Parliamentary Voting System and Constituencies Bill

Lord Strathclyde Excerpts

Monday 15th November 2010 Lords Chamber

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, I yield to no one in my affection for the noble and learned Lord, Lord Falconer of Thoroton—apart from Lady Falconer of Thoroton, I expect—but today he has disappointed me in his little piece of parliamentary mischief-making when most of us had expected to be here to discuss the important Second Reading of the Bill. However, late on Thursday, he raised a question not raised by the 650 Members of the other place affected by the Bill—namely, that it be referred to the Examiners on the grounds of hybridity.

The noble and learned Lord built up an unparalleled reputation in the long years of the previous Government: whenever there was a dud case to be put or a hopeless position to be defended, the cry went up from his old flatmate, then in No. 10, “Send for Charlie”. Whatever it was, up he popped at this Dispatch Box to put the case. His charms unfurled, his words dripped honey, but somehow we all knew that he knew what we knew—that the case he was arguing was built on straw. Your Lordships were never fooled then and will not be fooled today.

The noble and learned Lord comes armed with a 28-page legal opinion from the chambers founded by the noble and learned Lord, Lord Irvine of Lairg, and written by Mr James Goudie QC, no less—a close associate of the Labour Party, I understand. After 28 pages, it concludes that it is a fine line but it is arguable that the Bill may be hybrid.

[Lord Clinton-Davis]

The noble Lord has declared an impossible standard as far as James Goudie is concerned. He is a distinguished QC and I invite the noble Lord to withdraw what he said about him.

[Lord Strathclyde]

My Lords, if it is not distinguished to be a close associate of the Labour Party, I withdraw it. None of my other comments was meant to remark on Mr James Goudie’s professional capacity. I said that he was a QC; I stand by that and the House knows what that means.

On the question of whether it is arguable—

[Lord Goldsmith]

I declare an interest as a QC. Is the noble Lord, for whom I have great respect, suggesting that the opinion of Mr James Goudie QC, which we have seen, does not represent his genuine and honest opinion on the matter? If he is not suggesting that, then the remarks he has just made, with respect, are ill-timed and ill-placed.

[Lord Strathclyde]

My Lords, of course I do not say that; nor do I think my remarks were ill-timed or misjudged. I was going to precisely make the case that Mr Goudie QC said that it was arguable that the Bill may be hybrid. Did anyone in the House hear a lawyer say that a case like this was not arguable? And when did the noble and learned Lord, Lord Falconer of Thoroton, fight shy of arguing it?

As is well known and understood, I am not a Silk like the noble and learned Lord or his friend Mr Goudie, but I have spent enough time in the countryside to know a sow’s ear when I see it—and I see it in this Motion. On what do I rest my case? Your Lordships have the benefit of the crisp opinion of the Clerks of your Lordships’ House, who have confirmed the view—a view they had taken even before the Bill was introduced—that this Bill is not prima facie hybrid. Indeed, in the opinion of the Clerk of Public and Private Bills, the Bill, “cannot be hybrid”. Had it been, neither the Clerks of this House nor of the other place, having examined it for that specific purpose, would have let it pass. That letter is in the Library.

Furthermore, my noble and learned friend Lord Mackay of Clashfern wrote in a letter copied to me, the Leader of the Opposition and the Convenor of the Crossbench Peers:

“A hybrid Bill is a public Bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category”.

On that, I am sure that we all agree. He went on to write this short line:

“I can see no ground on which it could be argued that this is a hybrid Bill”.

So what are the facts of the matter? No one’s right to vote is affected. No one’s right to vote is withdrawn. No one’s right to representation is diminished. All that the Bill seeks to do is to ensure that constituency sizes are more equal and that each voter’s voice is more equal. Underneath all the legal argumentation, what shines out from the noble and learned Lord is that equalising constituency sizes upsets the Labour Party. We all know that Labour has long benefited from this system. No one talked about hybridity then and we all know why, don’t we? It seems that the Labour Party is upset that those unique communities in the Western Isles, Orkney and Shetland are protected under this Bill.

[Lord Tyler]

Can my noble friend confirm that, whenever any legislation has referred to the Orkney and Shetland constituency, although that constituency has never been considered to be part of the United Kingdom as a conventional constituency, the legislation has never been treated as hybrid?

[Lord Strathclyde]

My Lords, not only is my noble friend, like my noble friend Lord Rennard, right, but this relates to a Bill on which the former Lord Chancellor advised. The Scotland Act 1998—legislation of a Labour Government—made provision for Orkney and Shetland each to be a separate constituency in the Scottish Parliament and not to be part of any future Boundary Commission review. The noble and learned Lord raised no question of hybridity then. In addition, the same legislation—

[Lord Falconer of Thoroton]

Perhaps the noble Lord could move his guns towards the argument. The reason for that is that the Scotland Bill dealt with the whole of Scotland. This Bill excludes two bits from it. Answer that, please.

[Lord Strathclyde]

My Lords, there was no private interest affected in 1998 and there is no private interest affected today. If the noble and learned Lord really wants to remove the protection that we have put into the Bill, let him make Labour’s case in Stornoway, Lerwick and Kirkwall, but he should not waste the time of this House with these tactics.

[Lord Falconer of Thoroton]

We make it clear that we support those two being exceptions. The question is whether other people should be entitled to argue for being exceptions as well. That is the point that the noble Lord needs to deal with.

[Lord Strathclyde]

Not at all, my Lords. I have brought two qualitative arguments—those of the Clerks of the House of Lords and those of my noble and learned friend the former Lord Chancellor, who have said that there is absolutely no question to answer.

Why has this popped up now? No one raised hybridity in the other place—the place affected by the Bill. No one challenged the legal drafting of the Bill in the other place—the place affected by the Bill. The Motion is a political tactic designed to delay a Bill concerning elections to the House of Commons, which the Commons, after long and careful examination on the Floor of their House, have agreed.

Frankly, the Labour Party in this House has to decide what sort of Opposition it wants to be. Does it want to engage with the great issues that led to its ejection from power and the loss of 100 seats in the other place, or does it want to use the kinds of procedural ploys, wheezes and games that we see today? Does it want to engage in the proper work of this House in scrutinising and revising legislation line by line, or does it want to manufacture time-wasting debates?

More than 50 speakers are waiting to speak on the Second Reading. There is an important issue here. We saw it last week in the vote on the referral of the Public Bodies Bill and we see it today. This House can debate procedure or it can debate substance. There is a great liberty in our procedures and we all want that to be preserved, but I hope that the noble Baroness the Leader of the Opposition and the noble and learned Lord do not intend to try to take this House the way of the other place, where hours are spent debating procedure and many clauses of Bills are never discussed.

[Baroness Royall of Blaisdon]

My Lords, in respect of the Second Reading of the Public Bodies Bill, the House as a whole was debating a matter of extremely important constitutional relevance. That is why my noble friend Lord Hunt of Kings Heath put down the Motion that he did. As with today, it was nothing to do with wasting this House’s time; we were trying to ensure that we acted properly in holding the Government to account.

[Lord Strathclyde]

My Lords, years have gone by when we have not discussed these issues, either of hybridity or special Select Committees. It seems extraordinary that within six months of the Labour Party going into opposition we have had to debate them on three separate occasions. I do not think that anyone in this place outside a few zealots in Labour’s back room wants to see the kind of opposition and government politics that we have seen develop over the course of the past few months.

[Lord Stoddart of Swindon]

I wonder whether the Leader of the House has made an assessment of how long the Examiners would take. Is it weeks or months or days?

[Lord Strathclyde]

My Lords, that would be up to the Examiners, but, based on the precedent set earlier this summer, it would be between a week and 10 days. Everybody knows that this Bill is on a tight timetable, which is precisely why we are discussing this Motion today. Six years ago, the noble and learned Lord, Lord Lloyd of Berwick, submitted from the Cross Benches that the Constitutional Reform Bill, a Bill profoundly affecting this House, which ended centuries of this House’s judicial role, be referred to a Select Committee. The noble and learned Lord, Lord Falconer of Thoroton, condemned that as political mischief-making and strongly urged the House to resist it. Now on a Bill that has nothing to do with this House at all and has been approved by another place—

[Lord Falconer of Thoroton]

The noble Lord is absolutely right, but he will also know that once the Bill was referred to a Select Committee by the noble and learned Lord’s Motion it was made so much better, and I publicly said that. I recanted, but what has happened to him? He supported that Motion.

[Lord Strathclyde]

But on that occasion, the noble and learned Lord did not have the support of the Clerks or my noble and learned friend Lord Mackay of Clashfern. The point is that today he comes forward as the political mischief-maker in chief, hoping to use the strength of his party’s vote as the biggest party in this House to delay your Lordships’ consideration of this important Bill.

The Clerks of this House are clear that this Bill is not prima facie hybrid and “cannot be hybrid”. I submit that if the noble and learned Lord and his friends do not have the good sense to stop this charade, withdraw this Motion and let us all get on with the Bill, your Lordships should put a stop to this outbreak of party-political mischief-making with our procedures and do so decisively.

[Baroness Royall of Blaisdon]

Again, I point out to the House that yes, we are proud to be the biggest party at this moment in this House, but the coalition Benches have a greater majority than we have as a single party. I just wanted the House to be aware of that.

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[Lord Strathclyde]

My Lords, the question before us is whether there is a case for the Bill to be hybrid and whether it affects a particular private interest in a manner different—

[Lord Falconer of Thoroton]

Private or local.

[Lord Strathclyde]

Private or local; I am very happy with that as well. It is whether it affects it in a manner different from the private interest of other persons or bodies of the same category. In the opinion of the noble and learned Lord, Lord Mackay of Clashfern, and many others the right to vote is a public right and the manner and place in which it may be exercised are not private interests. It is on that basis that I agree with my noble and learned friend and with the Clerks of the House of Lords that there are no grounds on which it could be argued that this is a Private Bill.

[Lord Grocott]

My Lords, I listened to the Leader of the House many times when he was Leader of the Opposition and was often almost seduced by his oratory. However, that was not the case on this occasion and I do not think that it was a speech that he will be entirely thrilled about, because it was based almost entirely on suggesting that my noble and learned friend’s argument was spurious, shallow, pointless and simply and avowedly party-political. The noble Lord is nodding, so he is obviously confirming that. I want to comment initially on two points that he made, which are important considerations for the rest of us during this debate.

The noble Lord said that we know “that this Bill is on a tight timetable”. In other words, it has been guillotined quite severely in the Commons; that; of course, is what he hopes to be able to achieve in the Lords. I simply ask him: who is responsible for this Bill being on a tight timetable? The Government have made that decision in the full light of all the information. It is also, presumably, the reason why the Government say that it was not even possible to have pre-legislative scrutiny on this huge constitutional Bill—one which I think the party leader of the noble Lord, Lord McNally, has described as being part of the most important reforms since 1832, with characteristic understatement. Your Lordships need not worry; I am coming to hybridity. I am sure that the noble Lord will deal with that as seriously as I am dealing with the comments that he has been making.

The noble Lord enunciated what I thought a unique constitutional principle—at least as far as I have heard in this House; it was an astonishing one to come from the Leader of the House—in which it is not this House’s business to consider issues which have not been voted on or considered in the other place. He has commented on it enough times to make me realise that this means that large swathes of business under this coalition Government will not be possible for us to discuss, because he knows perfectly well that in the other place large sections of business are frequently not discussed and not voted upon. That is due to timetabling, which obviously took place under the previous Government as it does under this one. But please let us not pretend that he is making a serious constitutional argument that we must not consider it ourselves because it has not been considered by the other place.

I come to a severely practical point on the issue of hybridity, which was partly touched upon in an earlier exchange. No one could seriously argue that this particular clause of this particular schedule did not have characteristics of hybridity: “Preserved constituencies” is all it says. It then lists two constituencies with no explanation whatsoever of why they are preserved. I put this as a procedural point to the Leader of the House; I would have thought that there is clearly no reason on earth why any other constituency that wants to be added to the preserved list should not be able to make out a case for doing so. There are 648 parliamentary constituencies not covered in the preserved list. I shall certainly be trying to persuade this House that Telford is a constituency that should not be interfered with. It is a fast-growing town in the West Midlands, whose population changes much more rapidly than other constituencies. I put only that point to him. I will not develop the argument now—it would not be to the specific point of hybridity—other than to point out that these amendments, should they be tabled, could not possibly be grouped because the nature of the hybridity means that each case is individual and is unrelated to all the other constituencies. That is the basis on which these two constituencies are put down.

If, for the sake of argument, many amendments were tabled making the case for individual constituencies, it could not then be sustained, even if you concede that this clause is hybrid, that it was only a small part of the Bill, as some of the proponents of this not being a hybrid Bill are advancing. If, during the passage of the Bill through this House, other constituencies were added to the “exempt” clause, it would become a much bigger part of the Bill. I put it to the noble Lord the Leader of the House that these are serious questions; the case is certainly serious so far as I am advancing it. There is hardly a constituency in Britain that could not put its case on the basis of its boundaries, its communities and their relationship of the communities to each other.

In passing, we have to acknowledge that all local contribution to this by way of public inquiry, which has always been the case in the past, is being bypassed too; as the noble Lord the Leader of the House has told us, the Bill is under a very tight schedule. I acknowledge that there are different opinions on this, but it is not worthy simply to use the characteristics of normal parliamentary banter, which I enjoy as much as anyone else, in responding to a very serious Motion that my noble and learned friend has tabled which, on the noble Lord’s own admission, will delay the Bill, if that is what it does, by only a week and a half. On a matter of such constitutional importance—the Government’s words, not mine, although on this occasion I agree with them—should we really not be able to delay the Bill by that time in order to establish where there is clear and serious doubt, although the noble Lord will no doubt be able to persuade enough people to his point of view? We should at least have the opportunity of dealing with that question in the proper way by referring it in the way that my noble and learned friend Lord Falconer is suggesting.

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[Baroness Scotland of Asthal]

My Lords, having had the privilege of being in this House for 13 years, I say that this debate is one in which this House, most unusually, should not feel one jot of pride. I have listened with great care to what has been said. I have to say to the Leader, who knows the affection in which I hold him, that this is not his finest hour. I say that because we are faced with a subject of some importance. I have listened to the laughter and watched Members with a deal of disappointment because this subject is not very funny. It is serious, it is important, and it needs and deserves your Lordships’ serious consideration.

I wish to take particular issue with the point raised by the Leader, who made reference to our debate last week on the Public Bodies Bill. That was not a party political debate. The noble Lord will remember that it was, in many ways, led by the former Lord Chief Justice, the noble and learned Lord, Lord Woolf, and every former law officer who spoke did so with one voice.

Let us be frank. This is a real issue that we are asking the House to consider, and it is easy to dismiss what lawyers say as “mere technicality” and say that people are trying to take advantage of points for political reasons. However, there is a reason why they say, “Shoot the lawyers first”; it is because they are the ones who tend to tell people what they do not want to hear. But if not them, who? And if not now, when should we have this debate on hybridity?

The House knows that hybridity can be raised at any stage in the other place and here. This House has rightly received a great deal of praise for the sobriety and the reasoned way in which we conduct ourselves; listening courteously to each other and responding in a way that is right. Is there a real issue of hybridity here? Yes, there is. What is hybridity? In essence, it is about fairness. Should different groups and different individuals be treated differently? That is what hybridity does. We are asking for the House to consider whether the low threshold that everyone has spoken about has been crossed.

When we talk about our constitution, speed may not work to our long-term advantage. Therefore, it is important for us to think soberly. Every Bill that we have spoken of in relation to constitutional importance has had a White Paper, and often a Green Paper, a draft Bill and consideration. This Bill comes to us fresh, new, young and unseasoned, without an opportunity for mature and quiet contemplation. We do have an opportunity to do that. It is a simple question: does the House think that this matter should be delayed by a few days to enable the Examiners to decide the matter one way or the other?

[Lord Strathclyde]

The noble and learned Baroness is the shadow Attorney-General. She cannot say that this is a fresh, new Bill. Her party and her shadow Cabinet have been studying it since June. Why have they taken until now to raise what she calls extremely important issues?

[Baroness Scotland of Asthal]

My Lords, the reason I described the Bill as fresh and new is that with every other constitutional Bill that we have had—the noble Lord knows this—we have had the advantage of a White Paper. We have talked about draft Bills. Pre-legislative scrutiny is something that many noble Lords who sit opposite have spoken about. I do not want to go on any further—the short issue for us is this—

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[Lord Elton]

My Lords, I think that it is our turn. I wonder whether the Front Benches consider that we have now heard as much as we are likely to take in that is relevant and that we should now divide.

[Lord Strathclyde]

My Lords, I do not know whether many of the questions were put to me or to the noble and learned Lord, but I shall be extremely brief. A number of issues have been raised this afternoon. They are important issues that will be raised and dealt with, quite rightly, in Committee—in particular, the questions of the noble Lord, Lord Grocott, concerning Telford—but they have nothing to do with the question of hybridity. I make two very brief points. First, the Bill is not hybrid and, secondly, the motivation behind the Labour Party’s anger is one of delay on this all-important coalition Bill.

[Lord Barnett]

Will the noble Lord give way for a moment? As I understand it, it is only a matter of timing. The Bill is important and the timing is tight. He told us that it would take 10 days if it went to an independent examiner. How long does he think it would take if 400 constituency amendments were tabled in Committee?

[Lord Strathclyde]

My Lords, if the Examiners decided that the Bill was not hybrid, that still could not stop 400 constituency amendments being tabled.

[Lord Myners]

My Lords, it seems to me—