Parliamentary Voting System and Constituencies Bill

Lord Rooker Excerpts

Monday 14th February 2011 Lords Chamber

Moved by

[Lord Rooker]

2: Clause 7, page 6, line 41, at end insert—
“( ) In section 1(2)—
(a) “the electorate” is defined as those persons entitled to vote in the referendum, as defined in 2;(b) the turnout figure is to be calculated on the basis that 100% turnout is defined as the total number of individuals who are entitled to vote in the referendum, as defined in section 2;(c) and “vote” is defined as votes counted under Part 1 of this Act.”

[Lord Rooker]

My Lords, I shall not detain the House too long. I think that it was generally accepted, after the vote last Monday on Report, that Amendment A1, which the House carried by just one vote and which is now in the Bill at Clause 1(2), requires tweaking. That amendment stated that less than 40 per cent of the electorate turning out meant that the vote was not binding; in other words, it has come back to Parliament, to a Minister. We had a brief discussion across the Floor that the amendment needs tweaking—and I fully accept that, but this is not that tweak.

Clause 8 is binding. That is accepted, and there is no problem about that. The amendment carried last week simply states that it is not binding if there is a turnout of less than 40 per cent, so it is not fatal. It is not a threshold, and it does not wreck the change. The amendment passed last week is a constraint that limits action.

I am moving Amendment 2 today as a result of a very long discussion last Thursday in the Political Reform and Constitutional Affairs Committee in the other place after we had finished our proceedings on the Bill. The witnesses were the Electoral Commission and Professor Johnston. I have to admit that I watched all the proceedings of that committee, some two hours, on Saturday afternoon, so I gave up quite a bit of time. In all honesty, I have to say—and I watched a bit of it twice, just to get it right—that there was a misinterpretation of the amendment this House passed last Monday by the Electoral Commission, some members of the committee and the chair, which was bordering on the wilful because the context always was that of a fatal threshold. In other words, the whole lot failed without a 40 per cent turnout. That is not what the House passed last week. What it said was that if the turnout is not 40 per cent, the referendum is not binding. The implication was that we have to make it discretionary, so that the Minister can come back. If the turnout is 10 per cent, it does not matter what the result is. The Houses of Parliament could still pass it, so it is non-fatal. The whole discussion in the Select Committee was based on the fact that it is a killer threshold. I was quite astonished at that.

The amendment the House passed last week was a compromise between having a consultative referendum and a binding referendum. Frankly, when the Prime Minister was asked about the issue by Christopher Chope last Wednesday at Question Time, he started to say that, generally speaking, in this country, we do not have thresholds at referendums—as I said, this is not a threshold—but generally in this country, we do not have binding referendums either. This is the first we have ever had. I do not know whether anyone has drawn that to the attention of the Prime Minister—and I add that I will be happy to share a no platform with him during the referendum.

This issue goes well beyond what has happened in the past. At no time during the Select Committee discussion was the unbinding bit of the Bill ever raised. The discussion proceeded on the basis that we cannot measure turnout, because there is no national register, and cannot measure what a vote is. That is what the Electoral Commission said to the Select Committee. We cannot measure the turnout because it is too complicated. We do not even know what a vote is because it is not defined. What is a vote? Does that mean we count the spoilt papers as well as those that count? All that was trotted out before the Select Committee without any challenge. Then the size of the register was raised. Given that we have legislated on the basis that by common consent there are 3.5 million people missing from the register and hundreds of thousands of voters entered twice, either as undergraduates or second-home owners, it could be argued that there is a distinct lack of precision about the register in the first place for all purposes, let alone this one.

It seems to me to be reasonable to call the electorate those people defined in Clause 2 as entitled to vote. The vote is those counted under Part 1. That gives clarity. The Bill sets out the electorate in Clause 2, on which we had long debates. The vote is defined as voters who are counted under Part 1 of the Act, namely those who are yes or no. Those are the only votes that count. Spoiled votes do not count. I would have thought the Electoral Commission would have been aware of this, yet it has raised these issues as if, if there is a little doubt about the result, the whole thing is down the plug hole. It is not. It simply becomes unbinding. That is my worry.

To conclude, if it becomes the case—

[Lord Tyler]

Could the noble Lord, Lord Rooker, clarify one point? The Electoral Commission points out that there is some doubt about his definitions. In particular, does he accept that the register may be considerably out of date by the date of the referendum? For example, anybody who has died in the intervening period would, under the terms of his previous amendment, be counted as a no. Every abstention is, effectively, a no when it comes to looking at his threshold. Does the noble Lord, Lord Rooker, accept that the Electoral Commission may not be right about everything but it is correct in saying that his current amendment is defective?

[Lord Rooker]

It is certainly wrong about it being fatal; I will argue that until the cows come home. The Electoral Commission bordered on being wilful. I was about to come to the point that the noble Lord raised, which is a very fair one, about the register. My point is this: after the referendum, when everything is counted, if it comes down to such a fine definition that we have to look at the number of people currently on the register who died or left the country before 5 May—in addition to such elements as foreigners who are able to vote in some elections but not for Westminster—we will have precisely the situation that I seek to avoid in a binding referendum. If all those factors come into play—that is, if the result is narrow and there is an argument over the numbers—it will be the very reason why we should not have a binding referendum in the first place.

My compromise is to say that the threshold should be 40 per cent. My original compromise was that it should all be consulted on. The House threw that out by 17 votes in November. That is my point. If it comes down to the fact that these issues start to matter, we will have a serious problem on our hands. Therefore, if the referendum was not binding, Parliament could then look at it, Ministers could advise Parliament, we could take a rational view and maybe—I fully accept this—still go ahead and introduce AV. This amendment does not stop the introduction of AV. If the circumstances are such that we have that problem, we will also have a problem that is even bigger.

I have listened to what the Electoral Commission told the Select Committee and to the chairman of the committee, who swore blind that she voted for this amendment in the Commons last year. She did not. The amendment in the Commons last year, which was defeated by around 500 votes to a couple of dozen was on a killer, fatal threshold. The Labour Party voted against it and quite right, too. If the threshold was not met, that would be it—the referendum would be off. That is not what this is about. Those who refuse to accept that are being disingenuous about the situation we have arrived at. It is not too late.

In other words, this amendment is directly consequential on what the House passed last Monday. Irrespective of what the Government choose to do in the Commons in the morning, it would be wrong to reject it—I make no assumptions either way—on the basis that the Electoral Commission said that it cannot define “votes” and “the electorate” if we cannot today add this consequential bit to the amendment we passed last Monday. One flows from the other. If the argument is not used tomorrow, this does not apply. However, is it intended that the Electoral Commission brief the Commons and say, “This won’t stand. As we told the Political and Constitutional Affairs Committee last week, ‘votes’ and ‘electorate’ are not defined.”? Since I have made a modest attempt to define them in the context of the Bill, that would be quite wrong. The amendment should be added to what we passed last Monday.

[Baroness Farrington of Ribbleton]

My Lords, I thought I heard my noble friend be told by the noble Lord, Lord Tyler, that not voting would count as a no vote in the referendum. This worries me deeply. With my noble friend’s amendment, Parliament will be able to decide, however many people vote for or against AV. That is my understanding. By not voting, people will not contribute to a no vote barring AV being adopted. It is merely a question of whether it becomes automatically binding on Parliament or whether it becomes something that Parliament can judge. I was deeply worried by the description of the noble Lord, Lord Tyler—

[The Deputy Speaker (Lord Skelmersdale)]

My Lords, the House should remind itself that we are at Third Reading. The amendment has not yet been moved. There will be an opportunity for any noble Lord to address questions to the noble Lord, Lord Rooker, when he decides what to do with his amendment in due course. May I take it that this amendment has been moved?

[Lord Rooker]

I was about to say, “I so move”.

[The Deputy Speaker]

Unfortunately, there is a printing mistake in paragraph (a), which should at the end read,

“as defined in section 2”,

not just, “as defined in 2”.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I cannot indicate what checks are likely to be made. It is obviously easier to check if that happens in the same constituency, but if a person is registered in two far-flung parts of the country, it is not readily obvious as to what check can be made, other than the fact that voting twice is of course illegal. Therefore, if it were somehow proved that that had happened, the person would have to face the consequences set out in the schedule to the Bill.

Paragraphs (b) and (c) of the amendment define 100 per cent turnout as the total number of people entitled to vote in the referendum under Clause 2, and “vote” as “votes counted” under Part 1 of the Bill. As the noble and learned Lord, Lord Falconer of Thoroton, indicated, that means that the turnout figure would not include those who had turned out to vote on the day, but whose votes, for whatever reason, were deemed to be void. That is because paragraph 42 of Schedule 2 to the Bill specifies that void votes should not be counted, albeit they are recorded by the counting officer.

If eligible voters go to the polling station on 5 May and vote, they have in fact turned out, and should be included within the turnout figure, even if their vote is subsequently deemed to be invalid. The noble and learned Lord agreed with that proposition.

The amendment is not ideally worded. It is silent on whether a single independent body should be made responsible for verifying the turnout and whether the 40 per cent figure has been met. It leaves it unclear whether that would be left to the Government or would be a matter for the Electoral Commission. However, despite the drafting issues, it would not be helpful for us to be obstructive, so it will be for Members of the other place to decide whether the amendment and the one that it supports are acceptable.

Perhaps the most important issue raised by the amendment is not what it does but what it does not do. It does not address the problem with the original amendment because it does nothing to change Clause 8(1), which still imposes a legal obligation on the Minister to implement the alternative vote. I fully accept the explanation of the amendment given by the noble Lord, Lord Rooker—that the intention is to make the referendum result non-binding if a 40 per cent turnout is not reached. He is right that it would not be fatal. Nevertheless, it is an important and significant provision. The effect of retaining Clause 8(1) is that the obligation to implement AV will apply even if the turnout is less than 40 per cent.

I am sure that that is not what the noble Lord intended by his amendment. I recognise that this matter should be dealt with before the Bill becomes law. We understand and share the concern that any statutory provision should be technically effective. We are considering the way forward on this issue and will set out our plans when the Bill returns to the other place. It will be for Members there to decide tomorrow how to respond when considering your Lordships' amendments. On the basis that the amendment goes some way to clarifying the position in the light of the earlier amendment, it is not our intention to resist it.

[Lord Rooker]

I am extremely grateful for that response from the Minister. I do not mind whether or not spoiled votes are counted as long as we have clarity and rules.

On Clause 8(1), the “may/must issue”, I fully accept that if this stayed in the Bill according to the wish of the other place, the Government would have to make available, in the exchange of amendments, the discretionary part for the constraint—it is not a threshold—to be made to work. That is all that I seek to do. If it comes down to having an argument about whether or not someone has died in order to determine whether we should have a major change to our constitution, we will have a serious problem on our hands. I am extremely grateful for the way that the Minister has dealt with the amendment. I beg to move.

Amendment 2 agreed.