vast area when he was a Member of the other place. Indeed, the noble Lord, Lord Maclennan, covered a vast area in Caithness and Sutherland. Within those areas—

[Lord Maclennan of Rogart]

The proposed North Highland constituency would be larger than Belgium, if not Portugal.

[Baroness Liddell of Coatdyke]

In some cases that might not be difficult, but I take exactly the point that the noble Lord has made.

In summary, it is easy for those looking on the proceedings of these Houses of Parliament to assume that we are all in it for number crunching and for our own nefarious purposes. However, people feel passionately about the places that they represent. If they do not, they should not even conceive of seeking to represent them in the other place.

The Advocate-General is a balanced and reasonable man. As a former Member of the Scottish Parliament, he will delight in pointing out how the procedures surrounding election to the Scottish Parliament are superior to that proposed for the future election of Members to the House of Commons. I hope that he will take back the strong views of my noble friends on this side of the House about separating the hearings system from the ability to set boundaries for the other place.

Elections: AV Referendum and Scottish Parliament

Lord Maclennan of Rogart Excerpts

Tuesday 20th July 2010 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I am grateful for the opportunity to clarify the position, because I have had the benefit of seeing the letter from Mr Tom Aitchison, the board convener, and have not had to rely just on press reports. In that letter Mr Aitchison indicates that he would encourage the UK Government to amend the order for the Scottish Parliament elections to allow a combined poll to be held. Under the current rules, under the order of 2007, it is not possible for that to happen. However, he goes on to say:

“Allowing a formal combination of polls, for the referendum and parliamentary elections, would have many advantages both for the voter and the electoral administrators”.

We were already seized of that, and it will be addressed in the forthcoming legislation to pave the way for the referendum and the alternative vote. I would only add that the noble Lord—whom I welcome to this House, having served with him in the other place—whipped the Scotland Act, which makes provision for the Scottish election polls to be combined with a poll for another election. It does not allow them to be combined with a poll for a referendum, but that is what the forthcoming legislation will seek to do.

[Lord Maclennan of Rogart]

My Lords, has my noble friend had an opportunity to consider the possible coincidence in timing of the elections to the Scottish Parliament and the general election to the United Kingdom Parliament in 1915? Would that require some alteration of our legislation?

[Lord Wallace of Tankerness]

My Lords, I am sure that my noble friend meant 2015—1915 is beyond my abilities. He makes a very important point. My right honourable friend the Secretary of State for Scotland has already written to the First Minister, the Presiding Officer of the Scottish Parliament, the other political leaders in Scotland, the Electoral Commission and election administrators to say that he is prepared to discuss this issue with them. I can assure my noble friend and the House that my right honourable friend will listen constructively to what they have to say on the coincidence of elections, as a result of fixed-term Parliaments, in 2015 and every 20 years thereafter.