Electoral Registration and Administration Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Monday 14th January 2013 Lords Chamber

[Lord Rennard]

My Lords, our Amendment 39 seeks to resolve concerns raised by the Electoral Commission that the wording in the Bill could weaken electoral registration officers’ existing duties.

It is welcome that the Government propose to add a duty to secure that,

“persons who are entitled to be registered in a register (and no others) are registered in it”.

This is effectively a duty to ensure completeness and accuracy, and I welcome that. However, we do not see the case for diluting that duty with a test that states,

“so far as is reasonably practicable”.

If those words were omitted, the duty would simply be subject to the existing test, which is to,

“take all steps that are necessary”,

making it far stronger. The Government argued at an earlier stage that the “reasonably practicable” test does not make any difference and that electoral registration officers will still comply. That begs the question: if it makes no difference, why change the wording? It is clear that having these words is more likely to dilute the duty than not having them.

As far as I know, no legal challenges have been brought to the existing test of,

“take all steps that are necessary”,

with, perhaps, a vexatious suggestion that an electoral registration officer should have taken an unreasonable step, such as coercing someone to fill in a form or something of that nature. It is of course understood that the steps taken should be reasonable, but we believe that all necessary steps should be taken, and to that end the words referred to in Amendment 39 should be omitted.

I would be grateful to hear from the Minister why he thinks there is merit in removing those words—or at least a reiteration of the assurance that there is no intent to change the purpose of those words, even if they disappear from the legislation. We should not like to hear that there is any intention to dilute the duties of the electoral registration officers, and these reassurances will need to be persuasive if we are not to return to this issue on Report. I look forward to hearing from the Minister and I beg to move.

[Lord Falconer of Thoroton]

My Lords, we have two amendments in this group. They chime with the point that the noble Lord, Lord Rennard, is making; namely, is the Bill intending to dilute the powers of electoral registration officers and the Electoral Commission?

Amendment 39A seeks to address concerns held by the Electoral Commission that Schedule 4 waters down the provisions of the Representation of the People Act 1983 that required electoral registration officers to take all necessary steps in carrying out their duties. Our amendment proposes to remove this subsection and is intended to give the Government an opportunity to explain their thinking on this, and it very much reflects the point made by the noble Lord, Lord Rennard.

With regard to Amendment 39C, this Bill downgrades the role of the Electoral Commission in the transition to and rollout of individual electoral registration. We have sought several opportunities to amend this Bill to give the Electoral Commission more power. This amendment aims to give power to the Electoral Commission to intervene where EROs are not performing to a sufficiently high standard.

However, interestingly, the Electoral Commission has now issued a statement saying that it feels that it does not need these further powers. We originally tabled this amendment in response to the Electoral Commission’s concerns, but it now says:

“In instances where the Commission has concerns about ERO performance, following a recommendation from the Commission, the Secretary of State or Lord President of the Council has a ‘power of direction’ to require EROs to comply with any general or special directions in relation to the discharge of their functions. To date this system has worked well and we therefore see no need for this to change when IER is introduced”.

The Electoral Commission says it is satisfied with this provided that it receives assurance from the Government that they are prepared to use the existing power of direction in cases where EROs are not fulfilling their duty to take all necessary steps to maintain the electoral register.

It is not a satisfactory position that the Electoral Commission not taking additional powers depends upon a Minister intervening in relation to what particular EROs are doing. It is a slower process; it depends upon the good will of politicians. Is it not better for it to be dealt with by a body that is independent of any political party? I would be interested to hear the Government’s views on these issues.

[Lord Gardiner of Kimble]

My Lords, first, I thank my noble friend for raising the issue of the general duty on registration officers.

The amendments to the 1983 Act set out in the Bill strengthen the existing duties on a registration officer while taking into account the requirements of the new registration system. The amendments to Sections 9 and 9A of the 1983 Act made by the Bill do not lower the standards that registration officers are expected to meet. Instead, they set out explicitly important requirements that are not expressly stated in legislation at present.

The qualification of “reasonably practicable” applies to the standard of completeness and accuracy of the register that must be reached—it must be as complete and accurate as is reasonably practicable. This is a high standard. To set it any higher would be to ask registration officers to achieve unreasonable or impracticable levels, which would not be right. It is simply not possible for registration officers to have perfectly up-to-date registers at all times and it would not be reasonable to introduce a requirement on registration officers which they would not be able to meet.

The Electoral Commission accepts that the changes proposed to Section 9A do not represent a watering down of the duties of electoral registration officers, but has asked the Government to make clear their intention behind the rewording of Section 9A. To offer that reassurance I will quote Mr David Heath from another place when he said that,

“far from diluting the requirements on registration officers, under the new registration system we are strengthening the existing duties”.—[Official Report, Commons, 27/6/12; col. 316.]

The change we are making does not weaken the duty in Section 9A. We have set out in draft regulations our initial proposals for what registration officers must do to encourage an application to register to vote. This includes as a minimum the sending of an invitation, two reminders, and the sending of a canvasser to encourage an application.

I believe that Amendment 39A has the same desired effect as Amendment 39. In addition, however, it would have the effect of removing the explicit duty to seek to include in the register those who are eligible to vote but are not currently on the register. Amendment 39C would give the Electoral Commission powers of intervention where they judge that registration officers have not taken all of the necessary steps outlined under Section 9A. However, it is not clear from the amendment what form this intervention would take.

We believe that the fulfilment of the requirements set out in Section 9A plays a vital role in improving the completeness and accuracy of our electoral registers, which we are committed to achieving; however, giving the Electoral Commission powers to intervene where this is not being done would be a significant change in its role.

The Commission already has powers to set and monitor performance standards for electoral services, against which electoral registration officers’ performance is measured. A failure to meet those standards could indicate a potential failure to meet the duty set out in Section 9A of the 1983 Act. In addition, Ministers may require registration officers to comply with directions relating to discharging their functions. It is also an offence for them to breach their official duty without good cause. To date this system has worked well and we see no need to change this or for any specific provision to be made relating to the discharge of Section 9A duties. For these reasons, I question whether the amendment is necessary in ensuring that Section 9A duties are fulfilled. For those reasons I ask my noble friend to withdraw his amendment.

I shall also speak to Amendments 43 and 45, which are minor and technical amendments. As a consequence of the changes to the canvass process under IER to be made by the Bill, we need to remove the reference to “the relevant date” from Section 49(6)(a) of the 1983 Act. That date is usually 15 October, which is currently the date of residence for the purposes of the annual canvass. Under IER the canvass will not be tied to a date. It is for those reasons that the Government will move Amendments 43 and 45.

Queen’s Speech

Debate between Lord Rennard and Lord Falconer of Thoroton

Monday 14th May 2012 Lords Chamber

[Lord Rennard]

Indeed, but the question must be put as to why the party stood on that manifesto in 2010 as clearly and unequivocally as it did. The Conservatives stood on that basis over 10 years, with three manifestos— whether there would be a substantially or predominantly elected element or changes to the House of Lords. It was on that basis that they were elected. That is a matter for others to judge them on.

It will be to the relief of the House that I will not quote every Labour manifesto on the subject of House of Lords reform. The noble Lord, Lord Grocott, tried to refer to 11 of them in brief. I will quote just one, which happens to be the one on which the last Labour Government were elected. I am sorry that the noble Lord, Lord Grocott, is not in his place. He suggested that whenever the Labour Party advocated Lords reform, it lost. I seem to recall that the Labour Party won the 1997 general election, and did so decisively with a majority of 179.

[Lord Falconer of Thoroton]

My recollection is that we also won in 2001 and 2005. I think the noble Lord said that it was the last time that we won.

[Lord Rennard]

It was the beginning of the last Labour Government. The manifesto said in 1997 that,

“the House of Lords must be reformed ... to make the House of Lords more democratic and representative”.

In particular, the 1997 Labour manifesto said that,

“the legislative powers of the House of Lords will remain unaltered”.

Fixed-term Parliaments Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Monday 18th July 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, this has been an extremely good debate. If I may respectfully say so, the opening speech from the noble Lord, Lord Butler of Brockwell, said almost everything that could be said and I support everything that he has said in relation to this.

We support this amendment because we think the Bill is a bad Bill. We respect the right of the coalition, because of the relationship between the Commons and the Lords, to have what they wish—which is a Parliament that ends on 15 May 2015—but if you analyse the detail, this Bill damages rather than improves the constitution. Mindful of our obligation to respect the primacy of the Commons, we suggest that we give the Commons what they wish but do not affect the constitution further than is necessary. Before I come to the detail of that argument, I will just get rid of some of the truly appalling points that have been taken against the amendment.

First, I turn to the point that the provision is badly drafted. It was drafted by the noble Lords, Lord Pannick, Lord Butler of Brockwell, and Lord Armstrong of Ilminster, and supported by the noble Baroness, Lady Boothroyd. I do not think you could have a more powerful team in relation to this. What the amendment says—and it says it incredibly clearly—is:

“The polling day for the next parliamentary general election after the passing of this Act is to be 7 May 2015”.

It then says,

“If, but only if, a resolution to this effect”,

is passed, then the next one will be five years after that, and if a resolution is not passed, the other provisions do not apply. It could not be clearer. Please ignore all false remarks made in the other place. With respect to the noble and learned Lord, there is nothing wrong with the drafting of this.

The second point that has been made is that it is suggested there is something unconstitutional about this provision. First, it is said a sunset clause is inappropriate. We know that there have been sunset clauses in what may be described as constitutional Bills, for example the EU Bill and the control order Bills. The idea that a sunset clause in a constitutional Bill is inappropriate has been rejected by this House on a number of occasions and accepted by the other place.

The third particularly bad argument is that the provision increases the power of this place by allowing it to defeat orders. Yes, we can defeat orders, and the Parliament Act does not apply, but we always behave responsibly, and I would expect us to behave responsibly should the Commons indicate after the next general election that they want to have a fixed-term Parliament. If, however, that was the objection to this provision, then speaking for myself I would readily agree to an amendment to deal with that.

The final particularly appalling technical argument that has been advanced is that this is contrary to the Salisbury/Addison convention. I have never heard this being said until this afternoon. The Salisbury/Addison convention effectively says if the electorate have indicated it supports something this House should not resist it. I do not know if Members remember the election in 2010, but the one thing I can tell you, and it pains me to say it, is the one party that unquestionably lost the election was the Labour Party. Yes, a fixed-term Parliament was in our manifesto, but the public appeared very unattracted to it, so I do not think the Salisbury/Addison convention can be relied on by anybody remotely sane.

We know why this has been put in because we have had the privilege and the pleasure of Mr David Laws’s book, which was read many times on the Floor of this House during debates. Noble Lords will recall that Mr David Laws, who happily for this House was present during negotiations, gave us an account of how we got the Fixed-term Parliaments Bill. It is lovely to hear the highly principled noble Lord, Lord Rennard, and the splendid noble and learned Lord, Lord Wallace of Tankerness—neither of whom were there and neither was I—but have I got news for you. It was not on the basis of a desire to change the constitution; it was because the Tories and the Liberal Democrats did not trust each other to hold on to the convention. As David Laws explained, that is why they said that there had to be a Bill.

I respect the decency of the noble Lord and the noble and learned Lord to whom I have referred but that was not the reason given by David Laws for why this has been done. It is because of the coalition agreement. I could not put it better than Mr Shepherd, the Member for “somewhere”. He is facing a House of Commons laughingly about to pass this Fixed-term Parliaments Bill without the sunset clause. He says:

“I hope that this cheerful Chamber will look askance at the Minister and his colleague, the Deputy Leader of the House, who are sitting on the Front Bench and trying to seduce us into thinking that there is some immaculate constitutional conception behind the Bill. There is not. It is the raw politics of ‘We want to be there for five years, in the hope that something turns up at the end of the fifth year’. That is what it is about, and we know it. I urge the House to vote for the Lords amendment, and damn them”.—[Official Report, Commons, 13/7/11; col. 378.]

I do not think he meant damn the Lords; I think he meant damn the coalition.

[Lord Rennard]

My Lords, does the noble and learned Lord, Lord Falconer, also recall that during the very same debate Richard Shepherd said that,

“the Lords make the absurd proposition that it should have a role, as an unelected House, in determining when an election should be”?

He also described these proposals as,

“ridiculous proposals from the House of Lords … the body of the House … feels that this is almost an impertinence”.—[Official Report, Commons, 13/7/11; col. 377-78.]

Those were the context of his remarks last week.

[Lord Falconer of Thoroton]

I recall that but he voted in favour of the amendment. So I think you can say where his heart lay in relation to this.

Moving away from the technical points to the point of this Bill, let us think about history for a moment. In 1924, the Labour Government were defeated in a vote because the Labour Prime Minister had interfered with the Attorney-General in the exercise of his discretion. The moment he was defeated on the Floor of the House of Commons, there was a general election and the Conservative Party was returned to power. Imagine if Mr Ramsay MacDonald had been faced with the Fixed-term Parliaments Bill in 1924: first, being defeated on the proposition that he had interfered with the Attorney-General would not have led to a general election. There would had to have been a vote of no confidence put down by the Opposition. Let us assume that that had passed but that would not have been the end of it. Mr Ramsay MacDonald would then have had 14 days to try to cobble together a bit of support. Let us remember that he had a small majority in relation to this. He could have tried to survive on that basis. Is it seriously being said that that sort of behaviour would have led to the public having more confidence in the Government?

Moving forward in time to 1974, Mr Edward Heath perfectly legitimately wanted to test who governed the country because the country was in a major crisis in relation to the miners’ strike. Despite the fact that he legitimately wanted to go to the country, he could not have gone because he would not have been allowed to under this Bill unless he had tabled a vote of no confidence in his own Government. I think it was the noble Lord, Lord Hamilton, who said that perhaps he could have done that. But what would people think of a Government who put down a Motion of no confidence in themselves?

Finally, the father of my noble friend Lady Jay in 1979 was defeated in a vote of confidence on the Floor of the House of Commons. The most quoted extract from political history in the course of this debate was what Mr James Callaghan said when he was defeated. He said, “I have been defeated in the House of Commons. I must now take my argument to the people”. After this Bill has been passed he would have to say, “Now that I have been defeated on a vote of no confidence, I must see if I can scrabble together a majority to stay in power because this beastly Act gives me 14 days in which to try to do it”.

Okay, I say to the coalition, have your miserable Act so that you can stick together until 5 May 2015, because we respect your right to force that upon us. However, there is nothing unconstitutional in saying that it is appropriate for this House to stick with the principle that says, after that, let the next Parliament decide whether it wants to continue with what I say is a terrible Act. We will support the noble Lord, Lord Butler of Brockwell, in his excellent sunset clause.

Fixed-term Parliaments Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Tuesday 10th May 2011 Lords Chamber

[Lord Rennard]

The previous Labour Prime Minister of course went for five years. If this legislation is passed in its current form, would a future Labour Government amend it to change back the fixed term from five years to four years?

[Lord Falconer of Thoroton]

I cannot commit a future Labour Government, but people should form their own view about whether fifth years have been good years. We should look at this in a non-partisan way. Do Mr Major or other Labour Prime Ministers in the past who have gone a fifth year fit the rubric of Professor Hazell; namely, people hanging on to the last moment and ending up in a situation where there is a pretty awful year? Four years is good, because it means that you are accountable to the electorate much more regularly. It would probably have meant three or four more general elections since 1945. Let us remember what the much revered Deputy Prime Minister told the Select Committees. He said that the reason for which these provisions were being introduced was to make politicians more accountable to the electorate. It is quite hard to see how you make politicians more accountable to the electorate by reducing the number of general elections. In those circumstances, we will vote for four years for this Parliament, for four years for the future and for the Boothroyd/Butler/Armstrong/Pannick amendment. I beg to move.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, as I indicated earlier, I support this suite of amendments. They are important in relation to the position of Parliament and this Bill for three reasons. First, such a series of clauses might well be appropriate in any constitutional legislation that makes a significant change. I do not think that anybody doubts that, because that is how the Government are putting it. I agree with other noble Lords who have said that this is potentially a significant constitutional change. In my respectful submission, before we commit ourselves irredeemably to this change it is sensible to see what happens. For that first reason, I support the amendments.

Secondly, we broadly know—there is no real dispute—the provenance of these constitutional changes. There is no suggestion that there is a widespread desire among constitutionalists or the public for this particular change. It is an insider’s deal in relation to politics, which suits two political parties. As far as one can see, it has no broad political support beyond the two political parties. I venture to suggest that, if the public's interest could be engaged in this and one explained to the public that we might have a situation under the Bill where the Government could be defeated on the Finance Bill, then defeated on a vote of confidence that they put down and they would still not have to have a general election—or that the Government could be defeated on a vote of no confidence put down by the Opposition and they would still not have to leave because they could spend 14 days bribing a variety of rebels and other small parties to join them, so they could hold on in Government—the public might not find this Bill worth supporting. It is an insider's Bill, which does not feel particularly attractive to me.

There is a third reason of importance. I have found in the course of these debates in the Commons and in your Lordships' House that people think that, in relation to a significant constitutional change, there should be public consultation, a desire to find consensus and pre-legislative scrutiny. Indeed, on 25 May, David Heath, the Deputy Leader of the House of Commons said that he favoured pre-legislative scrutiny for this Bill. His only concern was that such scrutiny might lead to the Bill being forced into the next Session of Parliament. Noble Lords will remember that the coalition in the Commons then extended this Session by approximately nine months thereby making it clear that there could be no clash. There was still no pre-legislative scrutiny.

Therefore, I think most people who have debated this would agree that this Bill has not gone through the appropriate procedures for a Bill of this importance constitutionally. Is there no price to be paid for this? Is Parliament to be absolutely supine in relation to this? It is a big opportunity for the coalition Government to put their money where their mouth is. They say they believe in new politics and they say they believe in reaching out for consensus; I cannot see any reason why the noble and learned Lord cannot say, on behalf of the Government, that he agrees with what has been said and that we should see whether the way that the Bill operates between now and the next election gains public support and, if it does, Parliament can form a view about whether to pass the resolution next time around. That would not cost the Government anything, because they would have the Bill they want.

[Lord Rennard]

The noble Lord is of course a very clever lawyer, so perhaps he could just explain to the House, for the purposes of clarification, how he considers supporting an amendment that says that each Parliament, after each general election, should meet to consider how long the Parliament should last, is compatible with the Labour Party manifesto commitment a year ago, which said that if the party returned to government, it would legislate for fixed-term Parliaments?

[Lord Falconer of Thoroton]

What you do here is you have a Bill for fixed-term Parliaments, you see how it works and, if it works, you determine whether, as a Parliament, you should continue with it.

Fixed-term Parliaments Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Tuesday 29th March 2011 Lords Chamber

[Lord Rennard]

Does not the noble and learned Lord, Lord Falconer of Thoroton, recall that it was actually in the autumn of 1978 that the then Prime Minister, Mr James Callaghan, offered significant inducements to the Ulster Unionists to stave off his defeat by creating extra seats within Northern Ireland at the Westminster Parliament in order, under the existing system, to stay in office for longer? Furthermore, does not the noble and learned Lord recall that, wisely, the previous Labour Government introduced the Acts setting up the Scottish Parliament and the Welsh Assembly? In the Welsh Assembly, provisions were shown to have worked well when Mr Alun Michael lost a motion of no confidence, but there was no general election for the Welsh Assembly; nor do I recall any suggestion of that from noble Lords opposite or members of the Labour Party. All that happened was merely that Alun Michael lost the motion of no confidence; he had to stand down as First Minister; Mr Rhodri Morgan became First Minister; and a new coalition Government were formed who governed Wales very satisfactorily until the next election. Is that not a good model?

[Lord Falconer of Thoroton]

It was a very good model for Wales. The noble Lord, Lord Rennard, appears to be supporting a model under which you can lose a vote of no confidence, then have 14 days, and come back as Prime Minister. That is what this proposal does. However, that is not my point, which is, essentially, that the right answer will very much depend upon the circumstances.

It was obviously right that James Callaghan went to the country in March 1979, and it would obviously have been wrong if there had been a 14-day pause before he did so, and if the system had allowed it. Equally, when Mr Baldwin was defeated in January 1924 on an explicit motion of no confidence, and he came straight back from a general election, it was wrong for there to have been a general election. Instead, the right answer was reached and a new Government were produced. The right answer in any particular case depends upon the circumstances that apply at the time. I am sure that Mr Alun Michael giving way to Mr Rhodri Morgan was the right course there.

Why are we introducing a Bill that rigidly requires the 14-day period? Why do we not have a system whereby, if it is right to go to the country, we do so, and if it is not right to go to the country, we do not do so? The other example of a vote of no confidence that I have in mind, which is not a true example, is the vote on the conduct of the Narvik campaign in 1940, when Neville Chamberlain was Prime Minister. There was criticism of the way that the Government had conducted the raid on Narvik. He won the vote—although I cannot remember whether or not it was a vote of no confidence—but a significant rebellion on the Conservative side led to Chamberlain concluding, almost certainly rightly, that he should resign as Prime Minister. Within two days, he was replaced by Mr Winston Churchill, who formed a national Government. The matter is slightly complicated by the fact that the right to hold general elections had been suspended; but even if that were not the case, the right answer at that point would almost certainly have been for Parliament to choose a national Government and to provide a new leader for the nation. The country would have completely accepted that.

The problem with the Bill is that it rigidly introduces the 14-day period. It is worth repeatedly going back to the 1979 example. The 14-day period would have allowed the Prime Minister to try to cobble together a Government that would not have had popular support and, equally, would have allowed the Opposition to enter into a bidding war with the minor parties to try to get them to support a Government, when it was obvious that the right answer was a Dissolution and a general election. This Bill has unquestionably got it wrong by saying that there has to be that 14-day period. It would have been too long in the Winston Churchill case and too long in the James Callaghan case. It is obvious that we should have gone straight to the country at those times. Who knows whether it would have been long enough in January 1924, when Labour had to make an arrangement with the Liberals—not the Liberal Democrats—to form the first Labour Government? Would that have taken 14 days or longer to concoct? It would have depended on the circumstances. Insisting rigidly on this 14-day period feels obviously like the wrong solution.

With respect to the Government, we are in this mess—it is obvious that it is a mess—because the coalition is looking for a mechanism to hold itself together, as David Laws’s book makes absolutely clear. The noble and learned Lord, Lord Wallace of Tankerness, has the courage to shake his head. I therefore invite him to draw attention to those parts of Mr David Laws’s book with which he disagrees. I invite him to say so if this change has been introduced because the Government believe that it is the right thing to do for the country, rather than a means of holding the two parts of the coalition together.

We are where we are: we are looking at this ill thought-out Bill, which is a means of holding the two bits of the coalition together. What is the right solution? I respectfully suggest that the right solution is to give maximum flexibility so that normally, when there is a vote of no confidence, the Government should go straight to the country, as usually happens. There should not always be the need for the 14-day pause. However, there should be some mechanism so that, if it is appropriate, a new Government can be formed, as in the Baldwin example or the Winston Churchill example. That is what the Government should try to produce as part of this Bill, rather than have this 14-day period, which will lead to a 14-day pause when there is no Government, often when the country is simply waiting for nothing. Alternatively, there is the unseemly scene of a Government trying to avoid going to the country, bidding with the minor parties or their own Back-Benchers to get them back into the position where they vote in favour of a new Government, even though they are, in substance, the same as the old Government and have cobbled something together to get around the no-confidence vote.

Either—14 days of nothing or the old Government coming back as a retread new Government within the 14 days—is a very undesirable result. I very much hope that the noble and learned Lord, Lord Wallace of Tankerness, will tell me why I am wrong about both conclusions, and how the Bill deals with them. If he cannot deal with them, perhaps the answer is to go back to the drawing board and think of something that, as my noble friend Lord Grocott said, is effective in dealing with the problem at the moment—namely, the present system. A vote of no confidence normally allows for an election but is flexible enough to ensure that a Government emerge when appropriate.

Fixed-term Parliaments Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Monday 21st March 2011 Lords Chamber

[Lord Rennard]

My Lords, in 2005, together with my noble friend Lord Razzall, I was responsible for the Liberal Democrat general election campaign. The manifesto for that campaign contained a commitment to fixed-term Parliaments and specified terms of four years. Obviously I have changed my mind, and I should like to give the Committee three good reasons why I have done so. However, before I do that, I would point out to some noble Lords opposite that only last year they fought a general election on a manifesto promising that, if re-elected to government, the party would legislate for fixed-term Parliaments. The party has still not said how it would have legislated to “ensure” that there would be fixed-term Parliaments, and made no mention whatever of what the term of those fixed-term Parliaments would be. If the case for four years rather than five years was so absolutely clear cut, as suggested by some noble Lords opposite, I wonder why it was not included in the Labour Party manifesto of only last year.

The first reason why I think I have changed my mind is through simply looking at the balance of a five-year term for a Parliament and how much of that time might be spent governing or how much doing anything else. My noble friend Lord Marks of Henley-on-Thames referred to the case for more pre-legislative scrutiny. I feel quite strongly that in the circumstances we have in this year in this Parliament, our legislation would be rather better if there was more draft legislation and more pre-legislative scrutiny, and I hope that when fixed terms of five years become the norm, there will be more of a case for such scrutiny in the first year of a Parliament, which would be good for the governance of the country.

[Lord Falconer of Thoroton]

Knowing that this Parliament is going to last for five years, surely there is time for pre-legislative scrutiny of this Bill. Why does the noble Lord not support that position in relation to this Bill?

--- Later in debate ---

[Lord Rennard]

In this Bill, we do not necessarily know whether we will have five-year terms or not. If the noble and learned Lord has his way, we will have four-year terms, not five years.

[Lord Falconer of Thoroton]

Am I given to understand that the reason for not giving this Bill any pre-legislative scrutiny is fear that it may not get through?

[Lord Rennard]

No, indeed. There are many things that require considerable scrutiny. But it seems to me that the actual principle of a fixed-term Parliament has been considered a number of times in a number of ways. I happen to think, for the reasons I am trying to advance, that five years is more logical. The first reason is that the first year of a Parliament would, more normally in the future, provide more time for draft legislation and pre-legislative scrutiny. As we all know, the last year of a Parliament tends to be given over to government campaigns rather than legislation. If we had only four years and the first year was dominated more by pre-legislative scrutiny and the last year dominated more by campaigning, only two years of government out of the four would be effective. That, as my noble friend Lord Marks of Henley-on-Thames said, is the problem with the US system. There, the period is four years, but everybody knows that in the first two years the President governs and then, after the mid-term elections, the second two years are all about campaigning for re-election.

There are two other points which are quite significant. They have not been made in this debate and some noble Lords opposite may wish to address them.

--- Later in debate ---

[Lord Rennard]

My Lords—

[Lord Falconer of Thoroton]

I am not going to give way, if you do not mind. As I say, the Government were given the opportunity to put these things together but they did not take it. It seems to me that the consequence of not taking that opportunity is that when Parliament debates these issues again on the Fixed-term Parliaments Bill or on Lords reform, we will not regard ourselves as bound by the previous decisions that have been made—for example, we might conclude that four years was better than five for a fixed-term Parliament—because the Government explicitly refused the opportunity to put these constitutional reforms together despite the fact that they were urged to do so not just by the Opposition but by the cross-party constitutional committees in both Houses of Parliament.

I shall be interested to hear the noble and learned Lord’s view on how we deal with possible inconsistencies between one of the Government’s constitutional reform package Bills and another. Presumably, that is done by amending the later Bill when we see what the right answer is. I now give way to the noble Lord, Lord Rennard.

[Lord Rennard]

I wonder whether the noble and learned Lord is being consistent in his arguments. There seemed to be a lot of criticism of the fact that in previous legislation two items were put together—the voting referendum and the constituency boundaries. Now he is suggesting that the third item—this Bill—and House of Lords reform should all be put in the same package. I do not understand his argument. I was simply suggesting that when we have decided things we should try to be consistent about them.

[Lord Falconer of Thoroton]

As regards the AV referendum and the parliamentary boundaries, we saw what was proposed in relation to both of those. The issue was whether they both needed to be included in one Bill. We knew what the proposals were.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Monday 7th February 2011 Lords Chamber

[Lord Falconer of Thoroton]

I do so for two reasons. First, if one reads Mr Bryant’s speech, one sees that he made it clear that this was a matter for the Lords to form a view on. Secondly, the amendment moved by my noble friend Lord Rooker does not provide that the proposal would automatically fail, which was what was voted on in the Commons. My noble friend has come up with what seems a sensible conclusion to make the referendum an advisory one, which, as noble Lords have heard from the quotes from the Constitution Committee, is the norm in our country. My noble friend has found a way through in relation to that.

This is important. We were unsure what our position should be precisely on the point made by the noble Lord, Lord Tyler. We had a different position in relation to a drop-dead referendum, where, if you did not get a 40 per cent turnout, that would be the end of it. Instead, my noble friend has found a way through that.

I have listened with interest and respect to what was said by the noble Lord, Lord Alderdice, about the Northern Ireland position and to what my noble friend Lord Reid said. My view is that we are dealing with a voting system for the whole of the United Kingdom. Once one accepts the proposition that there needs to be something special in order to justify this change, there has to be support throughout the whole of the United Kingdom, which obviously includes Northern Ireland. Although I listened with respect, I do not think that the reason given means that the simple solution that my noble friend Lord Rooker has produced is inadequate.

The noble Lord, Lord Hodgson, said that there would be a differential turnout in relation to this referendum because there will be local, Scottish Parliament or Welsh Assembly elections in some parts of the country but not in others. If you have a UK-wide threshold for turnout, that assists in making sure that the differential turnout does not affect the result.

The Opposition support the noble Lord, Lord Rooker. We believe that what he has said will promote acceptance of AV, if that is the change, which is good for the country. If there is a majority among those who vote, but the 40 per cent threshold is not reached, it will then be open to Parliament to conclude that that is sufficient, but the matter would have to come back to Parliament. There would have to be a piece of primary legislation; it would not depend just on a statutory instrument. My noble friend’s proposal does not rule out—

[Lord Rennard]

Is the noble and learned Lord suggesting that it would be open to Parliament in that event to reject the result of the referendum if, say, on the mathematics that I have just worked out, 13.5 million people voted yes in the referendum—a greater number than have voted for any Government in recent general elections—and 4 million people voted against? If so, the will of 13.5 million people voting yes would not count, while the will of 4 million people voting no would. Ultimately, he says that the matter would go back again to Members in the other place to decide what the voting system should be for voters, rather than leaving it for the voters themselves to decide what system they have for choosing their elected representatives.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Monday 31st January 2011 Lords Chamber

[Lord Rennard]

Will the noble and learned Lord tell the Committee whether it is his view and, perhaps, that of his party, that on the completion of a boundary review by the independent boundary commissioners, he thinks it wise to go back to Members in the other place to ask them to vote on whether they should accept the recommendations of the independent Boundary Commissions on the new boundaries or simply to have the old boundaries—which, by then, will be even more out of date—from the previous general election? Is that not merely postponing an argument which will be even more fierce in another place in a couple of years’ time, or whenever it is, as we are invited to debate whether to accept the boundary recommendations of the independent commissioners or to keep the old ones? Is that not merely creating more of a problem?

[Lord Falconer of Thoroton]

I am very disappointed that the noble Lord, Lord Rennard, has responded in an incredibly unconstructive way. The noble Lord, Lord Williamson of Horton, has made it absolutely clear that what he envisages is a vote on the principle in relation to the issue and that is what we should be focusing on.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Monday 20th December 2010 Lords Chamber

[Lord Rennard]

Does the noble and learned Lord agree with me that all previous Boundary Commission reviews—I think that there have been five general reviews since 1944, conducted under Labour and Conservative Governments—have been based on the electoral register as it is, rather than as we would wish it to be: even more accurate and even more complete? Would he perhaps acknowledge the contribution of his noble friend Lord Wills, who was instrumental in improving the accuracy of the electoral register under the previous Labour Government, ensuring for example the provision of the rolling register, so that hundreds of thousands more voters were added to the register in April this year in order to vote in the general election? The system is now rather better than it has been previously, so the register as of 1 December this year will be more accurate than it was previously, and it is a good register on which to base the next Boundary Commission review—certainly better than it would have been otherwise and no different or worse than the previous five Boundary Commission reviews.

[Lord Falconer of Thoroton]

I agree with the noble Lord when he says that it is better than the previous five boundary reviews. I agree with him that my noble friend Lord Wills made a major contribution to that and that we did a lot to deal with the issue. The evidence that I rely on is the March 2010 report of the Electoral Commission. Although the electoral register prepared in April indicated some improvements, the speech that I made earlier indicates the fundamental problems in relation to the register, which the Electoral Commission identified. I would be extremely surprised and concerned if the noble and learned Lord, Lord Wallace of Tankerness, departed from the position of the Electoral Commission in relation to that. Yes, we have made improvements, but there is still a long way to go, in particular in relation to the private rented sector, young people and black and minority ethnic groups. There is a very substantial group of people who are not on the electoral register but who could be if an effort was made.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Wednesday 15th December 2010 Lords Chamber

[Lord Rennard]

In terms of simplicity for the counting areas, does the noble and learned Lord not accept that in Scotland the proposal of the noble Lord, Lord Grocott, would make things rather more complicated? His amendment suggests that the voting areas should be based on Westminster parliamentary constituencies. If the referendum is held on 5 May next year, as is envisaged as a possibility even under the amendments of the noble Lord, Lord Rooker, and if you are counting the votes on the basis of Scottish parliamentary constituencies rather than on the quite different boundaries of the Westminster parliamentary constituencies, it is impractical to have one set of counting areas for the referendum and a different set for the elections to Scottish parliamentary constituencies. Therefore, the reason for the amendment is to try to make it impossible, or at least very difficult, for the referendum to take place on 5 May, and is not in the interests of simplicity, as the noble and learned Lord suggests.

[Lord Falconer of Thoroton]

I take the point in relation to Scotland. That is probably the only place where one can see some logic in the proposals. However, one cannot see any logic in relation to the rest of the UK. Therefore, maybe the answer—and if the noble Lord were to make proposals on this I might support him—is for us to stick with the Scottish constituencies, but leave everything else to be done on the basis of Westminster constituencies. There needs to be some explanation for why this extraordinary procedure has been adopted.

In addition to the points about practicality, there are two others. First, we have to do this without the benefit of the Electoral Commission’s views, because, as the noble Lord, Lord Grocott, said, the commission has said that that would simply delay the referendum. Sadly, the commission has not given this House the benefit of its views on whether this proposal is more practical than the one in the Bill. Secondly, there is a real force in the argument which states that if we are talking about parliamentary constituencies and how they vote in the future, there is a logic and a force in saying, “Let’s see how individual parliamentary constituencies voted”, because, for the life of me, I cannot see the logic in saying, “We’ll disclose how a London borough or the whole of Northern Ireland voted, but we won’t tell you how individual constituencies voted”.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Wednesday 15th December 2010 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, we are debating Amendment 43, which was tabled by the noble Baroness, Lady Hayter, and proposed a turnout threshold of 25 per cent. We are also debating Amendment 44B from my noble friend Lord Grocott, which proposed a 50 per cent turnout threshold. I thought that we were not debating Amendments 44A and 45A from the noble Lord, Lord Elystan-Morgan, which propose 40 per cent, but the noble Lord has, no doubt tempted by the terms of the debate, put forward issues in relation to it. However, we will not come to votes in relation to those amendments until Monday, so it is entirely a matter for the noble Lord, Lord Elystan-Morgan, as to what he says then. We are not debating Amendment 43A, from my noble friend Lord Rooker, which says the vote has to be 1 million votes ahead, and we are not debating Amendment 44 from the noble Baroness, Lady Hayter, which says that there must be a majority in each kingdom of the United Kingdom.

This is an important constitutional debate. I do not go down the route that the noble Lord, Lord Lawson, tempts us down, which is to say that AV is such an appalling system that we really need something very substantial before we change to it. We have to look at this issue on the basis of it being a major constitutional change. Our constitution has developed over the past three decades, whereby a substantial majority in the House of Commons is not regarded as adequate for substantial constitutional changes such as staying in the European Union, devolving powers to Scotland and Wales and, now, fundamentally changing the voting system. That approach to the constitution is reflected by practically every developed democracy in the world whereby something more than the normal vote in Parliament is required. If that approach is the right one, and I sincerely believe that it is the right one—and it is plainly an approach shared by the coalition Government, who have rightly regarded a referendum as necessary before the change is made—we need to dig a little deeper to see what sort of referendum is required to legitimise the change. I emphasise “legitimise”, because what is being required is something that makes the public accept that a significant change in our constitution has legitimacy.

If one looks at the sorts of turnout that one might reasonably expect if the turnout reflected other sorts of votes, one gets an indication of what sort of turnout one might get in this case. Approximately 20 per cent of the electorate in the referendum will also vote in the Welsh Assembly or Scottish Parliament elections; roughly the turnout for those is about 50 per cent, so 20 per cent of 50 per cent equals 10 per cent of the population voting. Approximately 60 per cent will vote in local authority elections, where the average turnout is 34 per cent, which produces approximately 20 per cent of the population. Some 20 per cent of the population will not vote on anything other than the referendum. It is not unreasonable to suppose that the turnout in relation to those voting only in the referendum could be as low as 20 per cent, which would produce a turnout of 5 per cent of the population. If one adds 10 per cent to 5 per cent to 20 per cent, you get 35 per cent. So on the basis of reasonable estimates by reference to other sorts of elections, you get 35 per cent of the population voting in this referendum. If it was close, that would mean that maybe as few as 19 per cent of the population would have voted for the change. The purpose of having a special rule about major constitutional change—and I have not heard anyone dispute that this is major constitutional change—is that there should be some special procedure to give the change legitimacy.

The idea that 19 per cent of the electorate, voting in favour of the change, gives the degree of legitimacy that is required seems to be wrong. In those circumstances, it looks pretty obvious that something else is required other than simply a referendum. The importance of having legitimacy is that we do not want to enter a phase in which our constitutional system of voting changes every time there is a change of government. If, therefore, there is to be a change—I do not need to quote Nick Clegg saying that this is the most important change since 1832—it is obvious that there has not been a change in our voting system for well over 100 years. This will inevitably have an effect on the make-up of the House of Commons. People will regard the system chosen as being a significant contributor to who won the election.

How do we deal with the issue of legitimacy in those circumstances if simply—

[Lord Rennard]

The noble and learned Lord is a very distinguished member of the previous Government, who brought forward the Constitutional Reform and Governance Act. It was carried through the other place before the general election with provision for a referendum on the alternative vote to be held before October 2011. It did not provide any provision whatever for a threshold. Will the noble and learned Lord tell us why that was not considered appropriate by his Government? On the issue of legitimacy, he suggests that it is terribly important that there should be enough people voting to justify anything. Does he recall that that Government in 2005 were elected with 35 per cent of the vote of British people on a 61 per cent turnout? In other words, only about 21 per cent of the electorate voted for that Government. Does he consider that that was legitimate?

[Lord Falconer of Thoroton]

First, I was not a member of the Government that put it forward. I think they were wrong not to have a turnout threshold in relation to it. Secondly, 35 per cent voting for the Government is approximately double the number that could vote for a change in the constitution. The critical point that I am making is that there is not a system in the world in a developed democracy that does not require something out of the ordinary before you make a change in the constitution. Why is that such a common provision right throughout democracies? It is because people understand that to make such a permanent change is much more important than changing a Government—you can throw the Government out in five years or four years, or in our system, even in two and a half years if they lose authority. You are stuck with the change for a long time. So please, on the Benches over there, think not about the result you want, but about what sustains our democracy. A change that comes about through 19 per cent supporting it may not be a change that has legitimate support. So our position—

--- Later in debate ---

[Lord Falconer of Thoroton]

The issue, as posed by the noble Lord, Lord Lawson—correctly, in my view—is whether or not the threshold encourages votes. There have been referendums not only in the United Kingdom; there have been referendums in a whole range of countries. I presume that the Government have done some research on this before responding on the issue of thresholds. What does that research show? The noble Lord, Lord Strathclyde, is shaking his head, looking bewildered and saying, “No, I can’t tell you”. He is saying to me that he regards the idea that the Government would have done any research into this as preposterous.

[Lord Rennard]

Will the noble and learned Lord tell us what research his Government did in the previous Parliament on this very issue before introducing their Bill?

[Lord Falconer of Thoroton]

I was not in the Government at the time. The noble Lord, Lord Tyler, is pointing at me in a rather aggressive way. I was not in the Government then, but the noble Lord, Lord Strathclyde, has access to a range of excellent civil servants who will tell him what the research is. I take it from the remarks that the noble and learned Lord, Lord Wallace of Tankerness, is making from a sedentary position that the Government have not troubled to do the research. He can correct me if I am wrong.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Monday 13th December 2010 Lords Chamber

[Lord Falconer of Thoroton]

The amendment of my noble friend Lord Foulkes identifies a problem that arises from the Government’s plan to combine the date of the referendum with already scheduled polls in the devolved regions and local authority areas across the United Kingdom. Citizens of other European Union member states who are resident in the Untied Kingdom can vote in local government elections. A French citizen living in Leicester will be able to cast their vote in the unitary authority elections on 5 May. An Italian citizen who lives in Newcastle upon Tyne will be able to do the same, as will a Spaniard in west Somerset.

Those who are resident in Scotland and Wales, by virtue of their residency and not their citizenship, may vote in either the Scottish Parliament or the National Assembly for Wales elections. Consequently, a German citizen who lives in Cardiff will be able to vote for his local AM in May, as a Belgian in Edinburgh will be able to vote for her local MSP. However, when any of these people go to the polls next May, they will not be eligible to cast a vote in the Government’s proposed referendum. The consequence, as the noble Lord, Lord Tyler, so emphatically and eye-poppingly enthusiastically said before supper, of having different electorates for different votes would be terrible. This is what my noble friend Lord Foulkes of Cumnock has indicated is the position.

Clause 2(1)(a) of the Parliamentary Voting System and Constituencies Bill states:

“Those who are entitled to vote in the referendum are … the persons who, on the date of the referendum, would be entitled to vote as electors at a parliamentary election in any constituency”.

This explicitly does not include citizens of other EU member states who are resident in the UK. As my noble friend has argued, there is potential here for administrative confusion. The polling stations in the 80 per cent of the country that will be combining polls on 5 May will be administering multiple franchises. There will need to be two separate lists of eligible voters: one for the referendum and one for the local and devolved elections. This is the argument behind my noble friend’s amendment. I see that the confusion argument has force but I would deal with it differently. I would deal with it on the basis that the answer is not to combine, but to move the referendum to a date other than 5 November.

[Lord Rennard]

5 May.

[Lord Falconer of Thoroton]

What did I say?

[Lord Rennard]

5 November.

[Lord Falconer of Thoroton]

Sorry, it felt like blowing up Parliament. I apologise for the confusion. My noble friend Lord Rooker’s amendment, which was agreed to in this House, provides the coalition with the opportunity to move the date, which it can still take.

My conclusion on behalf of the Front Bench is that we should move the referendum date, not change the franchise for the referendum. If citizens of other EU member states who are resident in the UK cannot vote in UK parliamentary elections, which is the current position, why should they be given a say in which electoral system is to be used in such elections? There is even an argument that, on a question that goes to the heart of the British constitution, citizens of other EU member states should not be able to express a view.

Furthermore, on the basis of reciprocity, we should not allow citizens of other EU states to vote to influence our parliamentary elections, since British citizens are not—as far as I am aware—permitted to take part in elections in any other European Union country apart from Ireland. The reason why Ireland and the UK have reciprocal arrangements has absolutely nothing to do with the European Union; it is to do with history that stretches way back before the EU.

There is an anomaly here but it can be dealt with in the way that has been suggested. It really pains me to disagree with my noble friend Lord Foulkes of Cumnock. We support the same football team. My son was here earlier, wearing the Heart of Midlothian colours. That is why I feel bad about not supporting my noble friend, but I feel unable to do so in relation to this amendment.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Monday 6th December 2010 Lords Chamber

[Lord Falconer of Thoroton]

He has and that is fine. He is not saying necessarily that that is what everyone else has got to do, but the noble Lord, Lord Lamont, is absolutely right in relation to that. What is the thinking of the noble Lord, Lord Tyler? I do not know, but perhaps it was that this would be enough to get the Liberal Democrats on side. Sure enough, it has proved to be the case as far as the Conservatives are concerned. But, ultimately, the problem which the Liberal Democrats say this is to try to resolve is a lack of trust on the part of the electorate in politicians.

[Lord Rennard]

One should consistently want to trust the electorate and give them that decision. I do not think the noble and learned Lord answered very well the points made by my noble friend Lord Tyler. We have heard some persuasive arguments this evening from noble Lords opposite in favour of a multi-option referendum on electoral reform. I just wish we had heard them over the past 13 years when noble Lords were in a position to do something about it. The logical position on these Benches is simply that we would rather trust the people with having some say on the issue than give them no say.

[Lord Falconer of Thoroton]

I am rather confused by this. This is another volte-face. My understanding is that the Liberal Democrats in the negotiations pressed for AV without a referendum, so I am not quite clear why the noble Lord, Lord Rennard, is saying, “Trust the electorate”. I imagine the Liberal Democrats were pressing the Conservatives to agree to no referendum on the basis that they could not trust the electorate to go with what they thought was the right answer.

[Lord Rennard]

Perhaps while the noble Lord, Lord Adonis, is present, he might confirm that the Labour Party pressed on us the idea that it might well legislate for AV without a referendum because it is such a good system.

[Lord Falconer of Thoroton]

I am talking about the Liberal Democrats.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Tuesday 30th November 2010 Lords Chamber

[Lord Falconer of Thoroton]

We lost. In those circumstances, I do not think that relying on what we did justifies you doing the wrong thing.

[Lord Rennard]

Will the noble and learned Lord tell us which alternative vote system was contained in the Constitutional Reform and Governance Bill, which he supported not many months ago, and why his Government chose that particular alternative vote system?

[Lord Falconer of Thoroton]

I never voted in relation to the Constitutional Reform and Governance Bill. I assume the system was the one that is now being put forward.

If we do not have a proper, independent debate—which I believe will carry much more weight with the public—then we have to have the debate here as to which is the right system. It is a distressing aspect of this debate, but inevitably when we raise such issues, instead of the other side engaging with the issues, we get the noble Lord, Lord Tyler, appearing to say to the Cross Benches—I have not read Hansard yet, which I will check—“If you vote in favour of procedural manoeuvre, it’ll be 100 per cent elected”. What conclusion are we supposed to draw from that? Then the noble Lord, Lord Rennard, appeared to say, “We have debated this long enough. Let us get on with it”. Let us either debate the issues, or let us have a commission of inquiry to look into what is the right AV system in the context of a timetable, so that the AV vote will take place, but it will be on the basis of proper information. The Front Bench will support the amendment if the noble Lord, Lord Campbell-Savours, puts it to a vote.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Rennard and Lord Falconer of Thoroton

Monday 15th November 2010 Lords Chamber

[Lord Falconer of Thoroton]

Mr Reid, who is the MP for the relevant area, has complained bitterly, as have the MPs for the Isle of Wight and for Anglesey. Far from flying off on my own on the issue, I am reflecting the views of many people who would argue that places such as Anglesey, the Isle of Wight, Devon and Cornwall should have special recognition for their community position. As I have said, the Bill does precisely what the Speaker referred to in 1987, in that it singles out two constituencies that are not to be subject to the formula or description laid down in the Bill but are instead to be given special treatment.

The Bill is public, but the relevant provision in the Bill will affect the specific local interests of the people who live there in a different way from those who live elsewhere in the country. Others in the country who say that they should have the same right should be entitled to argue for it. Their specific interests are also affected. I respectfully submit that the matter is pretty clear. I urge the House not to be motivated by political interests but to listen to the merits of the argument.

Why is the Bill not hybrid? Three arguments have been advanced. It is said, first, by the Clerk of the Public and Private Bills Office that there are no private or local interests engaged here. The relevant Clerk was kind enough to have a conversation with me this afternoon, when I put my arguments to him and he put his arguments to me. Unfortunately, we were not able to reach agreement. I submit that he is wrong. Hybridity does not apply only to cases where a person’s property rights are removed—as, for example, in the nationalisation Bills or the early 19th century railway Bills. Hybridity also applies where the powers, for example, of a local authority are treated differently in one part of the country from another or where the very issue is where local authority boundaries can be drawn.

Many in the House will remember the Charlwood and Horley Bill in 1973, which was a hybrid Bill concerned with whether two parishes should be in Surrey or in Sussex. No one for one minute considered that that was not a legitimate interest on which to found hybridity. The arguments in that Bill were around, “I would like to be in Surrey because Surrey is better than Sussex” or “I would like to be in Sussex because Sussex is better than Surrey”. Do not tell me that that is a property interest. That is an interest about where I want my politics to be conducted and who I want to be my representative. The important point is that that shows that the reference to local interests goes much wider than simply property interests.

Issues might arise about who should be entitled to petition the committee about the terms of the constituency boundary process. Should such an entitlement apply to individuals, or should it apply to, for example, the local authorities for the Isle of Wight, Cornwall and Devon, or to the local MPs? Those issues can be worked out and resolved by the committee adopting a workable procedure, but the key point is that the hybridity process recognises as a legitimate, specific local interest the geographical unit within which you elect your representatives.

The second argument—this is dealt with fully in Mr James Goudie’s advice—is that it is said that it is not the practice to treat as hybrid those Bills that deal with matters of public policy whereby private rights over large areas or over a whole class are affected. If one examines, as I have done, the Bills on which this principle is based, it is clear that the principle is that, if a Bill deals with the whole of a section or an industry, hybridity will not apply even if it deals with different parts in different ways. If, however, some people are left out of the new scheme, that is a classic case of hybridity.

I give two examples on either side of the line. On this side is the Railways Bill 1921, which nationalised all the railway companies but nationalised the Great Western Railway company in a different way from the others. That Bill was held not to be hybrid because it dealt with the whole of the railway industry. On the other side is the Aircraft and Shipbuilding Industries Act 1977, which left out one aircraft builder and was held to be hybrid because it left someone out. On which side of the line does this Bill fall? I have read out the relevant provisions and the Explanatory Notes, which state basically that the two constituencies are to be preserved and kept out of the whole process.

[Lord Rennard]

My Lords, can the noble and learned Lord help the House by explaining the difference between the Bill that we are due to consider today and, say, the Scotland Bill that was introduced in 1998? That Bill, which was brought in by the previous Government and provided for the creation of the Scottish Parliament, also contained measures to change the boundaries of constituencies in Scotland, and in particular to create separate constituencies for Orkney and the Shetland Islands. That Bill, introduced by a Labour Government, was never considered to be hybrid. Can he explain why this Bill should be?

[Lord Falconer of Thoroton]

My Lords, I have cited the example of the Railways Act, which was a piece of legislation that dealt with the whole issue, whereas this Bill does not. This Bill leaves two constituencies out.

Finally, as the noble Lord, Lord Naseby, has pointed out, it has been said that the Commons have not declared the Bill to be hybrid. That is true, but no vote was sought and no application pursued. It is for each House to make its own decision, and I strongly urge this House not to accept that, if the Commons reach such a conclusion, we are bound by it. That would diminish the importance and independence of this House on constitutional issues.

Queen's Speech

Debate between Lord Rennard and Lord Falconer of Thoroton

Thursday 27th May 2010 Lords Chamber

[Lord Rennard]

My Lords, I wish to address the measures announced in the gracious Speech that relate to fixed-term parliaments, the alternative vote referendum and the principle of moving to more equal-sized electorates in constituencies.

As someone who has worked both as a volunteer and a professional in the last 10 general election campaigns, I personally welcome the proposal for fixed-term parliaments in future. It is not just a matter of personal convenience to be able to plan your holidays and work around the known dates of elections nor a matter of assisting everyone involved in planning the campaigns, including the staff, the parties and the media, but an important democratic principle.

It has always seemed unfair that the leader of one political party can choose polling day according to their own party's advantage. Of course, they sometimes make mistakes, such as Jim Callaghan in 1978 or Gordon Brown in 2007. But, by and large, the power to choose polling day based principally on examination of opinion poll or local election data has in the past given an unfair and undemocratic advantage to the party in government. That is why opposition leaders have had good cause to complain. The noble Lord, Lord Kinnock, argued strongly for fixed-term parliaments in 1992. But Labour's addiction to power after 1997 meant that that was one of the many reforms that did not see the light of day in Labour’s 13 years in office, although it resurfaced in its recent manifesto.

Since 1999, we have seen the Scottish Parliament and the Welsh Assembly function well with fixed-term parliaments, no one party having an overall majority, different coalitions being formed and periods of minority government. The sky did not fall in in response to any of that. Many noble Lords will also be aware of how most local authorities function on a fixed-term cycle based on elections every four years. In these councils, even a vote of 100 per cent of the members does not lead to a new set of elections. Councillors simply have to respect the voters’ verdict and make it work over the four-year term.

Fixed-term parliaments work in many countries. In the United States, President Obama knows that he is elected for a four-year term to head the executive branch of the US Government. Nothing can alter that, short of impeachment. The noble Lord, Lord Elystan-Morgan, suggested that perhaps if a Prime Minister dies there should be a new general election, but in the United States if a President resigns or is assassinated, there is no new presidential election—the business of government continues.

There has of course been much debate today on the principle of how a general election might be triggered at an earlier point than the fixed term. My noble friend Lord Tyler pointed out that when introducing fixed-term parliaments for the Scottish Parliament and the Welsh Assembly, the previous Labour Government legislated to require a two-thirds vote for a new election to be triggered. To those who have said today that a Dissolution of Parliament should be triggered by a vote of 50 per cent plus one of the Members, I say that this would mean that we did not have a fixed-term parliament whenever one party, as is usually the case, had a majority. If a Government with a majority can vote for Dissolution and a general election then we will simply hand power back to the governing party to choose the time of the election. The 55 per cent rule is necessary—

[Lord Falconer of Thoroton]

My Lords, is it not the position that the coalition has more than 55 per cent of the MPs, and therefore it can trigger a general election whenever it likes?

[Lord Rennard]

Given the public commitments by both coalition parties, that clearly would not happen. The noble and learned Lord makes a good point, however. When we consider this fully and properly in due course and learn the lessons over this parliament, perhaps the 55 per cent measure will be seen as an insufficient trigger. Perhaps his Government acted sensibly and wisely in the Scotland Act in ensuring that in Scotland, as in Wales and in Northern Ireland, a two-thirds majority is required. For this parliament, though, 55 per cent provides stability.

--- Later in debate ---

[Lord Rennard]

My Lords, I beg to disagree on the basis that if you do not have a percentage like that, you simply do not have a fixed-term parliament. If it is possible for one party with 50 per cent plus one of the seats in the House of Commons to trigger an election, you allow that party, for its own interests, to choose the time of the election, rather than have the fixed term that works in so many other countries.

[Lord Falconer of Thoroton]

I support fixed-term parliaments but I completely fail to understand what is wrong with a provision that says there should be a fixed term for X years, subject to a case where the Government are defeated on an Opposition Motion of confidence.

[Lord Rennard]

My Lords, you see what is wrong with that when you look, for example, at the models of many other European countries, where there are fixed- term parliaments, multi-party coalitions, systems of proportional representation, et cetera. If a Government fall there should always be the provision that it may be possible for another Prime Minister or other parties to form a Government. It is not necessarily logical that if one Prime Minister and one Government fall, you must assume that there will be a new general election. If you have terms of four or five years you must—as in Scotland and Wales, as noble Lords opposite legislated for 12 or 13 years ago—have provision for an alternative Government to be provided. If that is not possible, I accept that you must go to a general election.

My time is almost up and half of it has been taken up by noble Lords in other places. We will return to the very important arguments about the alternative vote referendum and to other points that need to be made in due course.