Scotland within the United Kingdom

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Monday 13th October 2014 Lords Chamber

[Lord Martin of Springburn (CB)]

I shall speak in order to tidy things up. The noble and learned Lord is right—the turnout was fantastic. I am proud to live in the constituency of East Dunbartonshire where the turnout was 91% and where they overwhelmingly voted no. Unfortunately, there are elements in the media and the so-called “45 brigade” who say that we should have another referendum. It is important that the cost of this referendum is put clearly to the taxpayers of the United Kingdom. There was a great deal of talk and concern about the poor who had to go to food banks and all the rest of it. We should therefore know the amount of resources that had to be put into that referendum so that anyone who says that they want another referendum soon would at least know the cost of the one that we had three weeks ago.

[Lord Wallace of Tankerness]

My Lords, I am sure that the different strands of costs will be published by the Scottish Government as well as such costs incurred by the United Kingdom Government. It would be very damaging indeed for us to continue to have these debates as they were very divisive. Those of us who live in Scotland know just how divisive they were. As the Secretary of State said in his Statement, it should no longer be about the 55% or the 45%, it should be about the 100%, which is what we are committed to address.

Marriage (Same Sex Couples) Bill

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Wednesday 10th July 2013 Lords Chamber

[Lord Martin of Springburn]

I make the point that, at the time, both the noble and learned Lord and I would have said to Conservative Ministers, “Please consult with the people”. They would have found that the people clearly said, “No way do we want this”. They would then not have got into the difficulties they did when it got to the rest of the United Kingdom.

[Lord Wallace of Tankerness]

The point is that under our constitutional, democratic architecture, Members of Parliament make their judgments, cast their votes and then answer to the electorate. That is the appropriate way in which we go about these matters.

The Prime Minister was mentioned. Anyone who has heard the Prime Minister talk on this issue knows that he does so from real conviction. It is a great credit to the Prime Minister that he has had the courage to give leadership on this issue and that this Bill has got to where it is today.

Support has also been reflected in recent opinion polls. My noble friend Lord Norton of Louth referred to that. I remind your Lordships of a House of Commons Library research paper on this Bill. Here is a summary of polls on same-sex marriages offering a two-way choice: October 2011, ComRes—51% support; 7 March 2012, ICM—admittedly not a majority but 45%; May 2012, YouGov in the Sunday Times—51%; December 2012, YouGov—55%; December 2012, Survation—60%; December 2012, ICM—62%; February 2013, YouGov in the Sunday Times—55%; 5 February 2013, YouGov in the Sun—54%; 19 May 2013, YouGov—55%.

However, I make the point that numbers are not everything. This Bill is about putting right a wrong. We believe in the importance of the institution of marriage. We wish to ensure that gay and lesbian couples can be part of it in the same way as opposite-sex couples. We want to get on with that, and therefore I ask the House to reject this amendment.

Marriage (Same Sex Couples) Bill

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Monday 17th June 2013 Lords Chamber

[Lord Martin of Springburn]

I thank the noble and learned Lord. That clarifies the matter. So once again the papers have got it wrong and the true story is that clarification was sought from the Lord Great Chamberlain and the case is perhaps as I stated it, but no Minister has made any approach to seek to get the Crypt—as we call it—turned into a prayer room rather than a church.

[Lord Wallace of Tankerness]

The position is as I understand the noble Lord to have described it: to my knowledge and that of my noble friend, no Minister has made an approach of the kind the noble Lord describes. As I indicated, the issue having been raised in Committee, the Minister Helen Grant undertook to consider it. Officials approached the Office of the Lord Great Chamberlain—possibly not the Lord Great Chamberlain himself—to seek clarification, and the position on the use or non-use of St Mary Undercroft is as I have set out. I hope that gives clarity.

[Lord Martin of Springburn]

My Lords, I withdraw the amendment.

Scotland: Referendum

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Tuesday 26th March 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, as noble Lords will recall, we agreed to a Section 30 order under the Scotland Act in January of this year, which transferred powers to the Scottish Parliament to determine the nature of the referendum. A Bill has been brought in for a referendum; indeed, another Bill has been brought in to determine the franchise for that referendum.

[Lord Martin of Springburn]

My Lords, it is not the first time that ballot papers have not been made available in good time for those entitled to a postal vote. Could the Minister, when he next meets the First Minister, ensure that the printer gets the ballot papers to the returning officers so that those who are entitled to postal votes get them?

[Lord Wallace of Tankerness]

The noble Lord makes an important point. That would be overseen by the Electoral Commission and the Electoral Management Board for Scotland. Unlike elections, where candidates are often not nominated until the last minute, we now know what the question is, so there is no reason why these ballot papers should not be prepared well ahead of time.

Justice and Security Bill [HL]

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Tuesday 19th June 2012 Lords Chamber

[Lord Wallace of Tankerness]

There is a strong case, and having heeded the representations, we took that particular route.

I was trying to explain that CMPs have been part of our legal system sometimes by agreement in civil cases and that is compatible with the interests of justice, so why bring forward the Bill? The reason is that the Supreme Court last year, in a case called Al Rawi, held that a court is not entitled to adopt a closed material procedure in ordinary civil claims for damages. The court held that it was for Parliament, not the courts, to decide where closed material procedures should be available. The consequence has been that we are no longer able to rely on the ability of the courts to find their own way through this difficult issue of disclosure.

Hence the provisions in Part 2 of the Bill, which seek to respond to this challenge in a proportionate and targeted manner. It makes CMPs available in narrow circumstances—namely, in civil proceedings in the High Court, Court of Appeal and Court of Session, where material is relevant to those proceedings, disclosure of which would damage the interests of national security. Importantly, it will be only after the Secretary of State has considered whether a claim for public interest immunity should be made. In line with a recommendation of the Joint Committee on Human Rights, Part 2 also allows for the transfer of judicial reviews of exclusion, naturalisation and citizenship decisions to the Special Immigration Appeals Commission, which has well established closed procedures.

Under the plans, where the Secretary of State applies for a CMP in civil cases, it will be for a judge to declare whether a CMP may be used. The judge will make this declaration on the basis only of national security considerations, not crime or international relations. Inquests, as we have indicated, have been excluded, and we were never intending to make CMPs available in the criminal courts.

Let me stress the safeguards that will apply. The Secretary of State will first have to consider whether the material can be dealt with by making a claim for public interest immunity. This will be a legally binding obligation and failure to comply can be judicially reviewed in the courts. The Secretary of State will then apply to a judge, and that judge will declare whether in principle a CMP may be used. That judge is the decision-maker. He or she must be satisfied that there was material relevant to the case, the disclosure of which would damage national security.

Once the judge has taken a decision in principle that a CMP may be used, a second exercise will take place in relation to the individual pieces of evidence which he decides are national security sensitive, following representations by a special advocate whose job is to act in the interests of the claimant. The judge will determine the treatment of each piece, whether redacting individual names or sentences would allow the evidence to be heard in open, or whether a summary of the evidence withheld must be made available to the other party and so on. The Bill does not upset the established position that it is for Ministers to decide whether to claim PII. Consequently, it should be the responsibility of the Secretary of State to apply for a declaration to the court that a closed material procedure may be used.

Some suggest that the Government may choose between claiming PII and applying for a closed material procedure opportunistically. Some say that the Government would apply for a closed material procedure where the material was helpful to the Government on the basis that the material could be considered by the court and that the Government would claim PII where the material was unhelpful so that, if successful, the PII claim would exclude that material from consideration.

It is not a realistic concern. The intention behind the closed material procedure proposals is precisely so that allegations made against the Government are investigated and scrutinised by the courts. The intention is that all relevant material—helpful or unhelpful—will be before the courts. It is hard to see that a judge assessing a PII claim would conclude that material should be excluded if the Government were seeking cynically to use PII to exclude material that undermined its case when a closed material procedure was available as an alternative.

The Bill makes absolutely clear that the court must act in accordance with the obligations under Article 6 of the European Convention on Human Rights—the right to a fair trial. The overall effect will be that in practice all evidence currently heard in open court will in consequence of the CMP provisions continue to be heard in open court, including allegations against the state. In reality, claimants will receive as much information where there is a CMP as they would following a PII exercise.

A number of respondents to the consultation made the points that CMPs are a departure from the tried and tested fundamentals of open justice. I agree. No Government propose measures in this area lightly. However, as we have seen, CMPs are already used in our justice system, and have been endorsed by both domestic and international courts for the good reason that they provide a fairer outcome when the alternative is simply silence—no judgment at all and no questions answered.

Briefly, I move on to the final set of provisions in the Bill—namely, ensuring the protection of our intelligence-sharing relationships and our domestically generated intelligence through reform of an area of law that is known as the Norwich Pharmacal jurisdiction. The Norwich Pharmacal jurisdiction grew up in the sphere of intellectual property law, where it is used to force a third party who—however innocently—is mixed up in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing elsewhere.

However, in 2008 a particularly innovative group of lawyers sought, in the case of Binyam Mohamed, to extend this jurisdiction to argue disclosure of sensitive intelligence information held by the British, including that provided in confidence by our allies. A specific right to the disclosure of intelligence services information has been ruled out by Parliament in the Freedom of Information Act and the Official Secrets Act. Yet, since Binyam Mohamed, there have been no fewer than nine attempts to use this jurisdiction in relation to sensitive information, including secret intelligence.

What is particularly troubling about this area of law is that, as the purpose of the proceedings is solely to gain disclosure of material, the Government do not have the option to withdraw from or settle the proceedings. If a judge orders disclosure, there is no option but for the Government to release the secret intelligence. Those who cannot keep secrets soon stop being told secrets. We expect our allies to protect intelligence material that we share with them from disclosure, and they expect the same from us. It is a regrettable fact that uncertainty about our ability to properly protect classified information provided by foreign Governments has undermined confidence among key allies, including the United States. In some cases, measures have already been put in place to regulate or restrict intelligence exchanges.

This is not just about material from overseas partners. We also need to protect from disclosure United Kingdom-generated sensitive material, which, if disclosed, could reveal the identity of United Kingdom officers or their sources and capabilities. To give but one example, not only could disclosure of sensitive intelligence derived from a UK human source jeopardise an ongoing intelligence dividend from that source, it could also blow the source’s cover, putting his or her life at risk. Our intelligence agencies cannot operate effectively if they cannot offer their sources protection. Norwich Pharmacal is the wrong tool for national security cases. The Government must regain the discretion to decide what the best way of assisting someone should be. Unless we address this situation robustly, the UK will continue to be seen as a soft touch by those wanting to get access to sensitive information. Our allies will—

[Lord Martin of Springburn]

I am sorry that the noble and learned Lord is upset about this interruption—

[Lord Martin of Springburn]

Yes, me of all people, but I am entitled to seek information. The noble and learned Lord mentioned the Freedom of Information Act and people seeking access through that Act. Is it the case that someone living abroad can make an application under the Freedom of Information Act to information officers over here, including those in Parliament? I hope that I have been brief enough for the noble and learned Lord.

[Lord Wallace of Tankerness]

I cannot give an immediate answer to that question, but I suspect that it may be the case. The important point in this context, as I have just indicated, is that Parliament has decided that, under the Freedom of Information Act, a specific right to the disclosure of intelligence services information has been ruled out, irrespective of where the applicant comes from.

That is why the Government intend to legislate to exempt from disclosures under a Norwich Pharmacal application material held by, originating from or relating to an intelligence service defined as including the intelligence agencies and those parts of Her Majesty’s Armed Forces or the Ministry of Defence that engage in intelligence activities, or if the Minister has certified that it would cause damage to national security or international relations if it were disclosed. I seek to reassure the House that these measures will have no impact on claims that the Government or the security and intelligence agencies have been directly involved in wrongdoing; nor do they prevent someone enforcing their convention rights, and nor do they exempt the agencies from their disclosure obligations in other civil cases. We are not seeking to abolish an ancient right. The Norwich Pharmacal jurisdiction has existed only since the 1970s and it has been found to apply in national security cases only since 2008. Our reforms will affect the jurisdiction only in so far as it applies to national security and international relations.

In conclusion, the Bill seeks to reshape the way we scrutinise the actions of our security and intelligence agencies both inside and outside the courts. The Bill raises significant issues about how we can best achieve that scrutiny, and what should be the respective roles of Government, Parliament and the courts. As I have said, the Green Paper that preceded this Bill prompted much public debate. The Government listened carefully to that debate and have responded by amending their proposals, including taking up a number of suggestions made in a useful report published by the Joint Committee on Human Rights, a number of whose members I am sure will contribute to this debate. There has also been an important report from the Constitution Committee, to which we intend to respond soon.

I think that the provisions in this Bill are a measured and proportionate response to the challenges I described earlier. We need to ensure that the courts can secure that justice is done. We must maintain the rule of law and ensure that proceedings are fair for all parties to the case. We must protect information that is shared with us in confidence, particularly if it would inhibit the ability of our security and intelligence agencies to keep us all safe if there is a risk that it could be disclosed, and we must make sure that those we trust to oversee the work of the agencies on our behalf have the powers to do an effective job and are able to command public confidence.

I look forward to what I am sure will be a thorough and instructive debate both today and as we proceed into Committee on how we meet those challenges and seek to balance the age-old tension between liberty and security. I commend the Bill to the House and I beg to move.

Scotland Bill

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Tuesday 24th April 2012 Lords Chamber

[Lord Wallace of Tankerness]

I do not dispute that. It needs to be addressed. It is one of the key issues that those who advocate ultimate fiscal autonomy or independence must address. I do not think that the noble Lord is suggesting that it would be suitable for inclusion in the Bill, but it is an important issue that has to be properly and fully addressed in the debate that we will undoubtedly have on the independence referendum.

[Lord Martin of Springburn]

For the sake of getting things on the record, I am very heartened to hear the Minister say that he is keen on having one question alone on the ballot paper. For the record, is that the policy of the Government or will there be a situation in which the Prime Minister may say something different?

[Lord Wallace of Tankerness]

My Lords, it is fair to say that in the consultation paper that we launched on 10 January it was made clear that a single question was the preferred position of the United Kingdom Government. I am happy to say that the responses that we have received to that consultation give great support to that position.

In conclusion, I again acknowledge the benefit to the Bill of consideration and thorough scrutiny in your Lordships’ House, and not just in those areas where amendments have been made as a result of our debates. Through our debates we have explored many of the issues that we will continue to face as we move to the next important phase of implementing legislation. I echo the thanks not only to those who have taken part in the debates but to those who have supported me and my noble friend Lord Sassoon in them. While there have clearly and importantly been divisions—it would be very boring and impossible to achieve total consensus—it is not usual for a Bill to be supported by all three United Kingdom parties. However, there has been a note of consensus, which has been welcome. I also welcome the scrutiny. Whether noble Lords were supporters of devolution back in 1998 or support every clause here, I hope we recognise that we are stronger within a United Kingdom in which we devolve powers to the appropriate level and work together to pool resources and risks across the country for the benefit of all. That is what the Bill seeks to advance. It is part of developing and continuing support to maintain the United Kingdom, of which all noble Lords and I are very proud. I ask my noble friend to withdraw his amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Monday 30th January 2012 Lords Chamber

[Lord Martin of Springburn]

I apologise for being late for the Committee; I was travelling from Scotland. I am sure that the noble and learned Lord will acknowledge that cases that involve 100 per cent recovery are those that go to court. There are stages where settlements can be made. The defendant can make an offer that can be accepted. If it is done at an early stage there will not be the 100 per cent costs that we were talking about.

[Lord Wallace of Tankerness]

My plane from Edinburgh, too, was delayed today; I understand the noble Lord's difficulties. He mentioned the arrangement for making offers. Part 36 arrangements were spoken to by my noble friend Lord Thomas when he moved the amendment. I will come to the matter in responding to the debate.

As I indicated, very often these cumulative costs can lead defendants to feel under pressure to settle a claim when they have no legal reason to do so, through fear of incurring payment of excessive costs as the case proceeds.

Without Clauses 43 and 45, high and disproportionate costs in civil litigation will continue. Access to justice will not become more meaningful for all parties, as we intend. If all the amendments to Clause 43 were agreed, the fundamental elements of the Government's reform package would be lost, and defendants would continue to be liable for significant additional costs across a range of cases. It is useful to put the level of costs in some context. My noble friend Lord Phillips pointed out that one general liability insurer indicated that, in 1999, claimants’ solicitor’s costs were equivalent to just over half the damages paid; by 2004, average claimants’ costs were roughly the same as the damages; and, by 2010, average claimants’ costs represented one and a half times the damages received by the injured victims, and indicated that while average damages paid have increased by one-third since 1999, average claimants’ costs have increased by two and a third times over that period. These figures reflect Sir Rupert Jackson’s findings that claimants’ costs are substantially higher than defendants’ costs, and that claimants’ costs in CFA cases are substantially higher than in non-CFA cases.

--- Later in debate ---

[Lord Martin of Springburn]

On the incentive to settle early—I am trying to put this in layman’s terms—is the noble and learned Lord saying that a claimant can, through his solicitor, put it to the defendant that it would be a reasonable settlement, for example, to pay X amount or to print something in a particular magazine that would help the defendant to get his reputation back? Is the noble and learned Lord saying that, if such an offer is refused by the defendant, that would be taken into consideration by the court?

[Lord Wallace of Tankerness]

I think I understand what the noble Lord is saying and I think I gave an indication on that point. Let me just try to find that—

UK: Union

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Wednesday 18th January 2012 Lords Chamber

[Lord Wallace of Tankerness]

I agree with my noble friend that if the separatists were to have their way and Scotland were to vote to leave the United Kingdom, that should be determined by the people of Scotland. I also agree with him that the so-called devo-max proposal, as far as one can understand what it is—in our exchanges last week, noble Lords suggested that it was a product without a brand or a brand without a product; I cannot remember which way round it was—has implications for other parts of the UK, and we are certainly well seized of that fact.

[Lord Martin of Springburn]

My Lords, as a Scot, I do not want separation. I feel strongly that there should be only one question in the referendum, and one question alone. I ask the Minister to give some advice to the Prime Minister: the best thing that he can do would be to stop appearing arrogant in his interventions. It does not help those of us who want to retain the United Kingdom.

Fixed-term Parliaments Bill

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Tuesday 29th March 2011 Lords Chamber

[Lord Wallace of Tankerness]

It is for the purpose of making it legally certain that the circumstances have been met, that the conditions have been fulfilled, under which an early election could be called and that the next election should not be on the date on which it would otherwise be under the Bill. That is the purpose. If it is of a factual nature, that should not cause any problem or place pressure on the Speaker. I acknowledge that where the Speaker has to decide whether a matter is a vote of no confidence or not, other factors come into play, and we have certainly listened to what has been said.

[Lord Martin of Springburn]

I thank the Minister for being patient with me. The noble Lord, Lord Marks, was kind enough to say that proceedings shall not be challenged. It is important that the Minister goes away to consider this and perhaps consults the noble Baroness, Lady Boothroyd, and myself on our experience. I am talking from memory, but the signing of a certificate is not necessarily regarded by the courts as a proceeding of Parliament. Decisions are proceedings of Parliament, but the signing of a certificate by the Speaker is different and is not necessarily regarded as a proceeding of Parliament. I throw that one in, and it is important that the Minister goes away to think about this.

[Lord Wallace of Tankerness]

My Lords, I accept the offer of the noble Lord—and perhaps of the noble Baroness—to discuss this. I am more than willing to do so. However, as my noble friend Lord Tyler mentioned, certificates in relation to finance matters under the Parliament Act have never in 100 years been subject to challenge. The noble Lord, Lord Martin, says that they are different; they are certifications; they are certificates that are issued.

Regarding the other points made by the noble Lord, Lord Howarth, that were alluded to by the noble Baroness, Lady Boothroyd, in the Anisminic case in the 1960s the courts were able to review determinations of the Foreign Compensation Commission, even though those determinations were, by statute, not to be called into question in any court of law. However, in those cases, the starting point was that, but for the ouster clause in the statute, the courts would have had jurisdiction. The courts were thus looking for clear words to exclude an otherwise existing jurisdiction.

The facts of this circumstance are different, because the courts do not have jurisdiction over internal parliamentary proceedings. The fact that the subject matter of the certificate relates to internal parliamentary proceedings that are off limits to the courts means that there will be no motivation for courts to interpret the provisions that provide that Speaker’s certificates are conclusive narrowly.

In the other case which the noble Lord mentioned, regarding Jackson v Attorney-General, two issues have perhaps been conflated. Perhaps that is where confusion has arisen. The issues were, first, whether courts can inquire into the validity of Acts of Parliament; and, secondly, whether courts can inquire into internal parliamentary proceedings. On that second issue, the House of Lords, in its judicial capacity, asserted a view that is complete orthodoxy: that the Commons Speaker had certified that the internal proceedings of Parliament leading to the Hunting Act being passed had been complied with. The House of Lords in its judicial capacity did not look behind the Speaker’s certificate and did not question the internal proceedings of Parliament. It indicated that it would not and could not look at the internal proceedings adopted in Parliament in enacting the Hunting Act 2004.

The noble Baroness, Lady Boothroyd, referred to the European position and mentioned the case involving Sinn Fein and Martin McGuinness. Interestingly, in the Northern Ireland High Court, it was held that the matter was not justiciable on the grounds that it fell within the exclusive cognisance of the House. It is accepted that Article 9 of the Bill of Rights does not apply to the European Court of Justice or the European Court of Human Rights. However, a case will be brought before such courts only where EU law or convention rights are engaged, respectively. The subject matter of the Bill is not in any way related to EU law. Likewise, the functions of the Commons Speaker under the Bill do not engage any convention rights. In support of this point, the Joint Committee on Human Rights has reported that the Bill did not need to be brought to the attention of either House on human rights grounds.

I should add that in the case of A v United Kingdom in 2003, the European Court of Human Rights held that Article 9 of the Bill of Rights did not violate the convention by preventing an applicant from taking defamation proceedings against an MP for words said in parliamentary proceedings. While noble Lords have raised a legitimate point, it leads to the view that the noble and learned Lord, Lord Falconer, has expressed today and at Second Reading, that a Speaker’s certificate would not be challengeable in the courts. I agree with that analysis and it is no disrespect to the Clerk of the House to state that, although he advanced a different argument. The weight of evidence given to your Lordships’ Constitution Committee was such that it, too, thought that the weight of evidence was that it was highly unlikely that the certificates would be justiciable.

Important distinctions are to be made between that issue and the other concerns that have been expressed about bringing the Speaker into some political role. We have an opportunity to debate these matters further, but, in the light of my comments, I hope that the noble Lord, Lord Howarth, who I once again thank for introducing this important debate, will withdraw his amendment.

Fixed-term Parliaments Bill

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Monday 21st March 2011 Lords Chamber

[Lord Wallace of Tankerness]

I am grateful for that clarification because I had interpreted his amendment as leaving 7 May 2015 to stand and that thereafter there would be four years. I am grateful to hear the noble and learned Lord say that that was not the intention, because that was going to be the answer that I gave to my noble friend Lord Cormack. I accept that it may well be an error in the drafting.

The point that I would make is that this Parliament was elected for a maximum of five years, so in moving to a fixed-term Parliament regime we are embodying that in the Bill—and then thereafter also to have five years. That is the point that I make to the noble Lord, Lord Butler. Of course it is right and it goes without saying that no Parliament can bind its successor. The noble Lord and others say that there is no need for this legislation, but what we are seeking to do is to have fixed-term Parliaments on into the future. Other Parliaments can repeal that, but obviously it would take primary legislation to repeal a system of fixed-term Parliaments. I would very much hope that, having established the principle of fixed-term Parliaments, in the same way as we have fixed terms for devolved Assemblies, for local government and for the European Parliament, fixed terms would become the norm.

I take the point made by my noble friends Lord Marks and Lord Rennard with regard to pre-legislative scrutiny. I have been at the receiving end of many complaints about the lack of such scrutiny. There is an issue about the first year of a Government, because when they come into office they want to get on and start dealing with things. One can readily imagine the criticism that would come from the Opposition if a Government were not doing anything. However, there has been a move over the years to having more pre-legislative scrutiny, which has the effect of increasing the workload on both Houses. It is not fanciful to imagine that, following the election in 2015, a Government of whatever colour will not be able to commence their first Session of legislation with more substantive Bills until there has been a considerable amount of pre-legislative scrutiny. So we are talking about the beginning of 2016 as the time when some key pieces of legislation are introduced, having properly been looked at beforehand.

The final year, whether the term is four years or five years, is always going to be one when those seeking re-election look to their constituencies. That would reduce by some way the effective time for legislation by a Government. My noble friend Lord Norton made the point in one of our debates on the first day in Committee that Governments might run out of steam in the fifth year. Allowing for pre-legislative scrutiny and knowing that there will be five years allows for the legislative programme to be planned more effectively. The fifth year, particularly if it is a full year, not one starting at the end of November with a wash-up in the middle of March, would then be used much more effectively.

I defer to the huge experience of the noble Lord, Lord Martin, as he was Speaker of the other place and has an understanding of the parliamentary process. However, the final year, be it the fifth or the fourth year, would inevitably be one when the shadow of the coming election loomed. I also point out that my understanding is—although I may be corrected—that now Thursday debates in the other place are very often chosen by a Back-Bench Committee and that the Government have given power to the Back-Bench Committee to determine the subject matter for debate. I would be interested to know how many Divisions there have been on Thursdays in the first Session of a Parliament, as the noble Lord made the point about how few there were in the fifth Session. That is another measure that this Government have taken to put more power in the hands of Parliament rather than the Executive.

[Lord Martin of Springburn]

I cannot speak for what is going on in the other place at the moment. However, if my memory serves me correctly, the Minister followed Jo Grimond into the House of Commons in 1983, so he will appreciate as a former Scottish Member that on a Thursday there were votes more often than not, because we had to take the sleeper home. The other thing is that the Minister has had more experience of four-year Parliaments than five-year ones. In the last Session of a five-year Parliament, there were no votes whatever on the Floor of the House of Commons on a Thursday. That is what happened in the last Session of Parliament before the general election—there were no votes at all. The Minister has never had the experience of when that was the case.

[Lord Wallace of Tankerness]

I agree that it was never my experience. One thing that I am glad that I do not have responsibility for is how Parliament under the last Government was arranged in its final year. The point that I was making was that I believe that, be the term four or five years, the final year will be taken forward under the looming election. If one goes to four years and one has pre-legislative scrutiny, that cuts down the effective time for the Government to introduce their measures, let alone for their measures to be judged.

Fixed-term Parliaments Bill

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Tuesday 15th March 2011 Lords Chamber

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

My Lords, again this amendment has stimulated an interesting debate, some of which goes into the general principles of fixed-terms Parliaments and some of which foreshadows the later debate we will have on the figure of four or five years. The amendment would omit the date of 7 May 2015 and provide instead that the next parliamentary general election should be held within a range of four to five years after the previous general election. In other words, we would be looking at an election held no earlier than 6 May 2014 and no later than 6 May 2015.

As my noble friend Lord Tyler very succinctly put it, that drives a coach and horses through the whole concept of a fixed-term Parliament because it would put back into the hands of the Prime Minister the option of choosing the date of the election which those of us who have supported the concept of fixed-term Parliaments want to move away from. I say to my noble friend Lord Cormack that it would quite easily be resolved because the Prime Minister could do so only if he had the agreement of the Deputy Prime Minister. It would be in the very circumstances where the Deputy Prime Minister and the Prime Minister fell out that the chances would be that the Prime Minister would want that option—the circumstances perhaps more graphically, from a literary perspective, expressed by the noble Lord, Lord Martin of Springburn. As my noble friend Lady Stowell said, the important point about fixed-term Parliaments is that the Government of the day have to face the electorate on a predetermined date regardless of the prevailing political circumstances.

Asquith was quoted. I have read this quote several times, and I am glad that the noble Lord, Lord Howarth, did quote him because it gave us the benefit of the intervention by my noble friend Lord Brooke. We can have a quite legitimate debate about what Mr Asquith was saying on 21 February 1911. He said that reducing the Parliament from seven years, as it previously was, to five years would,

“probably amount in practice to an actual legislative working term of four years”.—[Official Report, Commons, 21/2/1911; col. 1749.]

He did not say that the term would be four years, but that legislative working term would be four years. That reflects the comments referred to by my noble friend Lady Stowell that were made by the noble Lord, Lord Armstrong of Ilminster, at Second Reading. I readily concede that he has misgivings about the idea of fixed-term Parliaments, but he said that if we have them, he prefers five years rather than four years because:

“Even with a term of five years, that shadow extends over the last year of the term and tends to reduce to no more than four years the period during which government policy-making and parliamentary debate can effectively be pursued without too much looking over the shoulder at electoral considerations”.—[Official Report, 1/3/11; col. 971.].

His concern is that if we have a four-year fixed term, it would kick in at the end of three years. Obviously, if we are going to have even more prelegislative scrutiny in the first year, that shrinks the time available to Governments to deliver their programme.

My noble friend Lord Norton, the noble Lord, Lord Martin, and others have indicated that our recent experience of Governments who have gone for a fifth year has not necessarily always been happy. In many ways, that almost makes the point. The only reason those Governments limped on during the fifth year was that it was not propitious or opportunistic for the Prime Minister of the day to call an election after four years because he thought he was going to lose. If you have a five-year fixed term, clearly Governments can plan for those five years. It may well be that they can do more prelegislative scrutiny in the first year. There will inevitably be an election looming at the end of the fifth year, but you are more likely to get proper planning for five years and a Government not having to go for the fifth year because they do not think it opportune to go at the end of four years.

[Lord Martin of Springburn]

I am at a loss to understand why the Government do not go for four years. Another feature about a fifth year is that everyone will be in the doldrums. Members of Parliament will not stay in the Chamber. They will be campaigning in their constituencies. That will be a problem in the fifth year. I know that some noble Lords are muttering and I do not want to go on for too long because I was accused on the radio of filibustering not so long ago, which was not true. My point is that, if there is legislation in the fourth year, Members of Parliament will stay because of their duty to vote, but if there is nothing doing in that final year, they will be campaigning in their constituencies.

[Lord Wallace of Tankerness]

My Lords, with all due respect, the noble Lord makes the mistake of trying to impose on a new situation of a five-year fixed-term Parliament the problems that have arisen under the existing system. Clearly, if a Government are elected for five years, and they know that it is a fixed term and that they will not have to make a calculation at the end of three and a half years or four years on whether they should go to the country, they can plan their legislation properly for the five years. Parliament’s committees can plan their programme of work for five years in terms of bringing the Government to account. It is wrong to take the experience of an existing system, which I would argue is one of the problems of the existing system. A Government might not think that they can cut and run after four years and will limp on into the fifth year. Where there is a fixed term for five years, the Government could plan for five years, subject only to overriding circumstances, which is why we have the escape-hatch mechanisms as set out in Clause 2.

I also take the point made by the noble Lord, Lord Pannick, which I would link to my answer to the noble Lord, Lord Grocott. He says that this Parliament should see its five years through and that it was elected for five years. As perhaps was suggested by the noble Lord, Lord Martin, we would not act like some trade union baron—he said that the trade union baron would not do it and that he would be criticised if he did—and try to get more time than we were elected for. This Parliament was elected for five years, as I indicated in an earlier debate. The next election could take place as late, I think, as 11 June 2015, so there is no question of this Parliament trying to take extra time unless there were overriding circumstances, whether it be two months for, say, a foot and mouth outbreak.

We are also proposing that future Parliaments should be for five years. Clearly, no Parliament can bind a successor, which is a position that we recognise. I would say to the noble Lord, Lord Grocott, I believe in fixed-term Parliaments. Who would predict the result of the next election this far out? There is no guarantee that the Government will involve my party or the Conservative Party. It may well be a Government of the Labour Party. I am prepared to say that, yes, I believe in the fixed-term Parliament. If it was a Government of the Labour Party that was to last five years, that would be the right thing to do. Having believed in the concept of fixed-term Parliaments, I am prepared to accept that that could be a consequence. I hope that the noble Lord will take that in the good faith in which it is offered.

I cannot accept that this is a fix for this coalition Government, because we will not necessarily be the Government after 2015. Clearly, we will want to fight our case as best we can. The Conservative Party will undoubtedly want to get as many seats as it can. We as Liberal Democrats will want to get as many seats as we can. Who knows what the outcome will be? At this stage, who knows what electoral system the election might be fought on? It would be impossible to predict. The principle of supporting the fixed-term Parliament means that what is sauce for the goose must also be sauce for the gander and I readily accept that.

I believe that to adopt the amendment as proposed by the noble Lord, Lord Howarth, would completely undermine the whole principle of having a fixed-term Parliament. It would reintroduce the opportunity for the Government of the day in that final year to choose the most opportune moment to go to the country. My noble friend Lord Lawson in his book, The View from No.11: Memoirs of a Tory Radical, said about the then Prime Minister, now the noble Baroness, Lady Thatcher:

“Her view was that a Government should always wait until the final year of the quinquennium, but once there should go as soon as it is confident it will win”.

Clearly, the judgments of the noble Baroness, Lady Thatcher, in 1983 and 1987 were absolutely right as far as the Conservative Party interest was concerned, but it underlines the fact that it was a question of going when it was politically opportune to do so. That is what this amendment takes away from the Prime Minister of the day and that is why I urge the noble Lord to withdraw it.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Tuesday 8th February 2011 Lords Chamber

[Lord Martin of Springburn]

I thank the noble Lord; I am obliged. I intervened on cross-examination but it was not my interest to worry about cross-examination by solicitors or QCs in an inquiry. Like the noble Lord, Lord Rooker, I have been to three inquiries, but they were in the city of Glasgow. They were very fair indeed. People from all walks of life turned up to put their case. Sometimes people would go along and say that they represented several community organisations. No lawyer present would have known how to test the case that was being put—that they belonged to those community organisations—but someone who lived in the community would. It was lay people who sometimes brought out in cross-examination that perhaps they were not, and could not claim that they were, truly representative of the community councils or residents’ associations as they claimed to be. Those lay people had local knowledge.

It is easy to talk about splitting up wards and putting one ward into another. However, often the argument for moving a ward from one constituency into another is based on where the local facilities, such as transport and schools, are. That is often why church leaders turn up where the local churches are based. Therefore, in the course of cross-examination, lay people can paint a picture of the true local situation for the examiner. I would be just a bit worried about discretion. People should be able to cross-examine as of right.

[Lord Wallace of Tankerness]

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

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

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

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

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

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

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

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

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

Parliamentary Voting System and Constituencies Bill

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Monday 10th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

The noble Lord will get an opportunity to reply.

That does not mean to say that that is not an important issue. We have debated it in the context of Part 1. As the Committee will know, the Government are committed to taking forward the proposals already set in train—by the noble Lord, Lord Wills, himself—on individual registration. My right honourable friend the Deputy Prime Minister has also indicated that there will be a pilot scheme to allow local authorities to data match with other sets of data to try to get a better understanding and a better way to identify those who are not on the electoral roll.

To think that to fight an election in 2015 on an electoral roll that has as its basis the electorate in the year 2000 is in some way better defies rational consideration. What the Bill proposes—a rolling review every five years and efforts which we are making which, I think, will be widely supported across the Committee, to encourage individual registration and to identify where there are people who ought to be on the electoral roll but who are not—is far more likely to have an effect for the general election of 2020 than setting up a committee of inquiry that might take ages to report and then to have legislation following on the back of that. We are more likely to achieve what is a perfectly laudable and proper aim of ensuring that as many people who are entitled to vote as can be are on the electoral roll by the way that we are going about it. That is more likely to lead to success.

The noble Lord’s amendment also questions whether equally weighted votes should be given priority over other factors. We are aware of and sensitive to other reasons—the noble Lord, Lord Howarth, and others mentioned the importance of local ties and communities—for proposing exceptions to the principle. An identity with or affiliation to certain areas of community is something that many people feel to be of considerable importance. Those of us in this House who have been Members of the other place feel that in particular. We acknowledge that there is a strength of feeling, and we would certainly want those with a local interest to make representations to the Boundary Commission in relation to local ties and for the Boundary Commission to be able to take them into consideration. The Bill will allow for constituencies to vary in the number of electors by as much as 10 per cent—that is, 5 per cent either way—of the UK electoral quota. That will allow the commission to take local factors into account. We will no doubt debate possible exceptions: I am sure that amendments have already been tabled to allow us that debate.

Another issue raised was workload. It is not the case that workload is a factor taken into account by the Boundary Commission at the moment. One speech suggested that somehow the Government excluding that was another manifestation of evil. It would be a judgment of Solomon for any independent inquiry to work out what is a relevant workload for a particular Member of Parliament. The noble Lord, Lord Martin of Springburn, mentioned the high asylum-seeker numbers in the constituency which he formerly represented with great distinction. I remember as a Scottish Minister once visiting his constituency on an asylum-seeker issue; I know precisely what he means. However, as a representative of a landlocked constituency, he never had to deal with an oil tanker carrying 84,000 tonnes of crude oil crashing and spilling its oil in the middle of his constituency. There are different things which different Members of Parliament have, by the very nature of their constituencies, to deal with. It would be more than a judgment of Solomon to try to weigh up what the different workload was for different Members of Parliament.

[Lord Martin of Springburn]

I did have the Forth and Clyde Canal to worry about.

[Lord Wallace of Tankerness]

And the mind boggles as to what kind of issues that may have given rise to. That probably just proves the point that every person who has been a Member of the other place can say why their constituency was that bit different.

I turn to the specific point raised by the noble Lords, Lord Touhig and Lord Elystan-Morgan, about their concern about the union. I am as passionately concerned about the union as they are. The important point to remember is that the reform means that a vote in Cardiff will have an equal value to a vote in Belfast, Glasgow, Edinburgh or London. To me, that does not undermine the union; giving an equal value to a vote in Cardiff, Edinburgh, Belfast and London will, we hope, bring the union closer together. The noble Baroness, Lady Liddell of Coatdyke, indicated that she brought forward an order that was of significant cost to the Labour Party in terms of the number of seats in Scotland following devolution. Indeed, if this Bill goes through, there will be a further decrease, but I have to be honest and say that I do not really remember the rafters falling in in Scotland. Indeed, people thought that it was important. My party argued within the Scottish Constitutional Convention that there ought to be a reduction in the number of Scottish MPs at Westminster if we got a Scottish Parliament dealing with a whole range of domestic issues. When it comes to workload, how are we going to evaluate the workload of an English MP vis-à-vis a Welsh MP or a Scottish MP? Is there going to be a differential? I do not think that anyone has suggested that we should have different MPs in terms of their quality.

The question of the Scottish Constitutional Convention which the noble Lord, Lord Foulkes, asked me to address was partly addressed by my noble friend Lord Maclennan of Rogart. The noble Lord’s mind is perhaps playing tricks. It was not facilitated by a Labour Government prior to legislating for the Scottish Parliament. The Scottish Constitutional Convention was established under a Conservative Government. It not only did not include the Conservative Party; it did not include the Scottish National Party either. That was through no fault of the convention, I hasten to add, but because those parties chose not to join it.

There is no way in which I can say that the number of 129 seats in the Scottish Parliament was a consensus arrived at by all the parties. One day, I will perhaps tell the House how the noble Lord, Lord Robertson of Port Ellen, and I reached the number of 129 but if I do—“Not now” says the noble Lord, Lord Strathclyde—it probably means that the number of 600 will hit the heights of scientific measurement compared to how that was done.

Scottish Parliament (Constituencies and Regions) Order 2010

Debate between Lord Martin of Springburn and Lord Wallace of Tankerness

Tuesday 26th October 2010 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, that is clearly beyond this point. People from different political parties took different views.

I would also like to reflect on what was said by Professor Ron Johnston, who is a professor of geography at the University of Bristol whose research interests include electoral and political geography. On oral inquiries, he said that they are,

“very largely an exercise in allowing the political parties to seek influence over the Commission's recommendations—in which their sole goal is to promote their own electoral interests”.

Far be it from me to suggest that that was what happened, but I just ask noble Lords to wonder whether there might have been something of that when people needed to get lawyers—even if they had to pay for their lunch—to argue their case.

[Lord Martin of Springburn]

My Lords, we were not alone in bringing in the big guns. The Liberal Democrat Party had an eminent QC called Ming Campbell. I do not know whether he got a lunch, but our QC got a decent lunch anyway.

[Lord Wallace of Tankerness]

My Lords, there is no such thing as a free lunch. I take the point that one could not say that the Union of Catholic Mothers and the other organisation to which he referred were in any way partisan.