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

Lord McAvoy Excerpts

Tuesday 12th July 2011 Grand Committee

[Lord McAvoy]

My Lords, after 24 years in the Houses of Parliament I find it a bit of a shock to the system to be the Labour Party spokesperson on anything. I was expecting the doors to open and folk to come from miles around to have a laugh, but there we are. First, I thank the Minister for offering the services of his staff in briefing me on the orders. I would have taken that up, but I felt a twinge of conscience and a bit guilty that the Minister was prepared to inflict that on his staff. I am not sure what they have done to him, but I am grateful for the offer.

I start in reverse order with the adoption and children order. I certainly agree with the noble Lord, Lord Maclennan of Rogart, about the clarity of the Minister’s explanation. Even though I read the Explanatory Notes and the other literature, hearing the Minister speak was first class in getting a better and fuller understanding of what was being approved. However—as the saying goes—I have some questions. I realise from being here this afternoon that there is a practice of giving notice of questions. I was not aware of that or I would have done so. There are no trick questions; they may come on other occasions but not this evening.

This order brings consistency to the situation vis-à-vis Scotland and its part of the United Kingdom, so it seems routine, but no legislation should be rushed because mistakes happen. It seems to me that the Government are in such a state with their legislative programme that there is a heavy element of rush in the preparation and submission of legislation, but perhaps not the delay of months and years referred to by the noble Lord, Lord Maclennan of Rogart. Nevertheless, mistakes happen, and it seems that we have had a conveyer belt this afternoon. If anyone cares to look, a Written Answer to the noble Lord, Lord Grocott, in last week’s Hansard illustrated the number of times that the Government have broken conventions in terms of time. There seems to be a bit of a rush. Although paragraph 8 of the Explanatory Notes refers to “UK Government Departments” being consulted, there was no consultation elsewhere. I should have thought that on the issue of adoption there could and should have been wider consultation with professionals in the field. I was formerly a councillor in Strathclyde Regional Council which had one of the best social work departments in the whole of Europe. Nevertheless mistakes were made and incidents happened. I should have thought that there could have been more consultation.

One of the curiosities is that on pages 14 and 17 of the order there are Welsh language extracts. Is it because that is how it is presented by the Welsh Assembly or has it been inserted by the Government here? It would seem that there is a gap when it comes to Scottish matters; Scottish Gaelic should have been incorporated there as well. I am not a fanatic about Gaelic, but it is a recognised second language in Scotland, and if it can be encouraged, it should be recognised. The order is almost entirely technical and has our support.

Turning to the criminal procedure order, I have had some advice from the Law Society of Scotland. David Mundell MP advised the other place:

“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”.—[Official Report, Commons, Delegated Legislation Committee, 6/7/11; col. 4.]

I have heard from one or two others, as well as the Law Society of Scotland, who seem to maintain that the extension of the detention period from six hours to 12 hours with the option of a further 12 hours is disproportionate. This extension was argued on a number of grounds, one of which was that additional time would be required to secure solicitor access. The Association of Chief Police Officers in Scotland published data last month which showed that 83.5 per cent of detentions are for six hours or less, 15.7 per cent are for more than six but less than 12 hours, and 0.8 per cent are for more than 12 hours. I ask the Minister to outline the consultation process that came up with this time and to say whether it matches anything else so that I can make some kind of a judgment about whether it is standard, justified or just plucked out of a hat. I do not think that it was: it would be wrong to say that. Nevertheless, in the interests of transparency, it would be useful to have a response on that.

Another part of the Law Society of Scotland’s briefing echoes much of what the noble Lord, Lord Maclennan of Rogart, said about remuneration and the difficulties for solicitors who get involved in this type of thing. However, I will leave the lawyers to cry on somebody else’s shoulder, not mine.

[Lord Wallace of Tankerness]

My Lords, first and foremost, I congratulate the noble Lord, Lord McAvoy, on his maiden speech from the Labour Front Bench. He distinguished previous Labour Governments, but in a non-speaking role as a Whip. I welcome him to his post, and I am sure that, as he says, there will be many future occasions when we will engage in debate. I also thank my noble friend Lord Maclennan of Rogart and the noble Lord, Lord McAvoy, for their general support for the orders and for the important questions they raised.

I will pick up some of the procedural points with regard to this order in relation to the 2007 Act. It has taken so long—it is four years since the passage of the Act—because the Act was not brought into effect for some time after it was passed by the Scottish Parliament. Looking at the order, we see the amount of work that has gone in to trying to make sure that all the different pieces of legislation which are covered by it have been brought together. I am aware that a considerable amount of work has been done on that.

In my opening remarks, I referred to a stop-gap, temporary measure that was passed using the negative procedure earlier this year. That is repealed by this order now that we have the full provisions in place. A considerable amount of work goes on between the lawyers in my department, the Office of the Advocate-General, and the Scottish Government legal department, looking at issues when legislation comes forward. There is also a programme of work on Scotland Act orders to identify priorities in co-ordination between the United Kingdom and Scottish Governments. Both Governments feed into that programme, which leads to the orders that we take forward. Indeed, I think this morning an order was debated in another place that we will have the pleasure of looking at when we return in the autumn.

With regard to the point made by the noble Lord, Lord McAvoy, about Wales, it is my understanding that under the Welsh Assembly, some legislation now is in the Welsh language. It is reflecting that provision from the Welsh National Assembly that these provisions are in this order in Welsh. I have no doubt that if, at some stage, the Scottish Parliament passes a measure in Gaelic—that is on the heading of the primary or secondary legislation—that, too, would find its way into our orders.

I hear the point about the consultation and the Law Society. It has been a matter of routine that the Scotland Office was not consulted on orders which have been taken under the Scotland Act 1998. The majority of them are consequential to legislation which has been passed by the Scottish Parliament. Of course, the 2007 Act was well consulted on, deliberated on and debated as it went through its procedures in the Scottish Parliament. Substantially, this order gives it effect in a number of different ways in relation to United Kingdom legislation, which it was not possible for the Scottish Parliament to do. But the policy matters which are at the core were dealt with by the Scottish Parliament when the Bill went through and became an Act.

On the criminal procedure, publicly funded legal systems will be made available. The 2010 Act includes provisions to amend the Legal Aid (Scotland) Act to confer an order-making power on Scottish Ministers to make legal advice available to any person detained under the amended detention provisions. In such circumstances they may provide without reference to Section 8 of the Legal Aid (Scotland) Act 1986, which sets out the financial eligibility criteria for advice and assistance. The aim of the order-making power is to ensure that financial eligibility requirements would not act as an impediment to the availability of legal advice as a fundamental requirement of the new procedures. It is very obvious that if someone is brought in for detention and needs immediate access to a solicitor, suddenly to start filling in forms could act as an impediment to what is being sought to be achieved. It was considered to be impractical for a solicitor to have to try accurately to verify a suspect’s financial circumstances while they were detained. Of course, there was a need to ensure that all suspects can obtain legal advice. The ongoing, continuing discussions on the detail of the agreement to be reached between Scottish Ministers and the United Kingdom Government—it was agreed in principle that it will happen with the detail—is still to be worked out. When it is concluded it will follow on to this order when it goes through.

My noble friend Lord Maclennan of Rogart and the noble Lord, Lord McAvoy, raised the period of detention. It is perhaps useful to remind ourselves that the 2010 legislation was emergency legislation in the Scottish Parliament—I think that it was passed in a day. Prior to introducing the emergency legislation in the Scottish Parliament, the Scottish Government consulted with a number of stakeholders, including the Law Society of Scotland, the Crown Office and Procurator Fiscal Service, the Association of Police Chief Officers in Scotland, the Scottish Police Services Authority, the Scottish Legal Aid Board and the Scottish Court Service.

In particular, the Scottish Government consulted with a number of these bodies in respect of the decision to extend the period for which suspects may be detained by the police. During the consultation, ACPOS, the Scottish Police Services Authority and the Crown Office and Procurator Fiscal Service considered that an extension of some form was required, although the Law Society considered that any extension should not feature in the emergency legislation. Instead, the Law Society argued that options for change should be considered by a judicially led expert review. This matter is being considered by the Carloway review but the Scottish Government took the view that they did not consider that waiting until such time as the review reports, and reforms coming from the review are passed into law, was a viable option when there was already evidence that the six-hour period of detention in some cases would be too short, particularly in complex cases where a solicitor had to be brought in and, therefore, that underlay the decision to extend the time period.

This order seeks to put in terms of reserve functions, the UKBA and Her Majesty’s Revenue and Customs in exactly the same position with regard to the provisions as is the case with Scottish police officers. The purpose of the order is consistency, which is why we have used and adopted the same time periods as there are for the Scottish police. It is important that there is one set of rules which apply to the questioning of suspects in Scotland. Indeed, it may well be a joint investigation with the police and it would become very complicated if one body was operating under a different set of rules from the other. At the end of the day, the one prosecuting authority—the Lord Advocate and the Procurator Fiscal—will lead and take forward the prosecution.

Fixed-term Parliaments Bill

Lord McAvoy Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Tyler]

I do not agree with the noble Lord. There are people who will always want to subject the decisions of a Prime Minister to judicial review. As I understand it from the legal advice that I have received, such applications are much more likely to be considered by a court and to take time. That is the situation described earlier in the Committee. I hope that everyone will accept that the certification by the Speaker is a parliamentary act, but the executive, political decision of a Prime Minister to say that he or she considers a particular Bill to be a matter of confidence is open to much greater interpretation by the courts.

The noble and learned Lord, Lord Falconer of Thoroton, quite rightly said earlier that we should avoid artificial certainty of definition. I fear that that is precisely what the distinguished authors of the amendment have produced. For example, how many parliamentary Questions would be tabled along the following lines: “Will the Prime Minister define the Miscellaneous Provisions Bill as essential to his continuing in office under Section 2(2)(b) of the Fixed-term Parliaments Act?”. Would the Prime Minister always say no? What would he say? There could be endless entertainment in the other place on this position.

I am sure that the amendment is well intentioned but it will take us down a dangerous route. I accept what the noble Lord, Lord Howarth, says about the subsequent decision of the Speaker following such a decision by the Prime Minister in an attempt to force a vote of confidence, but I still think that the amendment, with or without his subsequent amendment, is extremely damaging and potentially dangerous.

I noted what my noble and learned friend Lord Howe said about not being particularly enthusiastic about the amendment to which he had put his name, any more than he was about the Government’s position. I accept that there is some lack of enthusiasm for the amendment, even by its authors, but it is a dangerous route for us to take. It would be justiciable and challenged in the courts—and that would be extremely dangerous.

I and my colleagues have put forward an alternative which is a great deal simpler. It is that rather than trying to codify the status quo, as the amendment attempts to do, we should have one specific rule—that the Motion of no confidence should be tabled by the Leader of Her Majesty’s Opposition. It is difficult to think of any circumstance—even when the second and third parties are of comparable size—when the Leader of Her Majesty’s Opposition would not in practice have to table that Motion. It would be so firm and clear that it would ensure that Governments could not use such a vote as a way of cutting and running early. That is one of the key purposes of the Bill. The cut-and-run tendency is not good for the governance of our country, but we have seen it happen in the past.

The amendment undermines the purpose of and hollows out what is an already modest Bill. Some noble Lords on these Benches, and perhaps in other parts of the House, think that the fixed term should be even firmer than it is under the Bill—after all, it operates perfectly well in the United States. The Bill is already a compromise from that position; I suggest there is no need to compromise it further.

[Lord McAvoy]

The noble and learned Lord, Lord Howe of Aberavon, has described better than I ever could the Alice in Wonderland nature of the debate. I can understand my noble friend Lord Howarth of Newport picking credible holes in the amendment brought forward by the noble Lord, Lord Cormack, and it is certainly easy for the noble Lord, Lord Tyler, to do so.

We are holding this debate against a background of a Bill which is unnatural and is opposed by an overwhelming majority of Members of this House. A party which lost seats in the previous general election is blackmailing its partners in a coalition to accept constitutional change. We shall all end up being twisted and contorted by trying to take part in a debate on a Bill which is utterly flawed and goes against the natural flow of political events in this country. It is easy to criticise, but we are taking part in a debate on a Bill which is a strange and unnatural beast in British politics.

The noble Lord, Lord Cormack, has tried within the context of that debate to play the constructive, revising role that people in this House look for and to make the Bill better. I do not think that he supports the Fixed-term Parliaments Bill, but we have got it in front of us and it is what he is trying to improve.

Subsection (2) of the proposed new clause outlines the instances in which a vote of no confidence will be deemed to have been passed. They would amount to votes of confidence anyway. They are issues where, if a vote goes against the Government, Parliament is entitled to pass a vote of no confidence; that is the new world. Paragraph (b) states,

“denies a second or third reading to a Finance Bill”.

We all know that a Government need a Finance Bill to be passed. I take the point about a Prime Minister defining it, but that is his or her judgment as the Prime Minister of the country. Paragraphs (c) and (d) state,

“passes a motion of no confidence tabled by the leader of Her Majesty’s Opposition; or … defeats a motion of confidence tabled by the Prime Minister”.

The noble Lord, Lord Cormack, is using real life to bring forward instances which determine whether there is a general election in this country. I, too, was in another place at the time of Maastricht. It is not the first time that people have combined in quite such dishonourable—in some ways—alliances.

I presume that the noble Lord, Lord Tyler, supported the 14-day provision. I think that the noble Lord, Lord Cormack—I had better not call him my noble friend for the purpose of this debate—was paying me compliments in talking about black arts and sinister persuasions. That 14 days would allow all sorts of things to take place. There would definitely be no physical violence, but imagine the sheer pressure that you can generate by being able to say to somebody that you hold in your hand the power to determine whether, in my case, a Labour Government fall, or a Conservative Government, in the case of other people.

This is really nonsense, but we are all being forced to discuss it because we are being led by the nose—I hesitate to say anything that would upset or insult noble Lords on the Conservative Benches—by a comparatively small group of people, the Liberal group, who are hell bent on changing the constitution of this country. They are tinkering with it and coming up with all sorts of ill thought-out, ill advised and quite nonsensical proposals. In the likes of the noble Lords, Lord Norton of Louth and Lord Cormack, and my noble friend Lord Grocott, we have people here who are prepared to listen to ideas for change but to take the best of this place to keep it going. We are in an unnatural situation where we are all discussing something which we know is not right and not practical.

I was particularly struck by a phrase used by the noble Lord, Lord Cormack, which was that he was trying to get a comprehensible Bill. That sounds to me like common sense. As long as we are forced to discuss a Bill such as this, we will all come forward with positions that we do not really believe in or like in a vain attempt to make a better Bill. We know full well in our heart of hearts that a majority of people in this House know that the Bill is nonsense; but as long as we are prepared to discuss in an Alice in Wonderland way, we can pick holes in reasonable suggestions.

[Lord Martin of Springburn]

I am very interested in the amendment and agree a great deal with the noble Lords, Lord Cormack and Lord Armstrong, and the noble and learned Lord, Lord Howe. A common argument put here is that we did not need a Fixed-term Parliaments Bill. I come from engineering. My foreman used to say, “Michael, if it works, do not fix it; do not touch it”. There is nothing to stop the present Administration, the alliance, going for five years if they want to; but, as others have said, we are past that point now. I remember when the Labour Party decided that it would have mandatory reselection of MPs and that was made part of its constitution. We were warned that if you kick a ball into the constitution park, it can roll in many ways. That is what we are seeing here, when we do not need a change. Now people are attempting to fix it by ensuring that the legislation is watertight.

On the idea of a Speaker signing a certificate, the fact is that every decision of the House of Commons is then put in the Journal of the House. There is a dedicated Clerk to the Journal who makes sure that the Journal records the decisions of the other place and of this place. Perhaps the legislation should have a mechanism whereby someone would be presented with the Journal, which, as the noble Lord, Lord Forsyth, said, stated that a decision had been made by a two-thirds majority or that a vote of no confidence had been carried.

I think that it is on the steps of the Mansion House that someone comes out to say, “Hear ye, hear ye, hear ye”—there is going to be a general election. There is a delay while it goes up to Edinburgh because in the old days, someone went by horse and the announcement was made in Edinburgh a bit later—a lovely tradition. If I had my way, I would rather that that certificate did not have to be issued by the Speaker. It is different with Money Resolutions and other matters that the Speaker has to deal with.

I would rather that the provision be left out; if it is to be left in, I would rather that subsections (2)(a) and (b) be left out, because, as the noble Lord, Lord Cormack, said, what would happen if the gracious Speech was defeated and negated by a brand-new Government elected by the people? It would be hard for people to understand and very difficult for a Speaker to sign off a certificate in those circumstances. But what would happen if he or she denied the certificate? An element in the country would say, “Oh no, you have it in legislation. Sort that out”. I certainly would be uncomfortable. I agree with the noble Lord, Lord Tyler, that paragraph (b) is open to interpretation. For a Prime Minister to say, “Get this through or it is a vote of confidence in me”, is not the way things should go. However, a Speaker would be in a difficult position.

I mentioned earlier about the pressures on modern Speakers. I used to read some of the lovely stories in the beautiful books in Speaker’s House telling us what previous Speakers had to worry about. In one case, the Speaker had to worry about the price of coal being delivered to Speaker’s House. That was a big worry, and I wish I had had that worry. In the old days, perhaps in Edwardian times, the Speaker stayed in the big house, and would then go to his constituency or a place in the country. No one would bother him. Even if people wanted to apply pressure on him outside parliamentary hours, there was not the modern technology that we have just now. Nowadays, there is texting, e-mails and the mobile phone. As a result, I can envisage a situation in which, even if the period in which a Speaker had to sign this certificate was only 48 hours, he would be pursued and the pressures that would be put on him would be enormous. Forgive me, this applies also to lady Speakers.

The black arts of the Whip have been mentioned, and there are many black arts. There is the direct approach, when the Chief Whip comes in and gives the Speaker the rough edge of their tongue; or there is a more subtle way, when the pal of the Speaker is used. Bear in mind that the Speaker is elected from the ranks of the House of Commons, and he has friends. The pal is sent up and says, “You know, Michael, everyone in the Tea Room is worried”; but it is not everyone in the Tea Room who is worried—the Whips sent him. You get the friendly approach and then the Gypsy warnings, and so on.

There is another thing that we have to remember in these modern times—the 24/7 media. I mentioned the Edwardian Speaker who went away to the countryside. When I got to my home at weekends, if there was anything controversial going on, there were people at my door from the media, and they were not very nice at all. In fact, it is rule and convention of the House that the Speaker does not make statements anywhere other than in Parliament. A spokesman phoned me and said, “If you do not give a statement, this newspaper will doorstep you”. I said, “ I am bound by the rules of the House”. While I was speaking to that spokesman at 9 am on a Saturday, two reporters from a Sunday newspaper were outside in a car. The caller said, “I will phone the editor back and say that you are not going to speak”. One of the two reporters went to the side door of my home and the other went to the front door and battered it so hard. That is not a decent way to carry on. Had I or any of my family been in bed at the time, I would have thought that there was something very serious going on. I would have rushed to the door, opened it and been confronted by a newspaper editor.

I tell you that the pressures are tremendous. There is worry in every city about housebreaking. I even had a situation when a clown was outside my door—I describe him as a clown, although he called himself a journalist—from Sky TV, using big satellite television equipment. There he was, outside the house while I was in London. He said, “We cannot get him; the house is empty”. Anyone who is involved in security will tell you not to advertise that you are away from home, but here was somebody broadcasting live television, saying that my house was empty. That is the type of pressure I am talking about.

Something else must also be remembered. I was appalled when I heard that the Prime Minister of the day had a spin doctor whose only job—he had other spin doctors—was to put out negative stories about people in other parties and anyone else who was felt to be a danger to the Prime Minister. I do not wish to use the privilege of this House to mention his name. That person was sacked. It was public knowledge that he was putting out nasty, negative stories about members of the shadow Cabinet and their families. It absolutely horrifies me that the public purse was paying for this man and that the Prime Minister of the day was willing to employ him. Despite all my differences of agreement with Margaret Thatcher, I do not think she would have employed someone like that. Jim Callaghan would not have employed someone like that, and Ted Heath would certainly not have employed someone like that. That spin doctor was not the only one putting out negative stories, but he was paid by the Prime Minister of the day. If the Speaker of the House was going to do something that the Prime Minister was not happy about, there would be tough pressure on him with these people around.

We must also consider the public. We represent the people of this country. We must make sure that, if there is a vote of no confidence, the people understand what is happening. We are the anoraks of politics: we live and breathe politics; we look at politics in our spare time. However, there are other men and women who say, “We’ll leave that to the politicians”, although they want to know what is going on. They would not necessarily understand A and B.

Fixed-term Parliaments Bill

Lord McAvoy Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Cormack]

My Lords, briefly, I agree with what the noble Lord, Lord Grocott, said. I very much hope that my noble and learned friend will be positive in response. There is nothing that we can do about this extended Session. It will last until May next year. I regret that. Sessions should last as near as possible for a year, and if we are to move to fixed-term Parliaments, the obvious thing is to have the state opening for each Session in the May of each year. I hope that my noble and learned friend will give me some comfort when he responds.

[Lord McAvoy]

My Lords, I rise briefly in support of the principle in my noble friend’s amendment, because it would bring a discipline into what has happened ever since this Government took power, which has been the continual tampering with the constitution for petty party-political advantage. That is a fact of life. I do not like to be provocative, but I am trying to find the words that would best describe this matter. I have mulled over words such as “sleazy”, but if I continued, my words would probably be unparliamentary, and I would not wish to be responsible for any more damage to the office furniture. However, as a former business manager in the Commons, I consider that we are dealing with a completely foolhardy approach to the constitution. We have conventions here, but ever since the advent of this coalition, particularly for the party advantage of one of the partners in the coalition, the majority party opposite is being driven along to stay in power. Precedents are being set that are damaging to the conventions of this House, the other House and the constitution. I appeal to Conservative Members of the coalition, such as the noble Lord, Lord Cormack, whose comments are welcome, that it is past the time that they should put a stop to the roughshod treatment of the constitution.

[Lord Falconer of Thoroton]

My Lords, I support what my noble friend Lord McAvoy said; I support the amendment of my noble friend Lord Grocott; and I support the approach taken by the noble Lord, Lord Cormack. It is worrying when everyone who knows anything about this says—and I do not include myself; I refer to three distinguished ex-Members of the other place—that the effect of there being no control over the Government on how long a Session lasts means that they can play fast and loose with however long it takes them to get the legislation that they want through Parliament. That weakens the power of Parliament. A lot of the constitutional rhetoric of this Government was on strengthening the power of Parliament.

I wish to ask a specific question, because it would appear that the Government understood this position on 25 May 2010, when the Deputy Leader of the House of Commons said in relation to the Bill:

“There is a strong case for pre-legislative scrutiny, but I do not want to extend the consideration of this legislation into the following Session, because that would not be appropriate”.—[Official Report, Commons, 25/4/10; col. 152.]

He understood the importance of Sessions. He said that on 25 May 2010. Happily for him, on 13 September 2010, the Session was then extended until May 2012, thereby getting rid of the one problem that stood in the way of pre-legislative scrutiny. Can the noble and learned Lord specifically answer as to why the Deputy Leader of the House broke that promise? “Promise” may be overstating it. Perhaps the noble and learned Lord should characterise what the Deputy Leader meant. Was it wild musing as to what might happen? Why did he not go ahead with what he had said?

Fixed-term Parliaments Bill

Lord McAvoy Excerpts

Tuesday 1st March 2011 Lords Chamber

[Lord McAvoy]

My Lords, I will bear in mind the time and the fact that many more experienced colleagues than me have spoken. First, I join the massed ranks of those welcoming the noble Lord, Lord Cormack, to our midst. I, too, have happy and sound memories of him in another place and I am quite sure that over the next months and years, there will be at least one or two causes that we will be completely united on.

I want to take head-on the point made by noble Peers, but particularly by the noble Lord, Lord Norton of Louth, that the Labour Party had fixed-term Parliaments in its manifesto. I think that we had that in 1992, but I was a bit closer in 2010 to the formulation of the general election strategy, policy and manifesto issues. I remember that from right back to 1992 and right up to 2010, there was always the spoken assumption that there would be pre-legislative scrutiny and a full process of Green Papers, White Papers and draft Bills. That was always inherent in it, so I do not think that we have anything to hide in indicating that the Labour Party followed that. I think that the noble Lord, Lord Dobbs, might be being a bit optimistic in thinking that he will get some leeway from the Front Bench. After having endured 17 days of valid points from all corners of this House, we achieved absolutely nothing. If the noble Lord wants something, he will need to speak to Mr Clegg and get his permission.

Once again, what we have here is an abuse of the House of Lords. We have a constitutional Bill being rammed through this place without a single jot of notice being given to its conventions. I am well aware—because I was told often enough—that the new incomers from the other place over the past year or so breached the conventions of this place. There is some justification in that charge but, in answer to it, the circumstances must be borne in mind. The Government had thrown away all the conventions. The anger felt at that was certainly reflected on these Benches. I have learnt not to be too robust in this place, but it is a bit of a cheek for people to complain about others breaching conventions when they have provoked the anger. That is a fact of life. There are supposed to be 14 days between Committee stage and Report stage; with the Parliamentary Voting System and Constituencies Bill we got a day’s notice. I do not want to go over old ground. I am just making the point that this Bill must be seen in that context.

What we see here is the Liberal party’s obsession with tinkering with the constitution and coming up with systems, rather than democracy and paying attention to the true needs of people. Take the record of the Liberal party every time it is put in a position where it can gain something for itself. I go back to the formulation of the Scottish devolution policy between the Labour Party, the Liberal party and other parties in Scotland, except the Conservatives and the SNP. It was crucial that we got consensus at that time, and crucial that we got the Liberals on side. We got them on side but at the price of giving two seats—that is, preferential treatment—to Orkney and Shetland. That was the first instance that I saw of the Liberals using a position for their own political gain.

There was then the situation where Mr Clegg was in a position where he could blackmail another party when two parties were bidding for him to form a coalition. What does he get out of it? He gets out of it constitutional matters—the greatest reform since 1832. He says that it will be a “big bang” for the constitution that has served this country well for hundreds of years—all driven by the Liberals. When they get into a position where they can control and blackmail other parties, they use it to the full. Folk should be aware of that. The be all and end all of this is that if they get AV—God forbid that they should win—we will have maybe not Mr Clegg but a Liberal as Deputy Prime Minister. Where is the democracy there? Where is the paying heed to people and making sure that there is democracy?

Speaking as a reasonably active former Whip, I would have loved to have 14 days to deal with a government defeat and fix the situation. By rights, the Government should resign after being defeated, especially on an important matter. My noble friend Lady Taylor is a former government Chief Whip in the Commons; I served many years with her. We are talking about 14 days to fix something and do all sorts of things—all in a persuasive and kindly way, naturally—to make sure that the will of the House of Commons is defeated. It is absolutely wrong that we are under this pressure and that this priority is being given to tinkering with the constitution when it has served us well.

The noble Baroness, Lady Stowell of Beeston, was, I think, the only one from the Conservative side who gave unconditional support to the Bill. Having persuaded many a colleague to speak in the House of Commons in particular situations, I recognise a press-ganged Member when I see one. I mean no disrespect to the noble Baroness but I certainly recognise the symptoms.

The noble Lords, Lord Grocott and Lord Norton of Louth, made unanswerable cases. One of them was perhaps political but the other constituted an absolutely clinical, methodical and systematic dismantling of the Bill. I offer a word of warning to Conservative colleagues who may think that they can pay the blackmailer once and he or she will go away. However, I assure them that they will return again and again until their party is absolutely demolished.

Parliamentary Voting System and Constituencies Bill

Lord McAvoy Excerpts

Wednesday 2nd February 2011 Lords Chamber

[Lord Campbell-Savours]

I wonder whether the noble and learned Lord can answer a few questions on Schedule 5, which refers to combined polls and states:

“The cost of taking the combined polls (excluding any cost solely attributable to the referendum or to a particular relevant election), and any cost attributable to their combination, is to be apportioned equally among them”.

I presume that means among the authorities concerned, but perhaps the noble and learned Lord can tell us exactly what it means in these circumstances. If it is a question of apportionment and different sources of money are to pick up bills, I presume that there is an apportionment procedure. Can he explain what that procedure is and could it lead to dispute? If local authorities are contributing to the pot, disputes may well be possible. The 1983 Act may well make provision for that, but I have not been able to find specific reference to apportionment in this context.

In Schedule 5, on page 141, there is reference to ballot boxes under paragraph 18, which states:

“If the counting officer thinks fit, the same ballot box may be used at the polls for the referendum and the relevant elections”.

In other words, we will have a combined ballot box in certain polling stations receiving both referendum votes and other votes. There may well be circumstances in the local authority where some might argue, for whatever reason, that they want that because of its implications for the arrangements in the counting stations.

One would have thought that it is better to have two boxes separated in advance as against placing the responsibility on the counters in the counting stations to divide the ballot papers themselves. Are the Government prepared to issue guidance on whether they would prefer that a particular approach was adopted, as against giving the counting officer responsibility in his or her discretion to decide whether he or she feels that there should be a single box or two boxes to collect the votes?

Finally, on the same page, the title of paragraph 21 states:

“Guidance to be exhibited inside and outside polling stations”.

I raised that issue during our debates last night. The question remains unanswered. Paragraph 21 states:

“A notice in the form set out in Form 5 in Part 3 of this schedule, giving directions for the guidance of voters in voting, must be printed in conspicuous characters and exhibited inside and outside every polling station”.

What I was on about last night, and I repeat my concerns today, is what happens if those who are rather keen on securing a particular result decide to drive a huge 40-footer artic truck with big signs saying, “Vote yes for AV”, or otherwise, and park it right outside the polling station door? In general election campaigns, people plaster candidates’ names on huge hoardings of that nature which are mobile, but I wondered whether on this occasion, because of the highly controversial nature of the question being asked in the referendum, there might be those who decided to conduct their campaign by using those mobile hoardings. Is there not a need to issue some guidance to polling clerks? Clearly, they would have to be subject to the law as to what they should do in such circumstances.

[Lord McAvoy]

My Lords, I return briefly to an area that I mentioned last night on which I did not get a response from the noble Lord, Lord Strathclyde. I accept that I raised what was probably a unique set of circumstances and I would not expect the Minister to have an answer at his fingertips. I could go through the detail again, but in the spirit of the understanding that we have, I will say only that it is about the definition of the area of control under the authority of the presiding officer. At page 137, the Bill states:

“A relevant officer is … in the case of proceedings at a polling station, the presiding officer”.

My point is similar but not identical to that made by my noble friend Lord Campbell-Savours about the definition of the area of control if activity is taking place, such as voters being approached as they head towards the polling station. At one of the polling stations with which I was involved, the presiding officer and the police had genuine uncertainty and doubt about getting involved in that. If there is activity like that, which is not desirable, although I am not sure about whether it is illegal, or if a complaint is made, does the presiding officer have any authority over it?

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[Lord Grocott]

My Lords, it often happens that you can see something in a schedule that raises quite an important more general point. I am referring to the cost of the combined polls, which is on page 137 in Schedule 5. It says quite simply, and I am sure that voters would regard this as common sense, that when two or three elections are taking place in the same area at the same time you divvy up the cost of delivering that election between them. I ask myself whether that is the building block that has resulted in the calculation that the Government have made, a very important calculation, about the cost of the referendum and, more importantly, the saving to national funds from holding the referendum, with all the difficulties that entails, which we acknowledge to be not insurmountable, on the same day as a number of elections in a number of different places.



Unfortunately, I have not brought my precise note, but I am sure that the noble and learned Lord, Lord Wallace, has these details engraved on his mind. The Government and the Deputy Prime Minister have repeatedly told us a precise figure—from memory I think that it is £35 million but I stand to be corrected—which will be saved by holding the referendum on the same day as a number of local elections. I have always thought that using the word “saved” there makes about as much sense as saying that you buy a fridge for £150 in a sale, as opposed to paying £200, and that therefore you have saved money. You would save a lot more if you did not buy the fridge and we would certainly save a lot more if we did not hold a referendum. Sadly, that argument has now passed.

Clause 7 sets out the complexity of the way in which the referendum will be counted and the voting areas. I will not list them all, but they range from,

“a district in England … a county in England in which there are no districts with councils … a London borough … the City of London”,

et cetera. I want to ask a straight, factual question. How have the Government calculated what the saving will be to the Exchequer from holding the referendum on the same day as these other elections? As to the “cost of combined polls” under Schedule 5, page 137, the Government have obviously attributed to the referendum the whole cost of those areas where there are no local elections, which I suppose is intelligible enough, and I assume that they have divvied up—I may be making huge assumptions here—the proportionate cost of the referendum in those districts where other elections are taking place.

Most of all, I have always been wary about the glib statistic of how much is being saved by holding the referendum on the same day. If that is the building block of this calculation, which presumably somewhere along the line it must be—that is, the cost of combined polls—I would ask the noble and learned Lord, Lord Wallace, to give us a note on whether the calculation is built on these individual bricks. I rather fear that it might be a construction built on sand. But at least I should like to know the calculations that have led to this alleged saving.

[Lord McAvoy]

My Lords, once again, interventions made by the noble Lord, Lord Tyler, seek only to extend the time being spent on this Bill. Time after time, the noble Lord questions the integrity of the scrutiny that we are having here. In the brief time in which I have been in the Chamber, this scrutiny is well within the spirit of the understanding that I believe we have. The questioning of integrity does not help matters. I would ask the noble and learned Lord to bear in mind that, as far as I am aware, the noble Lord, Lord Tyler, does not have a clue because he was not present during the Scottish elections of 2007. Any comments he has about that should be discounted.

Parliamentary Voting System and Constituencies Bill

Lord McAvoy Excerpts

Tuesday 1st February 2011 Lords Chamber

[Lord McAvoy]

My Lords, I will speak briefly in support of my noble friend’s Amendment 112C. There are two types of people in particular that this amendment would help. There is still what is called a three-shift pattern in factories and elsewhere of 6 am to 2 pm, 2 pm to 10 pm, which is known as a back shift, and 10 pm to 6 am on a night shift. I worked that pattern myself for many years. The 6-to-2 shift sounds great—you get into work at 6 am, finish at 2 pm and have the rest of the day to yourself. Unfortunately, most people who have worked that shift will tell you that they spend most of the afternoon lying asleep on the couch, trying to catch up with the disruption to the normal sleep pattern and normal shift pattern. You can wake up feeling disorientated at times. It may sound a bit silly but I can assure people that the disruption to your normal pattern, in working that three-shift pattern, can have that effect on you.

There is also the back shift between 2 pm and 10 pm. It sounds great—you can get up in the morning and have time to do plenty of things before you start work at two o’clock. But you can have quite an extended travel time to get to work for 2 pm and, with other things to do in the morning, you may find that by the time you finish work at 10 pm the polling station is closed. As for the people who do the night shift, again it sounds great, as you have plenty of time during the day, but ask anyone who works the night shift and they will tell you that their day is disrupted. If there is a constantly changing shift pattern, working a different shift each week following the 6-to-2, 2-to-10 and 10-to-6 three-shift pattern, I can assure your Lordships that there is a disruption to the patterns of sleep and behaviour.

The second category is a new and developing pattern to which my noble friend Lord Foulkes of Cumnock has referred. This is the growing number of people who manage two jobs, particularly women. It always seems to be women who get landed with the part-time jobs, though they are not quite cheap labour thanks to the Labour Government’s national minimum wage law that was opposed by the Liberals and Tories at the time. Nevertheless, these people are trying to keep two jobs going and are rushing between them. An extra hour’s voting time at the end of the day will give people an extended opportunity to vote.

I believe that that category of part-time workers is growing. Again, I do not like it but they are mostly women workers because they have got to snatch a job of two or three hours to cope with child care and all the rest of it. They have to dive back, run a house, and probably get their man fed and out to work. There are some areas in the world where women still do not have a proper place in life. Keeping family together falls harder on women than on men, and I regret to say that a sexist society still operates like that. I would certainly support anything that can help women and part-time workers in that category. I would indicate my strong support particularly for Amendment 112C.

[Lord Falconer of Thoroton]

My noble friend Lord Rooker has Amendment 113 in this group, but he has had to leave. It is effectively the same as the amendment tabled by my noble friend Lord Foulkes in that it proposes that the polls should shut at 11 pm. The point has already been made but it seems a good thing that the time should be extended for people to vote. There may be reasons why that is a bad thing. I will wait to hear what the Minister says.

The next group of amendments, which would have been moved by my noble friend Lord Rooker, but which I will move because he cannot be here, seek to deal with the overcrowded polling stations issue, which we have already discussed and in which there was an impressive intervention by the noble and learned Lord, Lord Mackay of Clashfern. There was quite broad support for the amendment tabled by the noble Lord, Lord Phillips. The amendment that proposes that the polls should shut at 11 pm, as opposed to 10 pm, might, subject to the information that the Minister has, be of assistance in relation to that. If the number of people who would vote between 10 pm and 11 pm was quite low—even though there might be a late surge—it would reduce the likelihood of what happened in the previous general election happening again. It might, for that additional reason, be worth contemplating.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I find that a very helpful reply. The Minister has explained and answered the points raised very well. We could have altered the hours for all the elections as well as the referendum if we had had more time but we are rushed in this and must do everything by 5 May. That is part of the problem. However, given that we cannot change the time for elections, it would be right—

[Lord McAvoy]

I accept what my noble friend says about the Minister’s reply, but is there some way, through the amendment, the schedule or elsewhere, to initiate a pilot project somewhere, or at some point in another election? That would test those hours. I am particularly interested in Amendment 112C. Could we look at the possibility of some kind of pilot in an election in a selected area to see if it made any difference?

--- Later in debate ---

[Lord Bach]

My Lords, I speak on behalf of my noble friend Lord Rooker. This small amendment refers to the sealing of ballot boxes before the commencement of the poll, as provided for in the rules for conduct of the referendum given in Schedule 2 to the Bill. The schedule currently advises that the presiding officer must show “anyone present” in the polling station immediately before the commencement of the poll that the ballot box is empty. My noble friend's argument—we do not make too much of this or say that it is a major issue—is that this should be changed to require the presiding officer to show “the first elector” who comes to vote in that polling station that the ballot box is empty.

We believe that the amendment would add a degree of precision to the requirement on the presiding officer and add to confidence in the legitimacy and validity of the poll and its result. Being more specific about who is to see and verify that the ballot box is empty is a small but important symbol that the poll is to be carried out properly. It is too vague to say “anyone present”. That could be the cleaner or the person who is with the presiding officer to help with the running of the poll. Why not require that the first elector who comes through the door should see that the ballot box is empty before casting their vote, which would be the first one in the box? As I said, this is not a major amendment, but I think that it deserves an answer. I beg to move.

[Lord McAvoy]

My Lords, I rise briefly to support the amendment, on which I will enlarge just a bit. We have good traditions and symbolism in British democracy. I have been an election agent and a candidate. I thought that it was the law that either the agent or candidate could see inside each ballot box before it was locked. That happened regularly. Perhaps it was only in council elections—I am not sure, but I used to see it quite often. I agree very strongly with entrenching the symbolism so that it is not just anyone who sees that part of the procedure. Perhaps we could embellish our democracy a bit by making a bit of a tradition and a bit of a show, to get people there and show that the box is indeed empty. While folk may scorn that type of thing, nevertheless it would show clearly the symbolism that our democracy is vibrant and seen to be so.

--- Later in debate ---

[Lord Myners]

My Lords, I speak in support of Amendment 122. I think that it is a small but important step; in fact, I would like to see us go further. It is absolutely critical that we take every action within reasonable grasp to protect and enhance the integrity of the voting system, which has been brought into disrepute in recent years.

I think particularly of the comments by the noble Baroness, Lady Warsi, about ballots that she believed had been in contravention of correct process. I acknowledge that at times it is difficult to tell whether the noble Baroness is speaking on behalf of the Government, the coalition, the Conservative Party or a faction within the Conservative Party. For example, I think of her comments immediately after the Oldham East and Saddleworth by-election about the right wing of the Conservative Party. I also think of her comments the previous night on BBC2’s “Newsnight” programme in connection with the Royal Bank of Scotland—I regret I was unable to be in the House this afternoon when this matter was handled in Questions—when the noble Baroness said that the Government were renegotiating contracts with executives of RBS. Since then, the Treasury has been very keen to suggest that it is not doing anything of the sort. However, the comments made by the noble Baroness on electoral issues were ones that we should take careful note of when considering this amendment.

I would actually prefer a change in the design of the ballot box. I would like to see ballot boxes that are transparent, so that it is possible for people to see their vote going into the box. The amendment deals with the authenticity and the integrity of the ballot process only at the time when the first decision is made on a vote, but I think that my proposal would bring huge confidence.

[Lord McAvoy]

My first reaction is that a transparent ballot box could add to democracy and could be useful. On the other hand, when thinking of the mechanics of polling day, one has to consider that sometimes people do not fold the ballot paper properly and if that happened in a transparent box it would show who the person had voted for, or did not vote for, which would render the vote invalid because someone was able to identify it.

--- Later in debate ---

[Lord Tyler]

This is precisely what the noble Baroness was obviously trying to obviate just now. There has not been a single amendment making any changes to Schedule 2, precisely because Schedule 2 as it stands is a distillation of the experience that we have all had. She may be quite right that we need to look at some of these issues. However, not a single amendment has been suggested by noble Lords opposite on this. That suggests that this is the present situation, taking account of the new circumstances of this event. I frankly find it quite extraordinary, in the light of the undertaking given by the noble and learned Lord, Lord Falconer of Thoroton, yesterday that we were going to make rapid and sensible progress, that the last 19—before I spoke, 18—minutes seems to have been an attempt just to elongate the evening’s proceedings. That is very unfortunate.

[Lord McAvoy]

My Lords, I normally like to say that it gives me great pleasure to follow a noble Lord, but I am afraid I cannot in these circumstances. It always seems to happen in these deliberations of ours. There is not much toing and froing but there is certainly plenty of toing on our side to try and subject this Bill to scrutiny; and time after time the noble Lord, Lord Tyler, injects a note of acrimony into the proceedings. It really is quite unfortunate that should happen, because we are having a reasonable approach here, fully in line with the commitments.

I am particularly interested in paragraphs 13 and 14 of Schedule 2 on the provision of polling stations. Paragraph 14 says:

“The counting officer must appoint and pay—

(a) a presiding officer to attend at each polling station”.

I find these people very good, on top of their job and they know what they are doing, but occasionally something happens which is not clear. I am seeking clarification from the noble Lord the Leader of the House, if he is able to give that clarification; if not, perhaps he could point me in the direction where I can get it.

I am trying to find out the power of presiding officers and the extent of their power. Is it confined entirely within the polling station, or does it extend outside? The example I am going to give is relevant to polling stations and I will explain briefly the point on which I seek clarification. In a local election in 2007 in my former constituency, there was a bit of local rivalry—acrimony, even. An independent candidate was standing. Voting was by the PR system, which guaranteed chaos anyway, and there was further chaos because in an area about 50 feet from the polling station entrance the independent candidate had arrayed about six people in a sort of semi-circle. They were stopping people at that distance from the polling station and inquiring as to how they were going to vote and putting pressure on them.

Folk who are going to the polling station do not like being stopped and questioned. It is bad enough trying to shove a leaflet into their hands—we have all tried that, I think—when you have spent six weeks pushing the candidate’s name through the letterboxes everyday. People were being approached and they did not like it. Intimidation is the wrong word to describe what was happening, but nevertheless there was pressure. I spoke to the police on the door. Come election time, people have such respect for our democratic process here in Britain that they are very reluctant to get involved in anything that they have not had experience of before, or they do not have written guidance on. I then spoke to the presiding officer. It might not have been as bad as saying that people had been hindered going to vote, but it was not far from it. Presiding officers are good people—they have the best of intentions—but they are quite unsure. This went on for several hours and if he had remonstrated there could have been an unpleasant scene.

I am looking for guidance from the noble Lord the Leader of the House, if he can give it, as to what geographical area a presiding officer has control over outside the polling station. Is it entirely a matter for the police? How should it be handled? I find that contention at polling stations is getting more intense. Sometimes, unfortunately, it is between the political parties, especially in certain hard fought areas. Who exactly, or what procedure, is written in the Bill that would cover the ceasing of such behaviour, and if so what would be the proper channels to put a stop to it?

[Lord Maxton]

My Lords, it was not my intention to speak. Members opposite will know I have not spoken that often during these long debates. However, the noble Lord, Lord Tyler, rather than trying to calm things down, actually provokes people into speaking and that is the case in this instance. I just say to my noble friend Lord Myners that the noble Lord, Lord Strathclyde, may travel in a big limousine, but I travelled on a No. 3 bus with the noble and learned Lord, Lord Wallace of Tankerness, this morning. He does not travel in a big limo.

At the start of this debate, my noble friend Lord Campbell-Savours made a point about the position and number of polling stations, not just in rural areas—which my noble friend Lord Myners raised—but also in urban areas. I remember particularly at one point during my career as a Member of Parliament in Glasgow Cathcart, the local government boundaries were redrawn. One of them went down the middle of Mount Florida, so one side of the road was one local government seat, and on the other side was the other. On one side of the road in that new local government seat, there were two multi-storey blocks of flats. On the other side was the polling station for the road, in the school where those people had gone to vote for all the time that they had been in those flats. Now they were being told to go and vote half a mile or a mile away.

--- Later in debate ---

Debate on whether Schedule 3, as amended, should be agreed.

[Lord McAvoy]

My Lords, I have a brief question for the Leader of the House. I am sorry that he did not respond to the point that I made in an earlier debate. I know that perhaps he did not have the information to hand, but I thought that he might be able to offer me some guidance. My question is about paragraph 4(1), which states:

“Where a person applies to the registration officer to vote by post in the referendum, the registration officer must grant the application if … the officer is satisfied that the applicant is or will be registered in a relevant register”.

I am not sure what that means. How would the registration officer forecast or be aware that the person concerned is registered in a relevant register?

[Lord Strathclyde]

My Lords, perhaps I could follow that up in a letter to the noble Lord.

Parliamentary Voting System and Constituencies Bill

Lord McAvoy Excerpts

Monday 31st January 2011 Lords Chamber

[Lord Rooker]

My Lords, the only way in which the noble Lord, Lord Lipsey, could correctly say that his amendment is a common-sense proposition is if it suggested a six-month period. The provisions of the amendment are not compatible with a 5 May date: we do not need to look at our diaries to ascertain that. However, I agreed entirely with the rest of his speech. There is not enough time to do the job properly. There never was, in my view. As the noble Lord, Lord Campbell-Savours, said, this is a fundamental matter. The Liberal Democrats also know my position. They know that I support electoral reform and I want PR, but this is a dishonest form of AV. In my view, it is a corrupt form of voting. The coalition has chosen the date to match the election date. That is fine; that is the coalition’s responsibility. I am quite happy with that. I do not have a view whether it should be held on that or another day, but the Lib Dems will be severely punished for holding the referendum on 5 May for lots of other reasons. I think that it will be lost. However, it is sad to have a referendum on the major constitutional issue of our voting system—we have never had such a referendum—and to lose it due to insufficient time being given to the process.

I do not want to labour the point but one has only to look at what happened in New Zealand and read the information that was published by the New Zealand electoral commission that went out to individuals. I cannot envisage anything remotely like that being provided here in terms of quality and quantity, and then being taken on board by the electorate. Our Electoral Commission might push out a lot of leaflets but pamphlets and booklets are needed rather than leaflets. This matter goes well beyond two sides of A4. The information must be assimilated and debated if it is to be successful. The assessment was that 10 weeks were needed, which is how we have the date that we have, which was debated in this House back in December. We knew that the Bill needed to get Royal Assent before the recess in February. The assessment was that it could be done in 10 weeks. Mechanically, it can be done. Intellectually and educationally, I do not think that it can be done. That is what I think is wrong with my noble friend’s amendment. It should have been six months, but that is the Government’s responsibility. They have rushed this Bill. There was no need to rush it within a year of the general election. It could still have been done on the election date. I appreciate that the devolved elections come only once every four years, and if that is the key test that more people go out to vote, so be it. However, I just do not think that it can be done in the way that hearts and minds can be won. We will get a poor result. I think it will fail, but it will be for the wrong reasons. I wish it were for the right reasons. I will not support it; I will campaign against it, but I would rather that it failed for the right reasons. I would rather that there were a genuine debate about the real issues; but I do not think that it can be done in the time available.

[Lord McAvoy]

My Lords, three of my noble friends who support proportional representation have spoken, so it is only fair that the first past the post majority viewpoint of the Labour Party is heard. From my noble friends—who are friends as well as noble friends—what we have here is excuse-gathering. It is always “if only” this had happened or that had happened, people would flock to the banner of PR. People are not interested. In the main, people are quite happy with first past the post because of all its benefits, which have been discussed many times before and I do not intend to go into them. There is always an excuse from the people who support PR that people do not understand it and there is also the deception that people have not been educated about it. Pro-PR people really do not take any account of how they sound. They sound arrogant saying, “If only people were educated, they would learn the error of their ways and flock to the banner of proportional representation”. It is not true.

I will not spend more time speaking about this, but I intend to clear up something, although sometimes it is like a bingo hall in here when you get the clickety-click of the little clicker of the noble Lord, Lord Rennard, as he counts the number of times people have contributed. That is fair game. However, I would like to point out something to him. In the context of this, he is either completely unaware of or not interested in studying the way in which the other place operates, or he is quite content to spread misconceptions. I understand from my noble friend that a misconception has spread among the Liberal Democrats. The blog of the noble Lord, Lord Rennard, says that Tommy McAvoy—it is quite insulting, actually— “muttered just four words” in the House of Commons in so many years. I do not really mutter. I have never been accused of muttering before. Clearly, either through lack of knowledge or deception—he can tell me which it is—he implies that I could have spoken there; but any politician worth his salt in here who is not intending to deceive people knows full well that Whips do not speak in the other place. I will give way in a moment, once I finish my point, and I will give the point made by the noble Lord, Lord Tyler, all the merit it deserves, whatever it is. A side issue is that my good friend Alistair Carmichael—he is a good friend even though he is a Liberal Democrat—is now silent. Does that mean that he is reduced to muttering?

[Lord Tyler]

I was Chief Whip for my party in the other place. It never stopped me speaking.

[Lord McAvoy]

That is absolutely right, but that is the difference between a party that aspires to power and a party that aspires to nothing but opposition.

[Lord Foulkes of Cumnock]

My Lords, I am pleased to follow my noble friend Lord McAvoy and to confirm what he said, namely that it is the custom for government Whips in the House of Commons not to speak. That has been the case with both Conservative and Labour Governments. I also add that what he did not say in the Chamber, he made up for outwith the Chamber, to keep his friends and colleagues on the straight and narrow very effectively.

I will raise a completely new matter. I make no apology for that, except to the Minister for not alerting him, because I did not know that there would be an opportunity today to raise this. I doubt if officials have cottoned on to this, unless they are really top-notch. The matter was raised yesterday in Scotland on Sunday. The Minister may have picked it up, because he lives in Scotland, as I do, and may have seen the paper. The matter was picked up today by the dailies and I alerted my Front Bench to it earlier. It is a new and genuine worry about having the election and the referendum on the same day. It was raised not by me but by the association of returning officers in Scotland, which said that it would be impossible to do the count for the Scottish Parliament elections on Thursday evening and make the announcement on Friday morning—as was the case in the past—because of the complications arising from having two elections together and the possibility of making mistakes in the middle of the night. We know the difficulties that arise when one has to work through the night.

It is a genuine worry of all parties in Scotland—certainly of the Labour Party and of the SNP Government, and I understand that at least some Conservatives and Liberal Democrats have expressed concern—that this will mean that on Friday morning there will be total confusion about the outcome of the election, because it will take some time to go through the count on Thursday night and Friday, and probably the result of the Scottish election will not be known until Saturday or Sunday. That will create tremendous problems—with the additional member system that we have, when constituencies are counted before additional members—for parties to know which of them will be in power, for there to be discussions between them about possible arrangements or for the largest party to decide to go ahead. It will create tremendous problems.

I will not blame the Minister if he has no immediate response to this, because the matter has just come up recently and I only became aware of it on Sunday. It would be helpful for all of us if he would look at that, take it away and ask officials—particularly officials in Scotland and in the Scotland Office, in discussion with the Scottish Executive—what the problems are and whether there is any way that they might be ameliorated.

Parliamentary Voting System and Constituencies Bill

Lord McAvoy Excerpts

Monday 24th January 2011 Lords Chamber

[Lord Campbell-Savours]

My Lords, I have in the course of my contributions over recent weeks tried to bring some fairly original material to our debates to help them along. I have often drawn on statistical evidence from various organisations. However, today I do not want to do that. I want to refer to a debate that took place—probably unknown to Members of this House—in the House of Commons on 11 January in Westminster Hall. I should perhaps start by explaining the relevance of Westminster Hall. It is a secondary Chamber in the House of Commons where the debates are of great importance and great interest, but where, for whatever reason, business managers in the House of Commons organise debates which very often attract fewer people. There was a particularly interesting debate that took place there on parliamentary representation. It was called by Mr Andrew George who is the Liberal Democrat Member for St Ives. The relevance of this debate was that it was the first time that many Members of the Liberal Democrat Benches in the House of Commons had had the opportunity to speak on Clause 11 of the Bill. Because of the arrangements in the House of Commons and the use of the guillotine and the truncating of debate, there were many issues which the Liberal Democrat Member of Parliament had been unable to raise. Indeed, he says at the beginning of his contribution:

“I am delighted to have secured the debate, which will explore many of the issues that we did not have an opportunity to explore during the passage of the Parliamentary Voting System and Constituencies Bill … We failed to get to grips properly with the issues that needed to be debated to improve the Bill before it transferred to another place”. — [Official Report, Commons, 11/1/11; col. 25WH]

Then, in an aside—I have to be straight about this—he blamed Labour Members in reference to the delay in debate. Obviously, there were areas of the Bill that we regarded as particularly important which the Liberal Democrats did not regard as important. I want to quote some of the things he and his colleague said, because they have not been considered by Ministers. The comments that were made in Westminster Hall had not been considered by Ministers when the Bill was taken through its Committee and Report stages in the House of Commons. Andrew George says:

“The Bill proposes that all constituencies have an electoral quota of approximately 76,000 with a margin of only 5% either way. It would carve up the country in a manner that would create bizarre constituencies and ignore important cultural, historic and geographic boundaries”.

We have not heard those words mentioned by any Member of the Liberal Democrats here in the House of Lords. He goes on to say:

“We do not want antiseptic constituencies with perpetually mobile boundaries. The five-yearly boundary review that would happen between each Parliament would mean an MP’s attachment to their constituency being perpetually reviewed, so the sense of settlement with the communities they represent would be continually undermined”.

That has not been said by a Liberal Democrat Member in the House of Lords; it was not said in the House of Commons by a Liberal Democrat Member because they did not have the opportunity to say it. It was said in the junior chamber in the House of Commons, in Westminster Hall.

He then goes on to say:

“The amendments to the Bill which I and other hon. Members tabled were unsuccessful, in that they were not selected or therefore debated”.

There are procedural differences in the House of Commons. Whereas here we can debate technically all our amendments, in the House of Commons they have to be selected by Mr Speaker. If they are not selected, they are not debated. Even if they are selected they are not always debated because of the guillotine and timetable. He goes on about his amendments:

“They sought to find circumstances in which the Boundary Commission was given sufficient discretion to work towards the target figure, taking into account reasonable geographic, cultural and electoral issues. We want the Government to allow places to make decisions for themselves collectively, provided that they do not request more favourable treatment, such as over-representation”,

which we accept.

“I hope the Minister takes note of that. It is not about more favourable treatment but simply recognising the distinctiveness of places, which the Bill does not take into account”. [Official Report, Commons, 11/1/11; col. 26WH]

Why has no Liberal Democrat Member of the House of Lords got up to their feet and repeated a statement of that nature to this House? Never once in our debate—someone said that we have now been debating for 90 hours—has that point been made by a Liberal Democrat Member of the House of Lords. I can tell you what the answer is. There is a contractual agreement within this Chamber between two elements of a coalition; that agreement is silencing debate. It is completely undermining the very ethos of this Chamber in the House of Lords.

A Conservative Member—obviously a very courageous one—a Mr Martin Vickers of Cleethorpes, said in the same debate:

“Continually changing boundaries will impact on the vitality and sustainability of local political parties. The democratic process needs viable local parties and associations, but constant boundary changes inevitably impact on their viability. Taking one ward out of a constituency can render the local party virtually bankrupt if the ward’s financial make-up means that it contributes greatly to the party. We need to think seriously about that”.— [Official Report, Commons, 11/1/11; col. 26WH]

And so we do. Why are not Conservative Members of this House getting up and arguing the case that is being put in Westminster Hall in the House of Commons? And then, later in the debate, Mr Andrew George says that,

“the boundary of my constituency changed at the 2010 election and those constituents who used to live in my old constituency still contact me. Given the arrangements in the Bill, that sort of thing would happen at every election, so there would be confusion”. —[Official Report, Commons, 11/1/11; col. 38WH]

And how right he is.

Let us take a town on the margin of a county, on the margin indeed of a constituency, that switches from one election to another between Members of Parliament, where the electorate do not actually know who their MP is, because of this constant change and movement as the Boundary Commission somehow has to find a way of ensuring that constituency boundaries fall within this 5 per cent limit which we would wish to extend to 10 per cent.

Take a county like Cumbria, and let us take the town of Kendal. Kendal was not in my former constituency but it was very near the county boundary; a beautiful town on the fringes of the Lake District. Indeed, the people of Kendal would say that they were part of the Lake District. There is a possibility that within the terms of this Bill that town might be split.

I know that Members of Parliament with large city seats very often find that their cities are split. It will work in a large city. It will work in a large community, but it will not work in a small community. It will create divisions within that area—divisions inside parties, between officials inside parties, between treasurers, secretaries, chairmen—all kinds of unseen divisions that boundary commissioners when they are taking their decisions about the future of constituency boundaries would never at any stage be aware of. Those are the kinds of issues that might well surface during the course of an oral inquiry. But the Bill goes on to take away the opportunity for such a forum to examine the minor detail of what would happen in the small community, a town like Kendal, in the event that it were split in the way that the Bill might provide for in the end.

I have a lot more to say on these matters, but I shall save my words for later in the evening—indeed, the night.

[Lord McAvoy]

My Lords, I would like to give some practical examples of what my noble friends have been describing here. I know that some folk do not like practical examples, but this is what this House is for; to listen to each other and to learn from each other. I am still on a learning process.

The point about wards being the building blocks is illustrated in the former constituency I represented. It illustrates the folly of tinkering with political systems because a party is part of a coalition. That is what happened to the Labour Party in 2004 in Scotland and the Scottish Parliament elections where the Liberals put as a price for joining a coalition the introduction of proportional representation to local government.

I can advise any coalition party involved with the Liberals that in the long run they will tinker and tamper with PR to your detriment and downfall. What happened at the local elections was a disaster, but we have already discussed that and I do not want to be accused of or be guilty of repetition. A multi-member ward system was introduced.

--- Later in debate ---

[Lord Foulkes of Cumnock]

Can my noble friend remind me about the boundaries of the Scottish Parliamentary constituency represented by James Kelly, and about the former boundaries of Rutherglen? My recollection is that the situation is similar to what happened in Ayrshire and Edinburgh, whereby the boundaries are now not the same, and there are a number of problems; MSPs have to deal with a number of MPs, and MPs have to deal with a number of MSPs.

[Lord McAvoy]

I thank my noble friend, because that is the next item on my little list. Again, Labour has given in too much to Liberal machinations and fascinations about systems. Last week, I mentioned that we kept on being told that the Scotland Act was supposed to be the settled will of the Scottish people. The Scotland Act stated that the number of Westminster constituencies should be reduced and that the number of Scottish parliamentary constituencies should be reduced in tandem. That did not happen, thanks mainly, but not entirely, to Liberal pressure. Now the Westminster constituency boundaries are not coterminous, and I notice the Minister expressing satisfaction at that for, I am sure, purely party interests. He is motivated to do that.

There has been a disjointed effort to try to cope with that in terms of party organisation. Rutherglen and Hamilton West now has the entire Rutherglen Scottish parliamentary constituency within it, although the people of west Hamilton feel that they are being just moved about as part of a block which seems to be favoured by the Minister. The people of west Hamilton have been shunted away from the Westminster constituency boundary, and into the boundary of Tom McCabe’s Scottish parliamentary constituency. James Kelly is getting down to work very well in what is to him a new place, High Blantyre.

I know this has been said before, and I apologise to anyone who thinks I am being repetitive. I am certainly not filibustering. I can assure colleagues of that. I am not thin-skinned and sensitive, but I would not get away with it. It is surely frustrating—annoying is too strong a word—to be told that you are filibustering when you are trying to get across the concerns of your constituency. At the end of the day, if any legislative Assembly does not take people into account or listen to them, we are all in a bad way. I make no apology for expressing my concerns about how this issue will affect my community, because I was born and brought up in Rutherglen, where I have lived all my life.

This continual five-year change in boundaries will be chaotic, if it goes ahead. In my experience in the other place, all political parties showed great faith in the link between the Member of Parliament and the constituency. There is a terrific bond. I do not say that to be elitist to colleagues on all sides of the House who have never been in the other place. Nevertheless, that bond will be broken. I return to the absolutely brilliant phrase of the noble Lord, Lord Forsyth of Drumlean, who said there will be just blocks on a map.

Chaos will be caused to the political parties, and that will be reflected in issues such as how best to represent people. I used to have people come to me from the other side; and, vice versa, Jimmy Hood had people coming to him from my side in Hamilton. The situation was particularly bad in Hamilton, because it was a town split in two, just to make up numbers. That is an example of a town of which I have a fair knowledge being split down the middle just to fit the numbers—end of story. That is surely wrong, and I cannot believe that every noble Lord on the other side of the House, or our colleagues on the Cross Benches, thinks that it is good not to take account of communities—especially given that this will happen every five years. At the end of the day, this is not simply about party mechanics and organisation to suit the politicians. It is about whether the proposals make the political structures and organisations fit enough to represent the people, stop the confusion and be a useful part of a democratic process in this country.

[Baroness Hughes of Stretford]

My Lords, like my colleagues, I think there are many problems with the Bill. The biggest problem is that the Government failed to consult local people before they dreamt up their proposals. I say that because in my experience as, I hesitate to say, a local councillor for nearly 25 years, as a leader of a local authority and as a Member of Parliament for 13 years, when faced with proposals that they feel cut across their sense of community and identity as a result of a boundary review, local people feel very strongly about some of the issues that the Bill relegates to secondary importance in favour of a rigid mathematical formulation. It is a great pity that the Government did not consult local people about these proposals before they put them forward because, had they done so, they would have come up with a different formulation.

It may be useful if I recount to noble Lords one such experience during those 25 years when the Boundary Commission made a proposal, which would be common with the measures in this Bill, to split my then constituency and form a new constituency in the Greater Manchester area of the north-west of England. The Boundary Commission’s proposals during my period as an MP would have taken five wards from the north of my former constituency in Old Trafford, next to Manchester city centre, and linked them with four or five wards in the neighbouring local authority of Salford.

At that time there were no straightforward bus routes between those wards in the different local authorities. To get there by car one had to go over the M60 motorway, and by public transport one would have to go into the centre of Manchester and out again to get from Trafford to Salford or vice versa. The reaction of local people to the proposal from the Boundary Commission was loud and vociferous; they rehearsed many of the arguments that my noble friends have put in this Chamber. It was not because the people of Old Trafford rejected the people of Salford or vice versa but because they already identified with different communities represented by the constituencies of which they were already a part—the Old Trafford wards were part of the Trafford local authority; the Salford wards were part of Salford local authority.

Those involved emphasised the importance of the communities in those areas; the differences between the communities in Old Trafford and in that part of Salford; they talked about the sense of identity and place to which my noble friend Lady Farrington referred; and they argued strongly that they wanted coherence of representation from both their local councillors and, particularly, their Members of Parliament. They wanted to feel that they shared the Member of Parliament who represented the whole area of which they were a part, and that that Member of Parliament and that constituency would reflect the history, the geography, the boundary, the proximity and other mechanisms through which people reinforce their sense of identity—local newspapers, schools and so on.

It is unthinkable that wards should be split across different constituencies by boundaries being redrawn. If noble Lords think through the implications of that for political parties, local people and local authorities, they may feel it would be a chaotic situation for all concerned. In building on wards it is important that local people should feel that they have got that sense of identity and coherence in the constituency as a whole. By and large, from my experience, I believe that where possible a constituency should contain a whole local authority and not be split.

Parliamentary Voting System and Constituencies Bill

Lord McAvoy Excerpts

Thursday 20th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

It was not the 1986 legislation. Let me put it on the record that Orkney and Shetland is under present legislation outwith the purview of the Boundary Commission for Scotland. Orkney and Shetland is preserved as a Westminster constituency by virtue of the Scotland Act 1998, which was passed by the previous Labour Government. It was outstandingly passed as it was a very good piece of work. It was whipped through by the noble Lord, Lord McAvoy. It gives the constituency of Orkney and Shetland preserved status. It was not done by this party but by a Labour Government. I congratulate them on it. It seemed logical that the Western Isles should be treated in a similar way in this Bill.

[Lord McAvoy]

The Minister has forced me to break my self-denying ordinance about intervening on Ministers. However, he will recall that in a previous discussion about Orkney and Shetland both getting MSP seats he said that one day he would give us details of the deal he struck with the late Donald Dewar to get that. Who did he do this deal with to get preserved constituency status?

[Lord Wallace of Tankerness]

I did not do a deal with anyone with regard to this. I have just paid tribute to the party opposite which recognised the importance of Orkney and Shetland by giving them separate seats in the Scottish Parliament and preserving the Orkney and Shetland Westminster seat. I hope that noble Lords will think that it is not unreasonable that, given the similar circumstances of the Western Isles, they should be included.

There were some important contributions in this debate about the City of London. The amendment was spoken to by my noble friends Lord Brooke and Lord Jenkin, the noble Lords, Lord Myners and Lord Davies of Stamford, and, very persuasively, by the noble Baroness, Lady Hayter of Kentish Town. I think the important role that the City of London has in the history of this nation is well recognised across the Committee, as is the important financial contribution that the City makes.

As I have indicated, the primary concern of the Bill is to create more equal-sized constituencies, and that is best achieved by keeping exceptions to the minimum. As a result, the Government do not believe that the City of London should appear as an exception. While it is not for me to say what the Boundary Commission for England will do, I hope it might reassure noble Lords to know that the 25 wards in the City of London have fewer than 7,000 electors, which is smaller than some individual wards elsewhere in the country. I therefore suspect that it is unlikely that the City will be split between two constituencies. This is a very obvious case where the rules, particularly rule 5 about where special local ties would be broken by changes in constituencies, would be highly relevant in addressing the Boundary Commission.

The question was raised with regard to the historic nature of the City. The position, as I understand it, is that while Magna Carta protects certain privileges of the City of London, paragraph 628 of volume 12(1) of Halsbury’s Laws of England lists customs of the City that have been certified by the Recorder and recognised by the courts, but does not include anything on Parliament or constituencies. However, there is considerable history here and I would want to do better justice to this issue. I hope that I shall be able to write to the noble Baroness who raised this matter, addressing the point that she made concerning the history of the City as a parliamentary constituency, and I shall seek to do so before Report. As for the name of the constituency, again, that should be a matter for the Boundary Commission. However, I have no doubt that those who feel strongly about any proposal from the commission that affects the City of London will be able to make representations to it. I certainly recognise the importance of the name of the City of London, and we believe that this strikes the best balance between respecting the history of the nation’s communities, including the City of London, and providing equal weight to the votes of those who live in all our communities.

I turn to the question of Edinburgh—

Parliamentary Voting System and Constituencies Bill

Lord McAvoy Excerpts

Wednesday 19th January 2011 Lords Chamber

[Lord Howarth of Newport]

I would personally be terribly disappointed if the noble Lord, Lord Tyler, were to take advantage of the fact that I was on my feet to go and have a cup of tea because I depend on his presence as a stimulus and discipline to myself. I might be tempted to speak more rashly and randomly if it were not for the invigilatory presence of the noble Lord in the Chamber.

[Lord McAvoy]

In relation to the contribution of the noble Lord, Lord Tyler, does he know that just before we adjourned yesterday, Conservative Whips happened to find some papers that had been left in one of the gents toilets indicating a rota going on until six in the morning? There were then all sorts of phone calls and various messages went out to Conservative Members to come back quickly and to make sure that they were there. It turned out, somehow or other, that the paper was a hoax.

[Lord Howarth of Newport]

My noble friend has a knowledge of the dark arts that I could never match, nor would I wish to match.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, my connection with the Isle of Wight is that when I was Lord Chancellor I was invited to open the new magistrates’ court there. My host was the late Lord Mottistone, who was a Member of this House and at that time the governor of the Isle of Wight. I gather that the governor’s post has fallen into desuetude, but at any rate that shows that it was a separate—whatever the right noun is for whatever the governor has to rule over. I was shown very well over the island during that visit. My noble friend has succinctly explained the powerful case for separating out the Isle of Wight, and I hope that the Government consider it.

On the wider point made by the noble Lords, Lord Judd, Lord Forsyth and Lord Pannick, I believe that the amendment moved yesterday and dealt with so expeditiously yesterday afternoon, which is to be considered by the Government, would provide a pretty good answer to most of the difficulties, if the Government are pleased to accept it.

[Lord McAvoy]

My Lords, without injecting too much of a sour note, I would like to follow up some of the points made by my noble friend Lord Judd, who made them far more eloquently than I will—I have never claimed to be eloquent.

Community is certainly to the fore in these matters. The noble Lord, Lord Forsyth, rightly explained the sense of community that people feel for the place where they live and where they may have stayed all their lives. Noble Lords will tell me if I step out of order, but I shall run the risk of perhaps bringing in things that are for a future amendment but that are, nevertheless, relevant to what is being discussed here today. I make no apology for attempting to do that.

In 1973, a Tory Government ripped apart the Royal Burgh of Rutherglen and shoved us into the new City of Glasgow District Council, with no regard for the community or the political unity of the burgh, the Cambuslang or Halfway areas—absolutely nothing. “You’re going in and that is it”, was the attitude, as the Government did not listen to a single thing. Many years later in 1993, 1994 and 1995, with the help of a more benevolent Conservative Minister, Allan Stewart—who was a first-class Minister and a first-class community man as well—the towns of Rutherglen, Cambuslang and Halfway were taken out of Glasgow and put back into their natural home of the county of Lanarkshire. Although there is not the obvious geographical case for Rutherglen, Cambuslang and Halfway that is apparent for the Isle of Wight, nevertheless we also have a sense of community. The difficulty for me is that the Member of Parliament for the Isle of Wight has made an outstanding case; I hope to make an outstanding case for my community at a later stage, but—there is always a but, and this is where I might do myself a bit of damage personally, but there we are—first and foremost I am a Rutherglonian, and I shall represent that burgh to the best of my ability in matters where the law is being changed.