Community Cohesion

Lord Soley Excerpts

Monday 18th July 2016 Lords Chamber

[Lord Soley (Lab)]

Does the Minister agree that senior politicians, and members of the Government in particular, have a responsibility not to use language that encourages this? During the referendum debate, some adverts and one or two statements—one from a current member of Government, I am afraid—gave people permission to bring out their feelings about ethnic minorities. Frankly, if such feelings are not encouraged, they tend to stay hidden.

[Lord Bourne of Aberystwyth]

My Lords, the noble Lord is right that across the board we all—politicians in all parties, as in the other House—have a role to play and a responsibility to use appropriate language and come together to ensure that we move forward in tackling hate crime together.

Justice and Security Bill [HL]

Lord Soley Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Soley]

My Lords, I intervene as a member of the Delegated Powers and Regulatory Reform Select Committee, to which my noble friend Lord Beecham has already referred and which has been referred to on the other side of the Chamber. I do not speak for the Committee, but I can say quite clearly that we spent some considerable time on this and were very concerned about it. We all know the powers as Henry VIII powers. Whenever we have these, we look at them carefully and with considerable concern about the power of Parliament being sidelined in relation to the power of the Government.

The context of all this is my own involvement in many of these issues, going right back to the 1970s and 1980s when I first started working with some of the legislation dealing with the emergencies in Northern Ireland and with other prevention of terrorism Acts. The tendency in all these things is for the Government to require the extra powers, for reasons which we all understand and are very sympathetic to, because on one side of the equation is the need to deal with the difficult situations but to do so by exercising the proper rule of law, and on the other is the right of Parliament to oversee what the Government have done.

I have made this point before but I make it again simply to reinforce the context of this. If we look at the history of these sorts of Acts, we see that they have a long involvement in the Government taking additional powers, very often in difficult situations, and then extending those powers into other areas. I have referred in the past to the Official Secrets Act 1911. Not long after that Act, MI5 and MI6 were created. However, neither MI5 nor MI6 had a legal existence until the 1980s; we literally did not put them into law. If we look at the prevention of terrorism Acts in the 1970s and 1980s, we see that we often legislated for drastic situations in which we needed to protect the public but did so in a way in which Parliament was increasingly marginalised. I had a great objection to one of the prevention of terrorism Acts, which had in effect a more than Henry VIII power whereby the Home Secretary alone could exclude a person from one part of the United Kingdom to another part without reference to Parliament.

What did the Delegated Powers and Regulatory Reform Committee focus on here? It was on this very issue of the power that the Government are taking. I refer here not so much to the report which my noble friend Lord Beecham has dealt with very well, but to the notes provided to the Delegated Powers Committee: the Home Office and Ministry of Justice memorandum. This is not new material.

Paragraph 47 of the memorandum says:

“It is appropriate to make provision in the Bill for this power”—

that is, the power to define the relevant civil proceedings in a court, excluding the criminal courts of course—

“because it is possible that a case not within the scope of the current definition of ‘relevant civil proceedings’ will arise, such that a CMP is needed for the just consideration of the case to be heard before a different court or tribunal”—

a point that we are all aware of—

“whilst at the same time there is a need to protect national security sensitive evidence from disclosure”.

Again, that is something we are all very aware of. It continues:

“Furthermore, if this happens, the need to provide for the possibility of a CMP in such proceedings will be pressing in terms of time”.

The last sentence says:

“For these two reasons it is considered appropriate to provide for this power, since the changes can be made more quickly than amending primary legislation”.

The concern of the Delegated Powers Committee in this respect was what form of parliamentary control could be had over this sort of extension. This is the sort of creeping power that I have described and which any Government, not just this one, could in the future extend to other courts. The exception in the Bill itself is of course criminal courts. The Delegated Powers Committee took the view that there was no reason why this should not extend to coroners’ courts, even though the Government have, as I understand it, expressed the view that it should not in fact do so. However, there is nothing in the Bill to say that it does not. My worry would be that, given that there is a whole range of issues—including the point just made by my noble friend about trade unions, although this might be less likely in the nature of the information required—this would extend to tribunals as well. It could be extended across the board to many other areas of the law, which would be damaging and dangerous.

In the Delegated Powers Committee report we asked why, if there was urgency of time, we were looking at an affirmative procedure. An affirmative procedure is not fast; nor, incidentally, is the super-affirmative procedure referred to in the constitutional law report by the Constitution Committee, which suggested a super-affirmative procedure to deal with this. That is not a fast procedure either. If we need a rapid response—and I for one accept that a rapid change will be needed at times to deal with a case—one begins to look for a different way of addressing these urgent and difficult situations.

I have often felt, particularly as a member of the Delegated Powers Committee, that we do not really have the best system available to look at delegated powers. We almost need additional ways of doing this, and perhaps there will be a discussion on that when we come to another report issued by the Delegated Powers Committee on another occasion. I would simply say that, in the current situation, a Bill put through both Houses as a fast reaction to this would be a better way of dealing with it, not least because a Bill that is put before both Houses in the expedited system that we are quite used to when dealing with terrorist situations can also have a sunset clause in it. In other words, the action given to the Government and approved by Parliament to allow the Government to take this additional power could have a finite lifespan.

If we suddenly felt that we needed this power for a coroner’s court hearing, for example, there is no reason why a Bill could not be moved through this House quite rapidly and have a sunset clause in it so that it would expire after a certain period of time. We have done that before; we did it with the prevention of terrorism Act in the 1980s, so it is perfectly possible to do this. My concern, and that of most other members of the Delegated Powers Committee, was that this is a very real Henry VIII power that gives the Government great powers which Parliament is not given sufficient control over. That is the history of this sort of legislation. Parliament always needs to be alert to its duty—and it is a duty—to protect the citizens of a country from a Government having excessive powers.

In following up my noble friend’s comments on all this, I would certainly ask the Government for an explanation of why an expedited Bill through both Houses would not be a better option than an affirmative order, whether a super-affirmative order or a conventional affirmative order; or, indeed, whether the Government agree that there is considerable danger in any Government, with the best will in the world, faced with serious problems of the type that we have these days, being content to allow for a situation that is not only not fast—because the affirmative procedure is not fast—but that extends considerable power to the Government, which in most circumstances we would not accept.

[Lord Marks of Henley-on-Thames]

My Lords, I will speak to Amendments 70A and 70B in my name and the names of my noble friends Lady Williams of Crosby and Lord Thomas of Gresford. I speak as a member—a very new member—of the Delegated Powers and Regulatory Reform Committee.

Our amendments are in narrower terms than the amendments tabled by the noble Lord, Lord Beecham, the noble Baroness, Lady Smith, and those of the noble Lords, Lord Hodgson and Lord Dubs. Amendment 70A is prompted by the concern mentioned by the noble Lords, Lord Beecham and Lord Soley. Clause 11(2) and (3) gives the Secretary of State the power to add courts and tribunals to the very restricted list of courts that may hold closed material proceedings. That list comprises the High Court, the Court of Appeal and the Court of Session. That plainly involves the power to add coroners’ courts.

It is in that respect that the Joint Committee on Human Rights took the view that there was no case for inquests to be made the subject of closed material procedures. Not only did the committee reject the argument that coroners were liable to be disabled from conducting full investigations by the exclusion of sensitive material, but it pointed out, rightly in my view, that the use of CMPs in inquests would probably be a breach of Article 2 of the European Convention on Human Rights. That right to life article carries with it a procedural requirement for states to investigate suspicious deaths. On the basis of cases both here and in the European Court of Human Rights, such investigation has to be open and enable the families of the deceased to be involved in the proceedings. Compliance with those requirements would not be possible in any meaningful way where an inquest was held with a CMP.

The Government’s response to the JCHR report was to concede that there would be no inquests held under the closed material procedure. In his foreword to the Government’s response, my right honourable friend Ken Clarke, the Justice Secretary, went further and said that CMPs,

“will only be extended to civil cases in the Court of Appeal and High Court, and the equivalent courts in Scotland and Northern Ireland”.

That is in accordance with the Bill as drafted. That extra concession to exclude the lower courts was rightly made. It is important that this extremely sensitive procedure, where it has to occur, should be managed at the highest level. I suggest that both concessions should be made binding and should not be capable of being removed in effect by executive action.

Even if one could envisage the extension of CMPs to other proceedings, there is no reason, as the noble Lord, Lord Soley, pointed out, why that should not be achieved by further primary legislation. I disagree slightly with the noble Lord in that I would suggest that there is no case based on urgency. It is inherent in the nature of inquests that there is no extreme urgency. Indeed, we have all seen that inquests are frequently adjourned for very long periods to allow other proceedings or investigations to take their course. In the case of other civil proceedings, if CMPs are warranted they can be instituted in the High Court, where a CMP application can be made. As the noble Lord, Lord Beecham, pointed out, the Delegated Powers and Regulatory Reform Committee drew our attention to the scope of the powers conferred so that we in this Committee could appreciate the unconstrained nature and extent of the provision that might be made under them by this or a future Government. I suggest that the committee was right to do so.

Amendment 70B would remove from Clause 11(3)(b) the Henry VIII provision in relation to the power to change the definition of “relevant civil proceedings”. There would be no power for the Secretary of State to amend, repeal or otherwise modify any enactment, leaving the Secretary of State with a power to make only minor provisions, such as those that might be necessary to take into account the passage of other legislation. Taken together with Amendment 70A, this amendment would draw the sting from Clause 11(2) and (3) as it stands. I commend the amendments to the Committee.

--- Later in debate ---

[Lord Reid of Cardowan]

My Lords, I first apologise that I missed the first few speeches because I was unavoidably detained, but I have listened to quite a few of the speeches over the period and I have tried to read as much as possible of these debates when I have missed them. I have been impressed by the commentary on legal matters, matters of process and by the justice side of what the noble Lord, Lord Pannick, referred to earlier—the balance of justice and security—but I am afraid that I have searched in vain for anyone outside of the Front Bench doing anything in detail to analyse the security context. In other words, we cannot possibly judge whether these are appropriate measures in general unless we judge them in the circumstances of today. As the noble Lord just said, the situation with a coalition Government means that we are living in different times from previously, but the situation of living with the threat that we have today means that we are also living in different times from previously.

I have read with great interest the legal commentaries. I have found them outstanding in their quality and certainly outstanding in their quantity. I always defer to noble Lords with expertise in the human rights area and in the legal area on matters of law and advice on human rights, but I hope that noble Lords will forgive me if I do not defer on deciding on matters of security. I would have been horrified when I was Home Secretary had it been suggested to me that the overall strategic position on security and defence, for which the noble Lord, Lord King, and I had responsibility, was better served by having a lawyer decide rather than an accountable politician. Therefore, although this may be a minority speech, it is one worth bearing in mind for those who are speaking to these amendments today, not least on closed material procedures but not exclusively on them.

My starting point is to ask why these proposals are coming forward in the form that they are today. I am not a lawyer. I am a historian and therefore the two important questions to me are “Why is something happening?” and “Why is it happening when it is happening?”. Of course, there can be motivations ascribed. I have heard it said that this is merely mission creep. I have heard that it is the malevolence of the intelligence services: it is their guilt and wish to cover up future proceedings. But there may be a simpler answer: that circumstances have changed, and in particular that the nature of the threat has changed.

I say that on an evening when, unpopular as it may be to certain elements of the press, the chemical weapons and weapons of mass destruction debate seems to have been put back on our front pages. It is now widely recognised that they are sitting just across from Iraq. People are naturally very worried about what would happen if they fell into the hands of some of the terrorist groups at present operating in Syria. That is an example of the nature of the modern threat.

Noble Lords will know that there are two essential elements of threat: intention and capability. After 9/11, there can be no doubt that there are people in the world who have an unconstrained intent to commit unconstrained mass murder, including in this country. Whereas 60 years ago there were states with that intention, they lacked the capability. The scientific and technological basis on which they might operate their intent was limited to CO₂ from the fumes of cars or vans or to Zyklon B canisters. That is not the case today. Chemical, biological and radiological weapons are also capable of extending unconstrained massacre of human beings. That is what has been in the minds of those charged with the security of the country since 9/11—unconstrained intent and unconstrained capability.

The second feature of that, which brings me to the amendments today and the Bill before us, is that there is now a seamless threat. This is not a threat in one country. It is not a threat that appears only in two countries. I did not deal with one threat that was in fewer than two or three countries, and in one it involved people in 29 different countries. If you have a seamless threat, you have to have a seamless response.

We are no longer, if we ever were, an island fortress, not just with cyber but with some of the potential threats that face the citizens of this country, whom the Front Bench are charged with protecting. If we are to have a seamless response, above all it requires absolute trust between those agencies and those Governments who are working together. That trust and dependence are now far greater than 30 or 40 years ago. Therefore, the breach of that trust, inadvertently or otherwise, through institutions or processes, legal or other operations, becomes a huge hole in the creation of a holistic security policy.

I am not suggesting today that any of the ideas that have been put forward or the amendments are necessarily wrong, and I am certainly not suggesting that they are badly motivated. They are not malevolent; they spring from a natural inclination to oversee government, particularly when government exercise powers that are abnormal. Sometimes, they will be based on first principles and sometimes you will ask where the logic to this is, as the noble Lord, Lord Butler, asked earlier. To that particular question I will tell him that there is no logic. It is a political decision taken for political reasons. It is the result of political discussions. It has been decided to concede in order to gain what is left. I do not expect the Minister to say that, but it is obvious to all of us.

At the end of the day, political decisions have to be made. All I want to do today is put in the minds of everyone who speaks, from every background, the experience in making decisions such as this of those of us who have had the privilege—and burden, in some ways—of being charged with the security of the country. It is not because we are Cromwellian in character; it is not because we have a blind spot for mission creep; it is not because Ministers on the Front Bench will not question the agencies—it is quite proper that they do so. It is because the first premise on which they should base the balance of justice and security is an understanding of the security element, as well as the details of the justice element and the justice process.

[Lord Soley]

My Lords, I think my noble friend misunderstands a key point of what we are saying. I agree almost absolutely with everything that he has said—and, indeed, we have discussed this on many occasions before. However, I want to bring the purpose here to his attention. The government document from the Ministry of Justice said that these powers are wanted so that changes can be made more quickly than by amending primary legislation. I know that Parliament and parliamentary control is important to him. However, if he had been Home Secretary, what would he have decided if I had come to him and said, “Look, you need to change this legislation. Ask for an affirmative order, which will take a month or two; try to amend it, which will take a couple of months; or have a quick Bill going through both Houses”? If he would have decided the latter, he is on my side.

[Lord Reid of Cardowan]

The noble Lord knows that I always listened and, for the most part, conceded when he made representations on these matters. I have no problem with what he suggested earlier. I was careful not to attack or to try to criticise any particular amendment. The great omission is not the quality or substance of the amendments put forward, but the fact that we have been debating this in a vacuum.

The noble Lord, Lord Pannick, said that there has to be a balance between justice and security. I completely accept that. It is never an easy balance. There have been times in our history where the security situation has been such that we have had to take abnormal measures to constrain or expedite the justice element of that. I accept that it is much more difficult to perceive that today because we do not have a war. However, there is undoubtedly a conflict of sorts, which is a threat to the people of this country. What if—and I hope to God it is an “if”—something happens which could have been prevented by the exchange of intelligence of which we were not in receipt because we had not maintained trust? I do not just mean the trust of the United States but of all our allies. The great tragedy that was avoided in August 2006 involved intelligence sharing not just between the United States and ourselves but on a much wider basis. Two and a half thousand British citizens were at risk in that single event.

All I ask is that noble Lords and colleagues bear that in mind, so that we do not approach this purely from the position of legalism or legal principles. These principles are extremely important; certainly, do not abandon oversight. However, recognise that lying behind the proposals brought by the Government is a motivation which I at least—having been there and seen it with one or two other noble Lords who are here today—judge more benevolently than some of the critics of the Government.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have tabled these amendments and who have taken part in this debate. The noble Lord, Lord Reid of Cardowan, has given a context to these deliberations. I think that he would agree with us—and I mention here the intervention of my noble friend Lord Lester—that justice or security is not a binary choice. This is a justice and security Bill, not a justice or security Bill. As we deliberate and go through these provisions, it is important that we seek to uphold the national security, which is a responsibility above all on the Executive, and also ensure that the values of justice—which is a cornerstone of what we believe in and what makes us as a nation—are upheld.

The comments of the noble Lord, Lord Reid, may also have some pertinence as we move to the next stage of the Bill, which deals with the Norwich Pharmacal jurisdiction. He pointed to the importance of trust and the consequences of breach of trust.

As an introductory comment, perhaps I may say to the noble Lord, Lord Pannick, that my noble friend and I will write to him about the point he raised about the last set of amendments. I do not think it would be appropriate, when dealing with these amendments, to rerun the arguments put forward for the previous group. However, before Report stage, we will write to noble Lords who took part in that debate.

Understandable concerns have been raised. In many Bills I have taken part in, quite proper discussion takes place about the use of secondary legislation, its appropriateness, the circumstances under which it should be used, and its actual nature. If Amendments 69A or 70 were to be accepted, as my noble friend Lord Hodgson has said, it would remove the order-making power entirely. The question posed by the amendments is this: why do we need the order-making power at all?

Perhaps I may set out why the Government arrived at the approach we have taken in the Bill with regard to the definition of “relevant civil proceedings”. In the Green Paper, the Government consulted on making closed material proceedings an option for any civil proceedings in which sensitive material was relevant. However, the firm steer from the consultation exercise was that the scope of the Bill should be narrowly focused. That was a point made by my noble friend Lord Marks and in the comments of my right honourable friend the Lord Chancellor. After careful consideration of the consultation responses, the Bill provides that closed material proceedings can be used only for hearings in the High Court, the Court of Appeal and the Court of Session. It is in these courts that the difficult cases have arisen, so the Government have defined relevant civil proceedings narrowly in the Bill.

If that is the case, why do we need an order-making power to extend the definition? As was indicated by the noble Lord, Lord Soley, when he quoted from the memorandum that was submitted to the Delegated Powers and Regulatory Reform Committee, the point is that the case for extending CMPs to another civil context may emerge in the future. Where there is a case for change, it is important that there is a mechanism that will allow CMPs to be used swiftly in relevant proceedings. Naturally, we may be asked if we have any particular case in mind. I reassure your Lordships that if there was an obvious example of a difficult area, we would be making the case for its inclusion in the definition of relevant civil proceedings today. But it is possible that difficulties may arise in areas wholly unexpected or unanticipated, and it would then be important that CMPs were available as a matter of some urgency. Noble Lords may be aware that Parliament has already legislated 14 times to provide CMPs in different contexts, and therefore it is not inconceivable that some new context that we cannot foresee today will arise in the future in which they will be necessary.

Perhaps I may say in response to the noble Baroness, Lady Turner of Camden, who asked about employment tribunals, that legislation is already in place with regard to closed material proceedings in such tribunals. Indeed, it was the subject matter of the deliberations of the Supreme Court in the case of Tariq, the judgment of which was reported either last year or earlier this year. The current review of employment tribunals by the Department for Business, Innovation and Skills does not have anything to do with closed material proceedings.

The crucial thing about the power is that it is subject to the affirmative procedure, which means that the exercise of the power would have to be debated and approved in both Houses before being made. Before gaining that approval, the case for change would have to be made to each House on the basis of evidence that is sufficient to convince both Houses. I cannot for a moment imagine that it would be given a clear ride. That is a safeguard and it means that rather than standing here and trying to persuade your Lordships that a broader definition of relevant civil proceedings is needed for the sake of flexibility, the Government will have to put their case at the time of seeking approval of an order.

As has been said, the order-making power has been the subject of scrutiny by both the Delegated Powers and Regulatory Reform Committee, of which the noble Lord, Lord Soley, and my noble friend Lord Marks are members, and the Constitution Committee. The Government appreciate the careful consideration that both committees have given the power. I note that neither committee recommended the removal of the power, but it is fair to note, and as was pointed out by the noble Lord, Lord Soley, and quoted by the noble Lord, Lord Butler, that the Delegated Powers and Regulatory Reform Committee had reservations about the scope of the power. However, it concluded tentatively but nevertheless clearly that it would not recommend that the delegation of powers is inappropriate.

No doubt members of the committee will know better, and I will come on to address the issue of coroners’ courts shortly, but paragraph 6 of its report indicated that one of the concerns was extending the use of this power to those courts.

[Lord Soley]

The key point is that instead of doing it with a delegated power, we do it with a fast-tracked Bill. I hope that the Minister will deal with that because I would point out to him that the information given by both the Ministry of Justice’s own department and the Cabinet Office suggest that it is necessary that it be done quickly. However, that is not in the notes to this Bill. It is almost as though they have not thought about it.

[Lord Wallace of Tankerness]

I certainly will come on to that. Both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee raised means of proceeding as alternatives to the power. The Constitution Committee asked whether the super-affirmative procedure was more appropriate, similar to that set out in Part 1 of the Legislative and Regulatory Reform Act 2006. In particular, that procedure would enable parliamentary representations to be made about a draft instrument and for the Minister to make changes to the instrument in the light of those representations. The Government indicated in their response to the committee that they do not agree with that approach. The powers in Part 1 of the 2006 Act are wide-ranging. Under the order-making power in the Bill, there will be at the heart a simple question: should the CMP procedure under the Bill, then the Act, be available for a particular court or tribunal? The affirmative procedure allows for a straightforward yes or no answer.

As the noble Lord, Lord Soley, has indicated, the Delegated Powers and Regulatory Reform Committee asked what would be the advantage of the affirmative procedure over a short emergency Bill. Another Bill to address a narrow problem may well be unnecessary given that the detail of how CMPs should work will have been discussed during the passage of this Bill. Although such legislation might be passed quickly if the circumstances required it—it is always possible to bring forward emergency legislation—the affirmative procedure may also be exercised in urgent circumstances. While it is not for me to say what the agenda of the Constitution Committee would be, it would not seem to be beyond the wit of appropriate parliamentary committees to consider an affirmative order if one were brought forward.

On the whole, the Government consider that the affirmative procedure has the right mix of speed and accountability. However, in situations like this where people have put forward important points following deliberation in the various committees as to what the balance should be, we should reflect on them. The Government believe that they have struck the right balance, but there has been an important elaboration in the course of your Lordships’ debate of the understanding of what lay behind the committee’s considerations.

UK: Union

Lord Soley Excerpts

Thursday 3rd November 2011 Lords Chamber

Asked by

[Lord Soley]

To ask Her Majesty’s Government whether they have any proposals to inform the public about the advantages of maintaining the union of the United Kingdom.

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

My Lords, the noble Lord, Lord Soley, said at Second Reading of the Scotland Bill that the United Kingdom,

“is one of the most effective political and economic unions that the world has ever seen”.—[Official Report, 6/9/11; col. 234.]

The Government wholeheartedly agree, and my ministerial colleagues and I will do all that we can to make the case for the United Kingdom. I also urge those who support this unique partnership to join the debate and promote its benefits.

[Lord Soley]

I am very grateful for that Answer. Does the noble and learned Lord agree that this message needs to go out not just in Scotland but in England too? There is a very real danger to our nationalism and we need to get out the message that many states around the world envy our stable system, which has brought peace and prosperity to the United Kingdom and is a model for other countries. Does he also agree that this issue is not for any one party or any one part of the United Kingdom?

[Lord Wallace of Tankerness]

My Lords, I certainly agree that this is not for any one party or any one part of the United Kingdom. Judging by the response to my Answer and to the noble Lord’s Question, we all share a common interest in spelling out the merits for the union, which is of 304 years’ duration. I think the question the separatists have to answer is: why separate?

Scotland Bill

Lord Soley Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Forsyth of Drumlean]

I support what the noble Lord, Lord Foulkes, has said. By the way, Second Readings are divisible, but the tradition is that we do not divide the House on Second Readings. This is an important piece of legislation, and I am afraid that this situation is not really for the convenience of those of us who care deeply about the legislation. If everyone took the 15 minutes which the Companion allows, I would have to wait until 2.30 am to hear the views of the only woman Secretary of State for Scotland, who is number 33 on the list. This is a scandalous way in which to treat Members of this House, and important constitutional business.

[Lord Soley]

My Lords, I, too, support what has been said. I have a strong view about this, because I regard it as an important issue for the United Kingdom. It is very important that we do all that we can to preserve the union. I think that, if we deal with Bills like this in this way—at this moment as far as I can see we are likely to go on beyond midnight—it cannot be desirable for the House. I have to say to the government business managers that it is not good business management to end up in this situation. They have brought people back for two extra weeks as well as bringing the House back a week early, and yet we will still be dealing with this probably after midnight.

[Lord Shutt of Greetland]

I hear what the noble Lord says, but there are a lot of people here anxious to speak. There are in fact three dozen such people. Some have come from Scotland—perhaps on the train or the aeroplane—specifically to speak. Therefore, it would be inconvenient if we did not continue. Everything we do in this place is important. I do not think that we should be looking at this in pecking-order terms. We do know that it is convention—just as the noble Lord, Lord Forsyth, said about voting convention—that we first have what is perceived as divisible business. The usual channels agreed this; it may have been some time ago, but it was agreed, and so I think we should proceed.

--- Later in debate ---

[Lord Soley]

I strongly believe in the United Kingdom as an entity. It is one of the most effective political and economic unions that the world has ever seen. It virtually put an end over a relatively short period to the internecine warfare around the area. Importantly, it also launched Britain as the world’s first industrialised, unified economic and political system, which produced great freedom under the rule of law. We should be proud of that and stand up and fight for it.

One of my regrets about today’s debate is that the Government have chosen to put it all into one day. My noble friend Lord McAvoy pointed out that it would make people in Scotland feel that they have been pushed to the end of the day. Although they would be right to feel that, it is also the United Kingdom which has been pushed to the end of the day, because there would be many more speakers here from elsewhere in the United Kingdom—from England, Wales and Northern Ireland—if this had been a two-day, rather than a one-day, debate. That is a serious failing on the part of the Government.

I am also a strong believer in devolution. I think we got it broadly right and that the broad thrust of this Bill is right but I am worried about the development of the nationalistic agenda in Scotland. I have never really liked the push towards nationalism. One of the things that perhaps Alex Salmond needs to recognise is that if you wrap yourself in the flag of one part of the United Kingdom and suddenly start arguing that you can separate in some clean break into just two separate systems, you are forgetting that there are other parts of the system—Wales, Northern Ireland and England. I might add that the people of Shetland do not talk about Scottish oil. They talk about Shetland oil. I have just come back from a delightful holiday in Orkney. I counted in the first four days there no fewer than 14 Norwegian flags. If I was somebody representing Orkney or Shetland I would be insisting on a referendum in Scotland including a referendum on the future of Orkney and Shetland in Scotland. It is one of the reasons I make this point. The Minister will know the importance of the Orkney one.

One of the important points that has been made—I hope the Government will accept it—is that the referendum needs to be held, as I think the noble Lord, Lord Steel, said, under the Electoral Commission for the United Kingdom. It is completely wrong to leave it to the existing government of Scotland to develop the rules and regulations for an election that affects not just Scotland but the whole of the United Kingdom. We should also remind ourselves that in the settlement on Northern Ireland any referendum in Northern Ireland on its future also requires a referendum in the island of Ireland. There is a very strong case for saying that any referendum on any part of the United Kingdom breaking away ought also to be a referendum within the United Kingdom in much the same way we have agreed for Ireland. That has all sorts of dangers. I am not necessarily recommending it, but follow the logic. If you say one part can just break away the changes will be very significant and very dramatic and we should not go down that road. I actually think the Scottish people will be far too sensible to do that. At the end of the day there is not the will for that degree of independence.

I want to make another point about which I also feel very strongly. It is the idea that somehow or other on this island of just 60 million people, where for 1,000 years we have been mixing and interbreeding, you can suddenly come out and say that this person is English, that person is Scottish and that person is Welsh. I often get people saying to me, “You’re English”. I speak with an English accent. I was born in East London so you could say that makes me English. However, if you look at my background it is actually Welsh, Scottish and Northern Irish. What suddenly gives Alex Salmond or anyone else the right to tell me that I am English? If you ask me what I am I do not say English. I have never identified with England as an entity. I identify myself as British and for me that is important. It seems to me that I have a right to vote in a Scottish referendum if I regard myself as Scottish. I am in the process of looking for a house in Scotland. If I get one in time suddenly I will be Scottish and will be able to vote.

This sort of nonsense makes sense in a larger continental entity. If you are in a continent the size of Europe with 400 or 500 million people you can do this but in an island the size of Britain with four nations it does not make sense. I have strong objections to people telling me what my national identity ought to be. Much of my life has been spent in close connection with Scotland. In many ways, as my noble friends will know, the Scottish education system saved me. I left what by any definition was a failing school in East London aged 15 in the early 1950s. I was turned down even by Ruskin College, believe it or not, but I was accepted by Newbattle Abbey College near Edinburgh. I was accepted by Strathclyde University as an adult student even though I did not have the proper qualifications. I was even, I might add, accepted as a bus conductor on what used to be known as Alexander’s Buses in Scotland where doing the Ruchazie, Castlemilk and Easterhouse runs on a Friday or a Saturday night required a great deal of nerve and the recognition that paying your fare on those nights was a voluntary activity, particularly when someone turned round to you and said, “What is a Sassenach doing taking my money off me?”. This nationalism that has suddenly convinced Alex Salmond that he has some great national identity that he can give to the rest of us is profoundly wrong and profoundly dangerous. When national identities break up, they do not always break up neatly; they often splinter, and splintering is dangerous, which is why I mention this issue of where the referendum is really held—not because I recommend it but because I know that that can be the end of the road if you go down that line.

I would like to talk a bit about the tax issue that the noble Lord, Lord Forsyth, mentioned, but at this late hour it would be better if I did not. He is hitting on a very important point about the impact on the union at the end of the day and the similarities between the various parts of the union. One issue that we have yet to face up to—the noble Lord, Lord Sewel, touched on it—is that in a way the United Kingdom was the first invention of a type of federal system, but it was not and could not be a full federal system because, as he said, England is too big compared to the other parts. But we should consider the relationship between the Parliaments and institutions of the various parts of the United Kingdom. That touches on what the noble Earl, Lord Lindsay, said about the report, which again I would have liked to talk about more. We need to do much more work on that. It has often occurred to me that although I would not recommend that this second Chamber became simply a chamber for the regions of Britain, there is a way that we could use it on occasion for debates about the regions. That is particularly true if you develop devolution within England. The problem is that very often it is said that the Scots feel that they are governed by London and that everything is decided down here. You can have a similar conversation in Cornwall and in parts of the north of England. They feel that London dominates. If you look at the population of the United Kingdom, 25 million people are in that south-east corner bordered by Cambridge, Milton Keynes, Oxford and Southampton. Of course that area is going to dominate the rest—but that makes other people in further-out regions, not only Scotland, Wales and Northern Ireland but other parts of England, feel marginalised. I do not think that the answer to that is to have an English Parliament, but the devolution option is a real and sensible one. Then you would need to find ways in which to discuss the matters that affect all of us, which could be one of the roles—perhaps a limited role—of a second Chamber. It is something that we have never really looked at or thought about in any depth.

I want to end on this point. The United Kingdom is immensely important. If we risk breaking it up, it does not follow, as the SNP needs to understand, that it is going to be a nice, neat, clean split. It could be much more splintered and unpleasant than that, and it would certainly lead in my view to many problems that none of us need have. But to win that argument we need to think about the structures again. The noble Earl, Lord Lindsay, is right to spend some time on that. We need to think about the tax issue, because of the differences that that can create. Other noble Lords have mentioned things such as the educational grants and so on; all these things accentuate difference and play into divisions.

The United Kingdom is a very impressive asset for us. It is particularly suitable to an island of this size; we are not a continent but an island, and it is important to remember that. It is those structures that we ought to look at. I do say to the Government, “For heaven’s sake, in future if you do constitutional Bills like this, don’t think that it just relates to that part of the United Kingdom that we are talking about—it relates to all of us, and we all need to have a say on it”.

--- Later in debate ---

[Lord Wallace of Tankerness]

I do not think that my noble friend has that right. The principal point will be whether it is your sole or main residence. As I have just indicated, it is only if you are an individual who does not have a close connection with any part of the United Kingdom that the number of days spent in Scotland will be relevant. We can clearly debate that, as we no doubt will, in greater detail when we come to Committee, but I seek to reassure my noble friend on that. He also said that the SNP would take the power to have new taxes and would implement them willy-nilly. However, the provisions in the Bill make it very clear that the power to have any new taxes will have to be passed not only by the Scottish Government but by both Houses of this Parliament. An order would not be brought forward to this Parliament unless it had the agreement of the UK Government. Therefore, there would have to be negotiation between the UK Government and the Scottish Government before such an order could be brought forward, and it would be subject to an affirmative resolution of both Houses of Parliament.

The noble and learned Lord, Lord Davidson, wished the borrowing powers to be accelerated. My noble friend Lord Younger put his finger on the matter: there is a pragmatic reason for delaying such powers in the context of the current spending review period. The borrowing of the Scottish Parliament would be aggregated with UK borrowing and, given that the borrowing limits have been clearly identified in the current spending review period, we do not think it right to move at this stage to extend the borrowing powers to the Scottish Parliament before 2015. The exception to that—it is perhaps not a proper exception although it is an important point—is that, in response to representations from the Scottish Parliament and the Scottish Government, we have made prepayments, or a sort of cash advance, in terms of the money required to do the preliminary work for the building of the new Forth road crossing. That has been widely welcomed and it is a pragmatic response to the situation.

The noble and learned Lord, Lord Davidson, asked about the administrative burden and cost of income tax powers. Employers and software providers have already made changes to payroll software so that they can operate the existing Scottish variable rate of income tax. Therefore, the existing payroll software provides for a different rate to operate. Additional compliance costs and burdens may arise if the Scottish Government seek to adapt the existing process—for example, to introduce a greater degree of transparency—by requiring the Scottish rate to be separately identified on payslips and P60s. Further costs and burdens could also arise in relation to the treatment of certain tax reliefs.

The noble Lord, Lord Browne, asked about the working group. There is a high-level implementation group, which involves a number of bodies and organisations with an interest in the detailed implementation of the tax reliefs. It has already met three times and is due to meet again in the autumn. There is also a joint Exchequer group involving Ministers in the Scottish Government, the Secretary of State and the Parliamentary Under-Secretary of State. The group will look at the negotiation of the detailed implementation of these plans. I think that it is due to meet again shortly in the autumn. In addition, separate groups have been looking at issues such as tax on charitable giving and other such detailed issues. These groups have already met, and I assure the House and the noble Lord, Lord Browne, that those meetings will continue.

Finally on finance, the noble Lord, Lord Hughes, asked about the workings of the Scottish rate. He asked, as with chicken or egg, which would come first—the reduction or the block grant. Unlike the Scottish variable rate, the Scottish rate of income tax will require an annual decision from the Scottish Parliament. The proportionate amount will be deducted from the block grant and, if the Scottish Parliament does not set a rate, it will not get the money. It will be obliged to set the rate and to do so in good time before the start of the tax year—again, giving proper notice in terms of collection and to businesses which will have to administer the system.

Related to that, the question of bond issuing was raised by the noble Baroness, Lady Liddell. Although the Bill makes provision for that to be implemented—not by having further recourse to primary legislation but by secondary legislation—it will be dependent on the outcome of a consultation, which is either under way or is about to get under way, regarding the merits of going down that road, taking into account some of the points which the noble Baroness raised.

Linked to this is the question of the Barnett formula, raised by a number of noble Lords, including my noble friends Lord Maclennan, Lord Forsyth, Lord Caithness and Lord Younger, and the noble Baroness, Lady Ramsay. Under the proposals in the Bill, as I have indicated, the Scottish rate of income tax will be reduced by 10p. It will then be for the Scottish Government to decide to levy in Scotland. I am sure a number of noble Lords will wish to debate this further. The Government have made clear in the coalition agreement that we recognise the concerns about devolution funding, but the priority has to be to reduce the deficit and to stabilise the public finances.

The noble Lord, Lord Sewel, said that something should be in the Bill about the formula. The position is that the Scotland Act contains nothing about it and that the Bill, if implemented, is neutral about its future. There will be a block grant but the formula to determine it can be done externally to the provisions in the Bill. We have been duly warned by at least one if not two noble Lords that we will have amendments on this. I note that the noble Lord, Lord Foulkes, and others are liable to bring forward amendments on the question of a referendum. A number of noble Lords have pressed a case for the United Kingdom Government holding a referendum on independence. Their argument is that it is in Scotland’s interests to end the constant constitutional uncertainty and that a clear-cut question will produce a clear-cut endorsement of Scotland’s place in the United Kingdom.

I understand the motivation of those who have argued that case. Many, including the Government, would like nothing more than to see an end to the manoeuvring of separation, which for so long has distracted Scotland from the many other opportunities and challenges on which we might more fruitfully and productively focus. As this debate broadens out beyond this Chamber to the political classes, more questions will be put to the SNP Government, as we saw last week, with important speeches by representatives of the CBI. The dangers of continued uncertainty will become more obvious to people across Scotland if the SNP—“rather coy”, was how the noble Lord, Lord Hughes, described it— carries on ducking questions. It will need to be clear about its plans and its timings.

Perhaps it is too ambitious to hope that tomorrow, when he announces his programme for government, the First Minister will start to say something about that. As noble Lords have indicated, there are crucial questions about the euro or the pound, and about whether it would be the European Central Bank or the Bank of England that would have responsibility. My right honourable friends the Secretary of State and the Chief Secretary to the Treasury raised these questions last week. We will continue to press the Scottish Government on these issues. I take the point made by the noble Lord, Lord McConnell of Glenscorrodale, about the importance of all us waking up to the challenges and positively making the case for the United Kingdom, and for Scotland being part of that.

[Lord Soley]

Will the Minister say what his thinking is about the Electoral Commission’s involvement in any referendum?

[Lord Wallace of Tankerness]

That is an important issue. Under present legislation, the Electoral Commission could be involved in a limited way only if the Scottish Government wished to proceed on their own. The commission is building up an expertise in referendums and has much to contribute, not least in helping to frame questions. In making the case for the union, as the noble Baroness, Lady Liddell of Coatdyke, said, we must challenge the independence case, because you cannot be a little bit pregnant and cannot be a little independent—the independence-lite or devo-max, which seems to be somewhat undefined. The noble Lord, Lord Soley, made an important point, saying that in the United Kingdom we have the most effective political and economic union that the world has ever seen. If we had not had it, today’s debate would be about creating it. When you have peoples bound by a common language in one island or closely proximate islands, why would you not want to come together and be a union, certainly when you look around the world and see other islands or peninsulas that are divided? The thoughtful speech by the noble and learned Lord, Lord Boyd of Duncansby, set out the economic, social and cultural cases for union, which are, indeed, set out in the first volume of the first report by the Calman commission. It was a very good exposition of the positive reasons why Scotland should remain part of the United Kingdom, and I entirely endorse what he said: that we cannot frighten people into supporting the United Kingdom and have to give people an aspirational and inspirational reason for why we believe that this valuable union has served Scotland well over the past 300 years and will serve us well into the future.

I conclude by saying that the genesis of this was in co-operation among parties. I believe and hope that that will continue. I have every confidence that it can continue into the future. My noble friend Lord Sanderson said that the test of this Bill would be whether its passing would help or hinder the cause of the United Kingdom. He is absolutely right. That reflects the terms of reference of the Calman commission. They were referred to by the noble Lord, Lord Browne, and were:

“To review the provisions of the Scotland Act 1998 in the light of experience and to recommend any changes to the present constitutional arrangements that would enable the Scottish Parliament to serve the people of Scotland better, improve the financial accountability of the Scottish Parliament, and continue to secure the position of Scotland within the United Kingdom”.

Those were not only the guiding lights of the Calman commission but are the guiding lights of this Government and, I believe, of this House as we approach this Bill. I believe the Bill delivers on that and that in our deliberations in Committee, we can ensure that it does. I commend the Bill to the House.

Privacy Injunctions

Lord Soley Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Wallace of Tankerness]

The noble and learned Lord is right that they must apply the law as it is. It is important, as the report indicates, that openness is a cornerstone of our democracy and with our judicial proceedings and system. If that is departed from, it can be only in the most exceptional circumstances. The report by the Master of the Rolls and his committee also raises some issues of how that commitment to openness might well be enhanced. Clearly, these matters will, in part, form the discussion of the Joint Committee that is to be set up.

[Lord Soley]

I put forward a Bill some 20 years ago on the freedom and responsibility of the press. I think that the Minister will remember the debate. At this stage, I strongly support the Joint Committee but it is a mistake to think that the privacy issue is about just these sexual cases that come up. An awful lot of cases referred then, and do now, to ordinary folk who get caught up in tragic incidents in their lives. Often, it is a death in the family or things of that nature. That is one factor that privacy needs to address. It is not about just the big sexual cases that the press like to report for money; they also arise in those personal life tragedies. I am in favour of the courts deciding the balance between Articles 8 and 10 of the convention, but we will have to look at this in the wider context not just of sexual issues but of the invasion of privacy of people who have suffered tragedies.

Parliamentary Voting System and Constituencies Bill

Lord Soley Excerpts

Tuesday 8th February 2011 Lords Chamber

[Lord Soley]

My Lords, I shall be very brief, but I do not in any way want to underplay the importance of this amendment. So far as I am concerned, it goes to the heart of the problem of this Government. Having won the election, they have decided that they will change the number of Members of the House of Commons to suit their own party political advantage. It comes from the history of the document written by Andrew Tyrie MP and various others, where the suggestion was to reduce the number by 60 or close to that figure in the first five years and then by another 60 in the following five years in order to maximise the Conservatives’ advantage in winning elections. That is what is so profoundly wrong in this.

As I have said on other occasions, it is an invitation not just for this Government but for future Governments of any political complexion to do exactly the same after every election. This is an invitation to gerrymander the House of Commons by the party that wins. I shall not labour the point, but if we were investigating an election in a country emerging from a communist regime where they were trying to assess the size of a House that would benefit the reformed communist party, we would blow the whistle. We are now, shamefully, doing the same.

[Lord Garel-Jones]

Does the noble Lord not consider that it might be fairer to say that what the coalition Government are doing is beginning to deal with the totally unfair built-in advantage that the Labour Party has enjoyed for many years?

[Lord Soley]

I do not accept that. The advantage of my noble friend’s amendment is that it invites a considered response. If the noble Lord is right, although I do not believe he is for a moment, then this is the opportunity to look at it. This is the way that any future Government would, I hope, address the issue. Like my noble friend, I support a reduction of the numbers in the House of Commons, but we should not do it this way. You should not fiddle around with the constitution to suit your own party advantage. This proposal offers structure, which is very important. I give way to my noble friend.

[Lord Howarth of Newport]

Is it not rather remarkable that the noble Lord, Lord Garel-Jones, has just admitted that the motive of the coalition in introducing this legislation is to achieve a more favourable political structure in the distribution of constituencies to the benefit of the Conservative Party?

[Lord Soley]

There is a genuine argument about whether it automatically gives a bigger majority to the Conservative Party because all sorts of issues like turnout and so on have to be taken into account. However, the general view has been expressed consistently ever since Andrew Tyrie wrote his document in 2004 that this would benefit the Conservative Party. That is what it does. So I would say this, particularly to the Members opposite: bear it in mind that you will not be in power for ever and you will then not be in a position to complain about a Government who come in and do the same to you. I shall give way one last time, but I am anxious not to delay the House.

[Lord Garel-Jones]

I am extremely grateful to the noble Lord. Picking up on the point made by the noble Lord, Lord Howarth, will he reflect on the fact that I mentioned the word “fair”? Perhaps he may wish to reflect on why it is that in 1992 the Conservative Party achieved the largest popular vote in the history of this country and was rewarded with a majority of 21, a vote never achieved by the outgoing Labour Government who, I think I recall, achieved majorities in excess of 170.

[Lord Soley]

I invite the noble Lord to read the debates held during the Committee stage, where he will find that those issues were dealt with. I do not want to repeat it all again. I would also say to him that he should read his own party’s literature on this matter since 2004. The arguments are very clearly put in favour of the Conservatives reducing the number of seats not just for fairness but because a reduction would increase their majority. That is a fact, and my concern about it is that any future Government could do the same.

If the Conservative Party is then in opposition, as well as the Liberal party—although why that party is pursuing this is beyond me, because if it was on this side of the House it would fight it fiercely, and its friends in the press would support it—that party would be saying that it was the Labour Party gerrymandering. This is a gerrymandering issue. What my noble friend has done is come up with a structure so that we can take our time and deliberate on very important issues related to the size of the House of Commons. We could do it over time and we would not need to delay the Government getting their Bill. This is a very important amendment that goes to the heart of the problem that the Government have on this. In my view, the position is deeply undesirable and I would love this amendment to be taken in the spirit in which it is intended. It recognises that there is a case to review the size of the House of Commons, but not doing that to the advantage of one or other political party. If my own party tried to do this, I would feel just as strongly about it.

[Lord Falconer of Thoroton]

My Lords, my noble friend Lord Wills’ amendment is back with us by popular demand, having achieved a very supportive hearing and interesting debate in Committee. I would imagine that that is why we are being treated to a guest appearance by the noble Lord, Lord Garel-Jones. We are disappointed that he has not played more of a part in our debates. Had he been here, as my noble friend Lord Soley said, he would have discovered—because these points have been made on many occasions—that the reasons why the Conservatives do not do so well are threefold. First, it is because their vote is spread all over the country; secondly, there are lower turnouts in Labour seats than Tory seats; and thirdly, that yes, there is some inequality, but that is the third and most minor of the reasons. I am glad to see the noble Lord, Lord Garel-Jones, nodding sagely, and I am only disappointed that he has come today, because the result might have been different in the previous vote.

The amendment moved by my noble friend Lord Wills is an attempt to force the Government to face up to the reality that the issues being dealt with in this Bill need proper thought. The Parliamentary Voting System and Constituencies Bill provides for significant changes to the British constitution, significant changes that everyone agrees ought to be properly considered in due time and by those with the expertise and the means to disseminate the many views and opinions on these major constitutional issues. These are matters which everyone agrees need proper consideration and resolution, but they undoubtedly will not get that from this Government.

It is therefore right that Members of your Lordships’ House—like my noble friend Lord Wills, who takes these matters seriously and has a proud record in what he has achieved as a Minister, particularly when he was responsible for constitutional matters, and who not only believes in good process and informed proposals but put those into practice when he was a Minister—should put forward amendments like the one before us now. I ask noble Lords to look at what, if I may say, is the rather idle government amendment tabled in the name of the noble Lord, Lord McNally, which can be found on page 14 of the Marshalled List. A minimum effort has been made in order to have an inquiry and it is almost contemptible in the way it has been done. No effort of any sort has been made, despite accepting the proposition which the noble Lord, Lord Renton of Mount Harry, finds so difficult.

The effect of my noble friend’s amendment would be to provide time for the key questions raised by the contents of Part 2 of the Bill to be answered. It would give the time for the sort of consideration that the constitutional matters at hand deserve, and time that we on this side of your Lordships’ House have been trying to provide. We have given this Bill proper scrutiny, and on this side we have forced the House to provide time to allow that to happen. There are so many things that the Government have not done properly in the Bill: no public consultation, no pre-legislative scrutiny, and no respect for the usual gaps between stages in Parliament. The consequence is that parts of the Bill were not considered at all in the House of Commons. The consequence is a shambles where correspondence from Ministers arrives after we have had a debate. That feels like a corrosive process as far as constitutional change is concerned.

But there is more—and my noble friend Lord Wills made this point very effectively. Noble Lords will know that allegations have been made, not by the Labour Party, although it does make them, but by Members of Parliament who are Conservative, for example, and “Newsnight”. People like that would be regarded as not parti pris. The effect is that these constitutional changes, effectively unheralded by a manifesto and effectively unmandated, would go through with an air of suspicion. The consequence is that, for the first time since the Second World War, the method by which we determine how many Members of Parliament there should be is in the hands of the majority of the House of Commons and in the hands of the House of Lords, which has received 114 new Members since May 2010. Every single one of those Members is delightful and personable, men and women of real merit, whatever party they come from or whether they come from no party at all, but I have the deepest and most profound suspicion that if we counted the numbers we would find that they have increased the coalition’s majority. Looking across the House, I see many delightful new Peers, many of whom have made a major contribution to British public life, but many of them are voting in accordance with a Whip that they receive from the Government. The consequence is that the Government now have the ability to ram through their choice on the size of the House of Commons in such a way that there is real suspicion that it has been done in the interests not of the country but of a party. The consequence is that that aspect of the coalition gets into political play.

The effect of my noble friend’s proposals is that there can be an independent review. We like the noble Lord, Lord Strathclyde, very much indeed, but we wonder whether his justification for there being 600 in the House of Commons—that it is a nice, round number—carries the weight that perhaps it needs when you are trying to persuade people that the reason you have reduced the number in the House of Commons is not for political but for good constitutional reasons.

We support this amendment. We think that a lot of trouble has gone into it and that it has real merit. With respect to the noble Lord, Lord Renton of Mount Harry, I think that it is entirely unfair when he said that the process would go on. I am glad that it was pointed out to him that my noble friend Lord Wills has thought about all the issues that he mentioned.

I very much hope that there will now be a change of heart and that the noble Lord, Lord Strathclyde, one of the most powerful members of the Government, will indicate that we are now going to have a committee of inquiry.

Parliamentary Voting System and Constituencies Bill

Lord Soley Excerpts

Monday 7th February 2011 Lords Chamber

[Lord Soley]

I support my noble friend on Amendments 8 and 9; they are important. I do not want to spend time on this, but I re-emphasise what has been said; on several occasions we have been promised changes and concessions that have been needed throughout the Bill, but we have had nothing. This does not reflect well on the Government; it reflects very badly, and it is a large part of the reason why we have problems on this.

I shall address the issues in the amendment. There is no doubt in my mind that it is important to keep the funding and the financing separate between elections. My noble and learned friend has made that point. The issue is also covered by the Political Parties, Elections and Referendums Act 2000 in that—and I understand that the Electoral Commission has this view—the Act makes it clear that there should always be a distinction between the various elections in the funding available for them. Along with the Electoral Commission, we make the point—I certainly want to emphasise it—that we should continue to make sure that there is a separation in the funding of elections. A referendum should not be muddled up in a party election broadcast that is actually talking about the election of people as opposed to the outcome of a referendum.

The other thing that the Electoral Commission drew attention to—and this was the first time that I had had a chance to think about it—is that Section 127 of the 2000 Act to which we are all referring currently prevents broadcasters from transmitting,

“any broadcast whose purpose (or main purpose) is or may reasonably be assumed to be”,

to further a referendum campaign. That is what we want to avoid, and my anxiety—this is the point that the Minister has to answer—is whether that wording in the Act would cover all aspects of an inclusion of statements about the referendum in any party political broadcast. It would clearly exclude a party political broadcast that focused particularly strongly on the referendum. It would stop a party putting out an election broadcast that focused maybe 50 per cent of the time on the referendum. I am not sure, however, that that section of the 2000 Act would prevent a reference to the referendum in a way that might encourage people to vote one way or the other. For example, the party political broadcast could be almost entirely on that party’s general policies but could end with a statement at the end that, for example, “We also believe that by voting this way or that on the referendum, you will assist our policies”, or, “You will assist this change”. In other words, it is not clear to me that one sentence in that broadcast would be excluded under the 2000 Act. We need some clarity on that.

--- Later in debate ---

[Lord Soley]

I was trying not to intervene but I have to do so in view of what the Minister has just said. The type of statement that would worry me is if the party political broadcast was majoring on, for example, giving more power to the people—which might be about a range of things, local authorities or whatever— and it said, “If you vote this way or that way on the referendum, that will increase your power”. I suppose that we need to go back to the broadcasters on this, but I do not think that that ought to be allowed. The Minister makes a fair point; we want to allow the broadcasters flexibility but they need to be aware that a statement like that would be seen as giving significant support to the referendum one way or the other.

[Lord Wallace of Tankerness]

I am grateful to the noble Lord for the way in which he presents a very tricky and complex issue. I think I indicated that one of the difficulties was the possibility of limiting the ability of a party to show how its position on the referendum formed part of a wider policy platform. The point I have been trying to make is that broadcasters have experience in this matter. It is probably invidious for Governments to decide what goes too far and what is on the right side of the line. There is also a question of whether legislating to such specificity on the content of party election broadcasts could risk limiting a political party’s freedom of expression. I do not think that anyone here would wish that to happen.

Parliamentary Voting System and Constituencies Bill

Lord Soley Excerpts

Tuesday 1st February 2011 Lords Chamber

[Lord Newton of Braintree]

I am not saying that that would happen.

I think that we need to rely on the good faith of the Electoral Commission, which clearly seeks to do everything in an unbiased and impartial way, but making that a statutory requirement would raise a lot of questions that we might not want to answer.

[Lord Soley]

I have considerable agreement with the noble Lord, Lord Newton, on the very difficult issues raised by this profoundly important set of amendments. If my memory serves me correctly, the last time that I discussed the matter with the Electoral Commission, it was talking about preparing a leaflet or pamphlet on this very issue. I think that the same issue came up on Second Reading, too. The difficulty is ensuring that the leaflet is right and unbiased. I phoned the Electoral Commission this morning to find out the latest position and, perhaps slightly worryingly, both the numbers that I normally use and get through on without any trouble were unobtainable. I am sure that there is a very good explanation and that I will be able to get through soon, but that means that I cannot tell the House where the Electoral Commission is up to on this important issue.

The amendments from the noble Lords, Lord Lipsey and Lord Rooker, spell out the right principle that we need material that says, in plain English, what an alternative voting slip will look like and so on. However, as soon as we get into explaining how the system works, we are in much more difficulty. It is very hard to write a leaflet on how a voting system works—particularly how it works in comparison to an existing system—without getting into a minefield of problems about possible outcomes or computations of the effect of one’s vote. There is a lot in Amendment 109A, in the name of my noble and learned friend Lord Falconer, that if we are to go down this road, having the Speaker’s committee involved in the Electoral Commission would be a good idea to provide some political insight. Otherwise, I can envisage that the leaflet that might come out could produce literally thousands of phone calls from political parties and their agents up and down the land saying, “This is biased”. That is only a short step away from the courts. The same point might be made about the amendment of the noble Lord, Lord Phillips of Sudbury—we would get into an absolute minefield.

I hope that the Government will give this serious thought. The Government may already have talked to the Electoral Commission—perhaps they had another phone number that worked this morning that I did not have. I know that the commission is exercised by the issue and is keen both to get the information out to the public about the importance of the referendum and to convey information to people about the different voting system. However, if we are to go down the road of requiring rather more detail on the effect, we have to look much more carefully at Amendment 109A in the name of my noble and learned friend Lord Falconer, which would at least provide for some political control. Without that, the Electoral Commission will, frankly, be hung out to dry and probably crucified as well.

I hope that the Government will give this important issue careful thought, given that, as my noble friend Lord Lipsey said, we have done so little on this and the changes will all come very suddenly. We must make a major effort to convey to the public the importance of this vote. On that point, my noble friend Lord Lipsey is absolutely right. The problem is what should be put into or left out of the leaflet.

[Lord Phillips of Sudbury]

My Lords, I completely support the spirit of this group of amendments. If all goes well—I nearly said “according to plan” but that would be giving a hostage to fortune—and the Bill gets through in time for the referendum to be held in May, there will be no time to lose. I think that every Member of the House concurs with the spirit that, if we are to have a referendum, we should ensure that it works as well as it possibly can and that as many as possible of our fellow countrymen and women take part in it.

I agree wholly with the amendment of the noble Lord, Lord Rooker, which would remove the discretion by simply obliging the Electoral Commission to provide information about each of the two voting systems. If the Government accept Amendment 108 in the name of the noble Lord, Lord Rooker, the first provision in Amendment 110ZZA, in the name of the noble Lord, Lord Lipsey, would be superfluous.

On the point made by the noble Lord, Lord Newton—he cast a fly in my direction, at which I leap—micro legislation is indeed food for lawyers and I am all agin it. However, I consider that the more dangerous provision in the amendment of the noble Lord, Lord Lipsey, in terms of “lawyerisation”, is its second provision, which would require that the leaflet,

“summarise the main arguments for and against first-pass-the-post and the alternative vote”.

There is much more room for lawyers to haggle over that before Her Majesty’s courts than there is over the “impartial and unbiased” provision. However, I suggest that the noble Lord, Lord Lipsey, should sleep on his amendment, given that its only essential provision—that is, the distribution to all households—should be taken care of by the amendment of the noble Lord, Lord Rooker. If the Electoral Commission is required to provide information about each of the two systems, surely that means delivery of information to every house. If there is any doubt about that, a change can be brought forward at the next stage.

I sympathise with the noble Lord, Lord Soley, because I did exactly as he did and had the same rather ghostly result. I tried three Electoral Commission numbers, which were all disconnected. However, I was informed a week ago by the commission that it is not disconnected and that it will definitely produce a leaflet that will be delivered to every household, so perhaps we can sleep soundly on that.

The plain English idea must be a good suggestion. Describing these two systems in the best and most limpid form that John Bull can understand on a bad night is essential. That amendment would be a step in the right direction.

[Lord Davies of Stamford]

My Lords, before getting to the substantive remarks that I wanted to make, as we have heard two interesting speeches I wonder whether it might be in order for the Leader of the House, on behalf of the House itself, formally to draw to the attention of the Electoral Commission the fact that noble Lords on both sides of the House appear to have had considerable difficulty getting in touch with the Electoral Commission by telephone. That is obviously a rather disturbing situation, particularly when everybody agrees that the Electoral Commission must play the key role in keeping the public informed as we move forward towards this referendum—if, indeed, we do. Although it would be nice to think that the staff of the Electoral Commission spent their free time reading Hansard of either House, that may be a rather hopeful assumption to make.

[Lord Soley]

The Electoral Commission staff do read Hansard. Indeed, I suspect that they watch some of the debate live, so perhaps I will soon get a text—I hope so.

[Lord Davies of Stamford]

I hope that, by whatever means, the Electoral Commission will address the issue raised by these two incidents, which hardly look as if they are purely coincidence. If noble Lords cannot get an answer from the Electoral Commission, what are the chances of an ordinary member of the public doing so? I suspect that that is a matter of concern not just to me but to the whole House.

--- Later in debate ---

[Lord Bach]

Following the previous debate, I can move this amendment from the opposition Front Bench comparatively shortly. We believe that it is absolutely appropriate that the Electoral Commission has the lead role in providing the public with educational materials in regard to the alternative vote referendum. That was the position adopted by the previous Labour Government in the Constitutional Reform and Governance Act, which originally contained clauses to provide for an AV referendum, supported by noble Lords from the Liberal Democrat Party but absolutely torpedoed and killed off by the Conservative Front Bench in the wash-up before the election.

We remain of the view that the Electoral Commission is best placed to provide the public with the neutral, factual background information that they will need to make an informed decision in the referendum. There is also no question that there is, as we have debated, a serious need for such background information. As we discussed a few minutes ago, noble Lords may well have read the report of the Electoral Commission on the intelligibility of the referendum question as then posed, which was published last September, following the original proposition put forward in the Bill. Following extensive public consultation, the commission found that the vast majority of UK citizens had only a slim grasp, if any grasp at all, of the choice which is being put to them in the AV referendum which, as my noble friend Lord Grocott quite rightly said in the previous debate—I hate to embarrass him—changes our constitution and may change it for a long time to come. Who knows? On the previous amendment, I quoted various short passages from that report and I shall not repeat them.

There is clearly a need for public education about the concepts and issues at stake in the referendum on electoral reform. Given the current low level of knowledge, it seems clear that the education people receive will shape the way in which they think and have a very great influence on how they then act. I shall not repeat my Irish cautionary tale about the trouble that a referendum commission, or in this case the Electoral Commission, can find itself in, but many such difficulties were outlined in the contributions made on the previous group of amendments. There is no doubt that it is a very difficult line for the Electoral Commission to follow without finding itself in very serious hot water from one side or the other or perhaps both.

The purpose of the amendment is to provide the Electoral Commission with some sort of cover which would insulate it against unwarranted accusations of showing favouritism, for example, to one argument over another. It would provide for a Speaker’s Committee on the Electoral Commission, a body which already exists, as noble Lords will know, and it would have a role in signing off materials which the commission intends, under its broad provisions, to disseminate about the AV referendum. That Speaker's Committee on the Electoral Commission would include, of course, senior Members of Parliament from all the main parties and would be chaired by the Speaker, who has no party affiliation.

That seems to us a sensible proposal which would strengthen the legitimacy of the referendum process and help to ensure that the Electoral Commission does not become embroiled unnecessarily or inadvertently in a political controversy which would tarnish the poll and tarnish the result of the referendum which, as I say, may or may not change the constitution of our country for good. It is a modest proposal but I hope one that may find some support in the Committee, particularly from the Minister. I beg to move.

[Lord Soley]

I referred to this matter in my earlier comments and I am encouraged to make a further comment partly by the speech made by my noble friend Lord Davies of Stamford but also by that made by the noble Lord, Lord Pannick. The problem here is paragraph 9(2) of Schedule 1. Paragraph 9(1) is very clear. It does not put the Electoral Commission in the firing line at all. If the noble and learned Lord, Lord Wallace, who I assume will answer this debate, heard anything of the previous debate he will have heard anxiety expressed in all speeches about the dangers of putting the Electoral Commission in a position where it takes the blame for not getting a balanced view of the two systems. As I have said on a number of occasions, it is very difficult to write a pamphlet describing the two systems without, in some way, being biased. My noble friend Lord Rooker has already touched on this.

There seem to be two ways of dealing with this problem. One is the way put forward by my noble friend on the Front Bench, which is to allow a political committee, the Speaker’s Committee, to be the lightning conductor. That committee would oversee the work that was done and would sign it off and if there were any flak from it, it would not go straight to the Electoral Commission. That is one way of dealing with it.

Perhaps I may suggest another way which came to me when I heard my noble friend Lord Davies speak—I noticed that the noble Lord, Lord Strathclyde, gave a fairly positive response to it—and that is the idea of the two campaigning groups being able to send out a leaflet, at public charge, so that it would be done rather like an election address. Looking back to paragraph 9, sub-paragraph (2) is problematic because that is where the Electoral Commission is required to make judgments about the wording used to describe the system. If we took out sub-paragraph (2)—I do not expect the Minister to respond to this straightaway but he might want to think about it—and simply left in sub-paragraph (1), then the Government could, in this Bill—I suspect that it would not need to go into the Bill—allow for the two campaigning groups to produce the leaflet as described by my noble friend Lord Davies with some sympathetic support from the noble Lord, Lord Strathclyde. That could be sent round, either with the Electoral Commission’s pamphlet or separately—I should have thought it would go with it—and in that way you take the responsibility of describing the two systems other than in a very basic sense which is required in paragraph 9(1), and put the requirement in paragraph 9(2) onto the two campaigning organisations.

I hope I am making myself clear. It is slightly complicated, but I am arguing that the two campaigns will know what they want to say for and against the two systems. If they produce their own leaflets and they are circulated with the pamphlet put out by the Electoral Commission, which they will do under paragraph 9(1), then it leaves the Electoral Commission in the rather tighter position of simply saying that there is a referendum, informing people about it, informing them how to vote, but not getting into the nitty-gritty of the pros and cons or the description of how the two systems might work. That would be left to the two campaigning organisations. That way you would take the Electoral Commission out of the firing line. The alternative way is to do as my noble friend has suggested from the Front Bench and leave the Speaker’s Committee to oversee the leaflet. It seems to me that either of those systems would act as a lightning conductor for the Electoral Commission and not put it in the firing line for what will almost certainly be seen as in some way a biased leaflet. I hope I have made myself clear. Perhaps the Minister would like to think about that.

[Lord Wallace of Tankerness]

I thank the noble Lord, Lord Bach, for moving the amendment. This important amendment follows on from the previous debate and I welcome the contribution of the noble Lord, Lord Soley. As the noble Lord, Lord Bach, said in introducing his amendment, it is appreciated that the Electoral Commission should take the lead role in providing useful factual information. We believe it plays an important role in providing information to the public and there is a governance framework for the Electoral Commission, under the Political Parties, Elections and Referendums Act, which we believe has operated effectively for 10 years. It is also important to recall in the context of this amendment that latterly the Electoral Commission has had the benefit of advice and involvement of representatives from the political parties: the noble Lord, Lord Kennedy of Southwark, for the Labour Party, the noble Baroness, Lady Browning, for the Conservative Party and Mr David Howarth, the former Member of Parliament for Cambridge who represents the Liberal Democrats.

The Speaker’s Committee is an important part of that framework. It produces an annual report to Parliament on the commission's performance, but the nature of the role of the Speaker's Committee is different from that proposed in the amendment. The Speaker's Committee is currently not given any say in how the commission should exercise its powers. It is there to report on the performance of the commission rather than to have a say in the exercise of its powers.

The purpose of paragraph 9(2) of Schedule 1 is to provide legal clarity so that the Electoral Commission can issue information about both the first-past-the-post and the alternative vote systems which it identifies as being necessary to help public understanding of the referendum question. I hope that that goes some way to answering the point of the noble Lord, Lord Soley, which was whether we could delete paragraph 9(2) and leave it to the respective campaigns. Although the respective campaigns will have facility under the free post to put out their argument—no doubt a positive argument for why they wish to retain first past the post or to move to the alternative vote and an argument against the other system—that is clearly not a role that would be appropriate for the Electoral Commission.

Paragraph 9(2) provides a clear legal basis for the Electoral Commission, having identified a need for factual information, to provide it. In his response to the previous debate, the noble Lord, Lord Rooker, said that it could be accused of bias because first past the post was described before the alternative vote. In fairness, if one looks at the electoral question, the question for the referendum, which is part of the Bill, first past the post is mentioned there before the alternative vote, so it is probably not unreasonable that the Electoral Commission should reflect in its information the question which Parliament is debating and which appears in the Bill, published on advice from the Electoral Commission.

--- Later in debate ---

[Lord Campbell-Savours]

All I am saying is that, as an individual Member of the House, I object. Whether it was agreed by the usual channels or not is of no particular interest to me. All I am saying is that I think it is fair and more civilised that we can dine for a full hour.

I would like now to move to Schedule 2. A particular part of the schedule that is of interest to me is the question of the provision of polling stations, which is a matter of considerable controversy in constituencies throughout the country. Rule 13(1) in Schedule 2 states:

“The counting officer must provide a sufficient number of polling stations and, subject to the following provisions of this rule, must allot the electors to the polling stations in whatever manner the officer thinks most convenient”.

Rule 13(2) states:

“One or more polling stations may be provided in the same room”

Rule 13(3) states:

“In England, the polling station allotted to electors from any parliamentary polling district wholly or partly within a particular voting area must, in the absence of special circumstances, be in the parliamentary polling place for that district unless the parliamentary polling place is outside the voting area”.

Rule 9 refers to the use of schools and public rooms:

“The counting officer may use, free of charge, for the purpose of taking the poll—

(a) a room in a school within paragraph (3)”.

Paragraph (3) of rule 9 then goes on to make provision for schools in England and Wales, and in Scotland.

Now, the location of polling stations in individual constituencies—not only in elections, but particularly in this referendum—has a major effect on turnout. We cannot rely on a postal vote system, which some of us have great reservations about anyhow although it was part of the package introduced by the previous Government. Of course, the Government themselves obviously had reservations about what they were doing on postal voting, but it was felt that those changes would bring greater integrity into the electoral system. The question is, if turnout is affected by polling station location, to what extent can the public indicate where they believe polling stations should be situated?

We know that parish authorities very often make representations to local authorities to secure the location. Also, other organisations within individual communities —schools, church groups, women’s institutes and all kinds of voluntary organisations—sometimes make representations. I have found over the years that very often there is indifference within local authorities to the protests of people who object to the location of polling stations, particularly to where they are inconvenient. I remember that, in my then constituency in the county of Cumbria, on occasions I would go to the local authority and say, “Look, provision here isn’t satisfactory”. Very often the local authority was very sensitive, and changes would be made.

I now live in Maidenhead and when I voted on the last occasion I had to drive a tremendous distance, even within the town, to go and vote. When I got there, I found the polling station split into various sections, all of which received electors coming in from various parts of Maidenhead. I believe that is wrong. The question is: what chance does an individual elector have to influence decisions on the location of polling stations?

My view is that there should be some mechanism that is much more substantial than current arrangements for allowing individual electors and organisations to influence the location of these stations, particularly as their location affects turnout, which is now one of the major issues in Britain’s elections. We are seeing progressive reductions in turnout in both general and council elections, so we must find ways of addressing that problem. One way is to increase the number of polling stations. I hope that, in replying to this debate, the noble Lord might comment on this problem which I think arises in many communities.

[Lord Soley]

My Lords, I shall be brief, but I want to raise an issue that has troubled me in the past.

The noble Lord will see that the form for a postal vote—form 2—is prescribed on pages 60 and 61 of the Bill. I should say that he might need some advice from his civil servants because I have never had a clear answer to this question. The form requires the person who wants to use a postal vote to fill in the boxes set out in the form. After the individual has filled in their date of birth in one place, a box is provided for the voter’s signature. Next to that box, it says:

“(voter’s signature) IMPORTANT—Keep signature within border”.

That has always troubled me because many people who vote by post are actually old and infirm, and I have never been quite sure what happens if their signature goes outside the box.

In a sense this is not a minor point because I wonder whether that means that the vote may not be counted, which is what happens if you make other mistakes or put wrong entries on the form, or whether it simply means that the signature may not be able to be read by electronic means. I have always assumed that the reason for keeping the signature within the box is so that it can be read electronically. That might not be right, so if it is not, I am not sure why it is so important for the signature to be kept within the border.

I emphasise the point because I am thinking of the comments made earlier by the noble Lord, Lord Low. I know that you can get a dispensation for this and you do not have to vote this way, but for elderly and infirm people, or for those whose vision is not as good as it was, there is a real problem about staying within the box—indeed, I have been known to stray outside the box once or twice in my career, but not too often.

Again, I know that the Minister may have to take advice on this, but what happens if a voter filling in a form for a postal vote does not keep the signature within the parameters of the box? Is the problem simply that the signature cannot be read electronically but the vote will still be counted because someone will read it manually, or does it mean that the vote will not be counted? Obviously this question does not just apply to this form, but to others as well.

[Lord Kennedy of Southwark]

My Lords, I agree strongly with the comments made by my noble friend Lord Campbell-Savours. While it may not be appropriate to deal with the issue in this Bill, the provision of an adequate number of polling stations ought to be of great concern to the Government. I am lucky because the polling station is in the street where I live, but that is not the case for a lot of people, who have to travel many miles to get to their polling station. The Government ought to look at that problem. At some point in the future—obviously not now—there is a case for a proper revision of electoral law in this country so that it can be brought together for the production of some sort of consolidated Bill.

--- Later in debate ---

[Lord Strathclyde]

I thank my noble friend Lord Crickhowell for bringing that to the Committee’s attention. He obviously felt strongly enough about it to raise it. The noble Lord has no doubt slipped away in his stretch limousine waiting outside your Lordships' House. I can confirm to the Committee, if there was any doubt, that the Leader of the House of Lords no longer has a limousine, at a substantial saving to the Exchequer—a saving which the noble Lord, Lord Myners, when he was a Minister at the Treasury, said would be quite impossible.

The noble Lord, Lord Soley, asked whether the vote of an elector who signed outside the box in a postal voting statement or other statement would be considered. Counting officers should have a process in place to determine such cases. Their system should be able to pick up signatures which are valid but stray slightly outside the box. The noble Lord, Lord Campbell-Savours, asked whether the public can make representations on polling station locations. They can do so.

[Lord Soley]

The Minister slid over that rather quickly. This is an important point and it is what scrutiny is for. He seems to be saying that in certain circumstances a signature outside the box would invalidate the vote. If that is the case, frankly it ought to be stated on the form that if a person strays outside the box, the vote is invalidated. I know that this applies in other situations but it is an important point. If people, particularly the infirm, stray outside the box and it is within the remit of the returning officer to make a judgment on that, if he decides against the person, that person’s vote is invalidated.

[Lord Strathclyde]

My Lords, I said that I would write on some of the more technical points but, as far as I understand it, some discretion must be left to the local officer to decide whether the signature is valid. I am very happy to follow that up in a letter.

Parliamentary Voting System and Constituencies Bill

Lord Soley Excerpts

Monday 31st January 2011 Lords Chamber

[Lord Bach]

In that case, congratulations are in order all round. The point is interesting, but we could improve the register if the referendum was delayed by a number of months, as seems to be the will expressed by the Committee.

As far as voter registration is concerned, noble Lords will recall an Electoral Commission study published this year—it has been quoted before, but I make no apology for repeating it—which states that,

“under-registration is concentrated among specific social groups, with registration rates being especially low among young people, private renters and those who have recently moved home ... The highest concentrations of under-registration are most likely to be found in metropolitan areas, smaller towns and cities with large student populations, and coastal areas with significant population turnover and high levels of social deprivation”.

I do not need to go through the figures again. We have heard before about the percentages of certain groups of our population who are unregistered. It is a sad story that should not be allowed to continue. The point has been made many times that we did not do enough about that issue until late on in our Government; we are asking this Government to do something about it now, particularly as we are moving towards a plebiscite in the form of a referendum, which is very rare in our country, and we want as many people as possible who are entitled to vote to be on the register. In the context of a potentially low turnout, which the House will perhaps want to debate again on Report, the differences likely to result from the unequal participation of social groups such as young people and others could have a major bearing on the outcome of the referendum.

It is very rare that we resort to a referendum in Britain. When we do, we should ensure that it takes place on an even basis. In the interest of fairness, I urge the Minister to consider our amendment with some care. I beg to move.

[Lord Soley]

My Lords, I support the amendment. It touches on two things. The first is the general principle that we need to improve registration. I have argued before that we have something of a postcode lottery in how good registration is from one local authority to another. That general point relates to this debate because the amendment would require that we deal with that before the referendum. I suspect that the Government are concerned only about whether they could do so in time. However, we must start the process.

As an adviser to the Electoral Commission, I have felt for a long time that we need to improve the registration process. I do not think that anybody on either side of the House disagrees with that. My experience is that until we get an agreement on a body that will raise the standard by saying what that standard should be across the country, some local authorities will carry out registration extremely well, others will do so very poorly and others will be in between. We know which local authorities perform well and we know which perform very badly. The in-between group is more difficult to identify. The Electoral Commission must have a duty placed on it to come up with a standard in electoral registration that local authorities must achieve.

Having just filled in my registration form again, I know that the form suggests very heavily that not to fill it in accurately is illegal and that one would risk prosecution. It implies that registration is a legal requirement in exactly the way that was described in the earlier intervention. I would like the Electoral Commission to have a duty to say that all local authorities have to make every effort to get people on to the register. I recognise that there is a time problem in relation to this amendment and the referendum, but I do not see why we should not make a start. We could do that now. It would be possible to say that, given the variable standards at the moment, the small number of local authorities that we know do not make the effort have got to do so. Perhaps we could then build on that for future occasions, when we would expect the Electoral Commission to say that all local authorities have reached a minimum standard.

The issue of underrepresentation in key areas is crucial. We all know that some areas have much greater underrepresentation than others, and we all know that some local authorities in those areas do not make anywhere near enough effort to get people registered. Those are the authorities that we should focus on. It would be very good news if the Government said to the Electoral Commission, “We expect you to send out to those local authorities a note warning them that if they do not raise the standards in their area and do more to make sure that people are on the electoral register—and do that at least as well as the best local authorities—you will continue to breathe heavily down their neck until they deliver the standards that you expect”.

Underrepresentation is a major problem. It has distorted so many issues that we have debated in the Bill that we should not allow it to continue. What troubles me is that the Minister and the Government have made no effort to find a way of addressing the problem. I ask that in due course they take up this amendment and extend it beyond the referendum to a general expectation of local authorities and the Electoral Commission that they apply that standard.

[Lord Newton of Braintree]

My Lords, perhaps I may briefly intervene. I am too often tempted in these debates, but this will, on the McNally score, put him 4-2 ahead of me.

The noble Lord's speech was very interesting. In effect, he distinguished between whether efforts should be made to improve the registration system and the way in which that might be tied to a particular part of the Bill. That is exactly my position. I have no problem with trying to improve the registration system. However, there could be big questions of cost, not least arising from any prosecutions that may take place, for example of large numbers of 16 to 18 year-olds. That prospect appeared to lurk in what the noble Lord, Lord Bach, said. Those issues can be considered on their own merits. What would not be sensible—this is where, for once, I am on the side of my Front Bench—would be to tie those to a provision of a particular Bill as a condition before something comes into effect.

--- Later in debate ---

The Government, as I have indicated in numerous previous debates in Committee, are committed to improving registration rates. We are considering what steps can be taken to support this objective in the context of implementation of individual electoral registration in Great Britain. I have also indicated that a pilot will be launched later this year for local authorities to compare the electoral register against other public databases to identify people who are not currently on the register.

[Lord Soley]

The Minister has said that that will encourage improvement and I understand that. We all have to look for a way in which the Electoral Commission can set a basic standard below which people should not fall. I recognise that this point is wider than the amendment; it is not just a matter of improving it but trying to find a way of setting a basic standard.

[Lord Wallace of Tankerness]

I indicated that the commission's report on performance standards for electoral registration officers in Great Britain showed that just under 96 per cent of electoral registration officers met the completeness and accuracy of the electoral registration records standard this year. So they are already measuring and, against that, they found that just under 96 per cent had made it. I do not think there is any dispute in this Committee about the importance of electoral registration. We wish to pursue pilot studies to compare the electoral register against other public databases so that we can identify people who are not currently on the register. If the trials are successful, we will roll this out nationally to ensure that registration officers are aware of what has been shown up by the trials so that they can better target people to get them on the register. There is a commitment to improve the rate of electoral registration but we cannot accept that the referendum should be postponed, possibly indefinitely, awaiting the kind of certification which this amendment proposes. Therefore, I beg the noble Lord to withdraw the amendment.

Parliamentary Voting System and Constituencies Bill

Lord Soley Excerpts

Thursday 20th January 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, I beg to move that the House do now resume. We had, as everyone in the Chamber knows, 21 hours of debate on this issue on Monday and Tuesday, stopping at 1 pm. We then had another few hours on Tuesday evening and, through Wednesday night into Thursday morning in this sitting, we have now had between seven and eight hours on the Bill. Between now and the date by which the Government have said that the Bill has to be out of Parliament, there are nine legislating days in the Lords. The Bill has been listed for Monday and Wednesday of next week for the Committee stage, making a total of 13 days in Committee.

On the basis that the Report stage takes between a third and half of the time taken in Committee, there are to be between four and six Report days. On the basis that Third Reading takes between one and three days and, because this is an important constitutional Bill, there are the usual gaps between the two stages yet to come—Committee and Report, and Report and Third Reading—there is absolutely no prospect that this Bill will come out of the House on 16 February.

We have offered for the Bill to be split to allow the referendum to go ahead on 5 May, which the Government have said is their desire. We have no desire to stop the referendum. That offer has been rejected by all, up to and including the Prime Minister of this country, and therefore some other solution is required. It is a solution that needs to be negotiated between the parties. The sooner serious negotiations start, the better. I make it clear on behalf of the Labour Party and the Opposition that we are keen to engage in serious negotiations.

This process of going deep into the night should be brought to an end. As I look across the Chamber, I must say, with the greatest respect, that half the people on this side and half the people on the other side are half asleep; probably half the people who are supposed to be negotiating are getting more and more exhausted. There should be an adjournment and cool heads should start to kick in. The way in which the House of Lords always pulls back from the brink is by negotiation. As the noble and learned Lord, Lord Mackay of Clashfern, urged earlier in the day, as the noble Lord, Lord Low, urged during the 21-hour session and again today, and as is the view of many on all sides of the House, we should stop what has been described as legislating until we drop and show some leadership by starting to negotiate. For all those reasons, I urge the House to resume.

[Lord Soley]

I support that strongly. I have watched with growing concern the way in which this has been handled by the Government. It is mind-blowing that the Government, and the two political parties that make up the Government, are prepared to do so much damage to the reputation of the House of Lords.

[Noble Lords]

Oh!

[Lord Soley]

I ask Members to think about this. They know, I know and everyone in this House knows that this is an important constitutional Bill. They also know, as was pointed out a number of times in the debate, including in the debate on the amendment that I moved a couple of days ago, that it is extremely unusual—in fact, I know of no other case of this in a modern parliamentary democracy—for two parties forming a Government to force a decision on the number of seats in the House of Commons where there is neither all-party agreement nor an independent assessment of the needs of Parliament. The Government are not just breaking the rules of normal constitutional procedures; they are breaking the rules of what is normally done in modern democracies. That is why, as I pointed out a few days ago, we look very carefully when we conduct investigations on elections overseas at how those Parliaments are constructed. If they are constructed by one or more political parties trying to dominate the others, they invariably run into trouble and damage the reputation of the whole country.

I say again to noble Lords that there have been plenty of opportunities for serious negotiation. A number of people on this side of the House have made it clear that there is a willingness to accept the referendum; some people are for the alternative vote and some people are against it. The noble Lord, Lord Wills, and I, as well as a number of others, have made the point that we are willing to negotiate quite happily on the number of seats, because we take the view that the House of Commons is too large, just as the House of Lords is too large. But what you cannot do, should not do and should not try to do is to force a position on the constitution with far too little thought and no agreement between the political parties and organisations that are part of it.

[Lord Teverson]

My Lords, I have found that the last few amendments that we have discussed in this House have been dealt with remarkably constructively. However, while on the whole I am a great admirer of the noble Lord, Lord Soley, I think that his intervention at this point is starting to pull things apart again. I ask noble Lords to think again before they intervene at this point.

[Lord Soley]

I thank the noble Lord for his intervention. I am quite happy to accept what he is advising me to do. I simply say, as I said a few moments ago, that the House is doing itself no favours and the Government are doing themselves no favours by not negotiating.

[Lord Rooker]

It seems, on the basis of the intervention of the noble Lord, Lord Teverson, that the style of what has been happening contradicts what I heard the Prime Minister say some hours ago. I thought that I heard him say that the beauty of the coalition was that it was not ideological and that it could do things differently. That was said not in the context of this Bill, by the way; it was in the context of another part of government policy. However, the impression that I get—the noble Lord’s intervention has justified this—is that the coalition has locked in the two parties. I am not party to any discussions, but it seems that even in the face of the evidence neither of them can move, because they are locked in to what they decided.