Electoral Registration and Administration Bill

Lord Tyler Excerpts

Wednesday 23rd January 2013 Lords Chamber

[Lord Tyler]

My Lords, I will not detain the House long as I made our position clear in Committee and it has not changed. As I said then, we believe that my noble friend Lord Lexden has hit on a very interesting and important issue about nationality and representation. There is clearly a strong case for some rationalisation and, indeed, for a careful look at the way in which our EU partners handle this issue, as was again said today. At the same time, we must note that the majority of them have a very different electoral system from our own. Here in the UK, we have a system of single-Member constituencies with a special link between an MP and his or her constituents. It is irrational to have people who used to live in my old constituency in north Cornwall, for example, still on the electoral roll 15 years or more after they have left for possibly sunnier climes.

Let me clear up any misunderstanding: every UK election, with the notable exception of European parliamentary elections, is in a sense a local election. Voters in a particular locality decide which local representative would in their judgment best represent their interests and those of that specific locality. It is also true that many local issues, from development threats in that locality to the level of council tax more generally, can be major factors even in a UK parliamentary election. For those who have left that locality 15 or more years ago to have a potentially decisive voice in such an election is illogical. I still remember the occasion when I was elected with a majority of nine. For all I know, that majority of nine came from many thousands of miles away and had no direct interest in that locality and that local parliamentary election.

Last week my noble friend Lord Deben, who is not in his usual place this afternoon, attacked me on this issue in a splendidly enjoyable diatribe. I make it clear: I do not defend or, indeed, reject the single-Member constituency that we have at present in the UK, but it is a fact of political life. Therefore, anything we do on this issue has to take that into the reckoning. If he or anybody else is now expecting a change to a multi-Member or list electoral system for the House of Commons, I am as surprised as I am delighted. However, I do not think that he is.

In the absence of any such reform, we urge my noble friend Lord Lexden to think again about his strategy. If he is to address the anomalies that he has rightly identified, he must take up the issue of an additional constituency for overseas voters. Several contributors to last week’s debate in Committee, including my noble friend Lord Lexden, referred to the French arrangement for overseas voters. Indeed, again, he made very important reference to the experience of French overseas voters. However, the significant point is that they have a separate constituency; they do not interfere with the individual constituencies in mainland France. In those circumstances, we believe that this amendment puts the cart before the horse. We believe that the creation of a separate constituency on the French model—or, indeed, constituencies, if the numbers justify something beyond one constituency—would be a much more appropriate way to make this injustice less of a problem in future. Surely that is the right and only way for the interests of former UK residents to be represented without diluting those of the people who still live in this country.

[Lord Norton of Louth]

My Lords, I support the amendment moved so ably by my noble friend Lord Lexden. It is a novel amendment but a modest one. In Committee, there were essentially two objections to the proposal to extend the 15-year limit on British nationals who live abroad having the vote. A third objection was to the mechanism proposed by my noble friend, which is again before us today.

One objection to extending the 15-year limit was that citizens who have retired to live abroad and enjoy the sunshine of foreign climes had effectively fled the United Kingdom and therefore should not be able to vote—certainly not for any great length of time. My noble friend Lord Tyler referred in Committee to the fact that some people may deem them to have deserted these shores. That is to misunderstand the situation of British nationals living abroad. Most emigrants from this country live abroad for work-related purposes. Some will be moving around the globe for their companies, which may well be UK companies. The fact of living abroad for some years is no proof of leaving the UK on a permanent basis.

My noble friend Lord Tyler raised a second objection, to which he referred again today. He argued that citizens living abroad do not have a clear constituency link, and he queried how an MP could represent,

“people who live perhaps thousands of miles away in a very different economic and social context”.—[Official Report, 14/1/13; col. 481.]

Well, I presume that they can do it in the same way in which they currently represent those who live abroad but have not yet done so for 15 years and are registered to vote. It is perhaps also worth reminding ourselves that the MEPs for the south-west of England also represent Gibraltar, where people live some way away in a different economic and social context.

The other objection was raised by my noble friend Lord Gardiner of Kimble in respect of this particular amendment, on the grounds that it would be unusual to make such a change in secondary legislation. I note that he said “unusual” and not “unique”. In any event, what is involved here is not a new right but an extension of an existing right. Far greater changes affecting individuals are made through secondary legislation than is being envisaged here. What the amendment does is provide some flexibility. In Committee, my noble friend Lord Gardiner said that the question of extending the time limit,

“remains under consideration within government”.

The amendment provides the means to move forward, should that consideration result in recognition that the time limit should be extended.

The grounds for extending the time limit were made in Committee by my noble friend Lord Lexden. As I stressed in that debate, we need to recognise the contribution made to the United Kingdom by citizens living abroad. They are a major source of soft power for the United Kingdom. My noble friend Lord Gardiner acknowledged,

“the continuing loyalty to the United Kingdom of so many who have lived and worked overseas for many years”.—[Official Report, 14/1/13; col. 489.]

We should look upon our citizens around the globe as a continuing asset and not as a body of people to be cast aside and treated as having deserted these shores. If they wish to demonstrate a continuing commitment to the United Kingdom, they should be enabled to do so.

My noble friend’s amendment provides the means for doing so but, at this stage, without commitment. It enables the Government to complete their consideration of the issue. I therefore commend the amendment to the House.

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[Lord Tyler]

The noble and learned Lord suggested earlier that he has some misgivings about the motivations and independence of thought of the Secretary of State in December 2015. Does that mean that he does not expect to be in that role?

[Lord Falconer of Thoroton]

I have to be frank with the noble Lord: I do not expect to be in the role of Secretary of State. I have no idea who the Secretary of State will be. My anxiety was not what I know would be an open-minded and fair approach should it be a Labour Administration—indeed, a Liberal Democrat Administration as well. My anxiety was the coalition’s predilection, should it remain in power, to say, “We think the position is that we should try to bring it back to 1 December 2015”. That is all I was thinking of. That is our position on the carryover.

On proxy and postal votes, my understanding of the logic behind carrying over for one extra year is that you recognise that even though there will be much publicity and support for people to register themselves individually, it will not work with everybody. If that logic applies to individual registration, it is bound to apply to those whose proxy or postal vote you have to carry over. We are surely in a position where we wish to encourage people to vote. If you believe that you have a proxy or postal vote, and then you discover you have not, the likely effect is a reduction in the number of people who can vote.

To my immense disappointment, for reasons he did not adequately explain, the noble Lord, Lord Rennard—this is not a criticism of him—said that he was persuaded by the logic. He did not say why, and I was therefore unable to know why one should be persuaded by the logic. I would be grateful for an explanation from the Minister as to why the logic applies to extending registration to 1 December 2016, where there will be help, but it does not apply where there is a proxy or postal vote. This is an important matter that goes to the heart of our democracy.

However, I do not want to sound churlish, and I am very grateful that there has been extension for the other bit of the carryover to 1 December 2016.

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[Lord Lang of Monkton]

My Lords, as a member of the Constitution Committee and a signatory to the amendment moved by the noble Lord, Lord Pannick, I rise to support not only what he has said but what I hope the Minister is about to say. Indeed, I have cast my notes aside because their tone was such that, had I proceeded, he might have withdrawn what he was about to say.

I am delighted to hear that common sense seems to have prevailed because a vote is a fundamental right in a parliamentary democracy. That is something of which we should never lose sight. Heaven knows, not enough of the electorate cast the votes that they are entitled to cast. For guidance we need look no further than the procedures in this House where, because of rising population, the increasingly awkward structure and access to where we vote and the time limit that we are up against, the doorkeepers have very sensibly developed their own process whereby, after eight minutes, they move in behind those who are present and waiting to go through the Lobbies, and nobody else can vote. If that can happen here in this rowdy House, I suspect that it can happen in the polling stations up and down the land if proper, sensible legislation is enacted. I will say no more and, in the interests of the cause, I will now resume my seat, supporting what I hope I am going to hear.

[Lord Tyler]

I, too, want to speak briefly to Amendment 11 in the names of the noble Lords, Lord Pannick and Lord Lang, and their colleagues. It is tempting to follow the noble Lord, Lord Lipsey, who always entertains the House, because he demonstrated not only the ludicrous nature of some of the objections that we had from the Front Bench last week but a rather ludicrous solution to those objections, if I may put it like that.

I wish to follow the points made by the noble Lord, Lord Pannick. We, too, have benefited from some very useful discussions with Chloe Smith, her ministerial colleagues in the Cabinet Office and the Bill team. I hope that my noble friend on the Front Bench will indicate that those discussions have brought forth a fruitful conclusion. I hope that that will be dealt with tonight. I do not think that it can be left any later in the passage of the Bill.

There was a time when it was suggested that this concern arose simply from some inadequacy or administrative incompetence in a few polling stations and the anticipation of the outcome in a few constituencies in 2010, and that there was therefore no need for any statutory change. We on these Benches felt that that was not sufficient and, for the important reasons advanced in Committee last week and briefly touched on this evening, we should make it absolutely clear that an elector who has gone to all the trouble of going to the polling station and is there before the allotted time has elapsed should be given every assistance to cast their vote. If the citizen is inside the polling station or in a queue before the deadline, that situation is similar to when someone is in a shop and wishes to make a purchase, the shop is open for business and closing time has not happened. Surely, in a polling station, the citizen should transact the business of democracy in exactly the same way and be permitted to vote.

We quoted in Committee last week the practical example in Scotland where this attitude was assisted by an acceptance of that principle. The Electoral Commission has strongly supported us again on the amendment. It is a failsafe amendment. We assume that there will not be great crowds turning up at the very last minute because of a change—a very small change—in the legislative framework of elections. It is surely the right thing to do and I am grateful for all the indications that there have been from Ministers that they now are listening, not just to the mood in this House on this issue but to the careful, considerable advice of the Electoral Commission, which is, after all, Parliament’s adviser on an issue of this sort.

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[Lord Norton of Louth]

My Lords, in Committee I raised the issue of the edited version of the electoral register. I return to it in this amendment because of the Government’s unsatisfactory response. The edited version of the electoral register engages important principles regarding personal data. The edited version is generated as a by-product—essentially a commercial by-product—of a citizen’s duty to supply personal data in order to be registered to vote.

I made the case in Committee for the edited register to be abolished. I had argued the case before and, in making the case in Committee, I was able to pray in aid the Electoral Commission, the Political and Constitutional Reform Committee of the House of Commons and the Association of Electoral Administrators. Each has argued the case for abolition. In Committee, I quoted an editorial of the Guardian in December 2011, which argued that the edited register,

“lingers on, a travesty of the democratic process that sullies the relationship between voters and state, and illustrates just how casually politicians think about democracy”.

In its briefing for Committee stage, the Electoral Commission contended that prohibiting the publishing of the edited version was,

“particularly important, given the need to maintain people’s confidence in the security of their personal details”.

In responding, my noble friend the Minister said that, on balance, the Government had decided to retain the edited register because of what was seen as a greater principle—that of commercial gain. There was no engagement with the argument beyond that. The Government’s stance would presumably justify reverting to the sale of the full register to any organisation that wished to purchase it.

However, given that the Government have decided in favour of retaining the edited register—and we will doubtless return to that issue in the future—I have decided to pursue the issue of the opt-out. In Committee, I argued the case for electors to opt in to the edited version of the register, rather than—as now—opt out. This is, to my mind, crucial in the use of personal data. If electors are to have their personal data sold to third parties, then they should have to give their consent to it being sold in this way. As I said in Committee, consent must be given rather than assumed. That need for consent is reinforced by the Minister’s reminder in Committee that under individual electoral registration, an individual’s choice—or rather, in many cases, assumptions made about an individual’s choice—will automatically be carried forward.

The Electoral Commission, in its briefing on today’s amendments, has made clear that it supports this amendment. It states:

“We believe that, if individuals are required by law to provide personal information for the purpose of electoral administration, they should be asked clearly if they also want their personal information to be sold. Their personal information should only be sold if they have explicitly given their consent”.

In Committee, the Minister’s line of argument was essentially that the situation had improved since the days when the full register could be sold—rather ignoring the circumstances leading to the creation of an edited register—and that the existing situation provided appropriate protection and control. That was asserted rather than justified. Where personal data are concerned, we need to apply a higher threshold than that which is being applied. The present arrangements rest on assumptions about electors’ wishes rather than their explicit consent and what appears to be implicitly the view that changing to an opt-in provision would be too much trouble. Perhaps in reply my noble friend will explain what precisely the obstacle is to moving to an opt-in provision. Surely the principle of consent must outweigh the claim of convenience.

I will raise a general point deriving from this amendment and from others moved in Committee, not only by me but by other noble Lords. The Government appeared unwilling to engage with points of principle relating to the franchise and to the protection of personal data. Their response was couched essentially in terms of convenience and practicality. This bears out the concern expressed by the Constitution Committee in its report of the previous Session on the process of constitutional change. More than a decade ago, when I chaired it, the committee expressed concern at the lack of a culture within government of dealing with constitutional issues. As the committee noted in its report of last Session:

“The evidence we have received points to this lack of coherence remaining a serious problem”.

The Government need to demonstrate that they are able to engage in debate about the principles underpinning our constitution and the way in which we conduct elections. My amendment raises important questions that take us beyond matters of administrative convenience. If the Government are not willing to accept the amendment, they must give a compelling argument for their stance. We need to do whatever is necessary to protect personal data and the integrity of the registration process. I beg to move.

[Lord Tyler]

My Lords, as always, the noble Lord, Lord Norton of Louth, made a compelling case. However, it would be wrong to suggest that the current situation is in place not because of a very long, very careful, very extensive and very thoughtful process. The edited register is the result not just of some quick legal judgment but of a long political process, started by the previous Labour Administration.

The electoral register has been available for sale in one form or another since 1832. In 1999, Labour rightly recognised—before the register was challenged in the courts—that there was a case for changing the Victorian arrangements. In 1999 a Home Office working group recommended, first, that electors should be allowed to decide whether their personal details should be included in a register that was made commercially available and, secondly, that the full register should continue to be available to electoral users, while a licensing arrangement should be agreed to ensure that its use was restricted to electoral purposes only.

As far as I am aware, that recommendation was by broad agreement across the parties. The situation resulted in Section 9 of the Representation of the People Act 2000, which created the so-called “edited register”. It was only when the Government consulted on how to implement the new principle that they were challenged in court about the old system. In 2001, Brian Robertson from Pontefract won his case when the judge concluded that the compulsory disclosure to commercial organisations of data given for electoral purposes was in breach of the Data Protection Act and of the newly passed Human Rights Act. He won the legal point in court, but it appears that the political and moral point had already been acknowledged by the Labour Government in 1999, and here in Parliament in 2000. The edited register was finally implemented in regulations in 2002. The problem that the amendment before your Lordships seeks to solve is one that has already been dealt with in the 2000 Act and the 2002 regulations.

Your Lordships’ House is always rightly concerned about the unintended consequences of legislation that we scrutinise. We should be particularly alert to the unintended consequences of this amendment. The edited register does not just have a commercial purpose; it is also used by a great many charitable organisations. The suggestion from my noble friend that it was only commercial reasons that the government Front Bench advanced last week may or may not be true, but those reasons certainly are not my concern. My concern is that a large number of highly reputable, very public-spirited actions by very public-spirited organisations could be impeded by the removal of the edited register, or by it becoming ineffective. For example, the Salvation Army is a particular advocate for its retention. Each year it finds and reunites some 3,000 families by using the edited register. That is as much an issue of principle as of practice. The edited register underpins efforts to locate and connect organ donors—which, again, is very important—and even bone marrow donors.

Civil Service: Permanent Secretaries

Lord Tyler Excerpts

Thursday 13th December 2012 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, I entirely agree with that. I felt that Sue Cameron’s article in the Telegraph this morning, clearly based on some rather hostile briefing by, I suspect, retired civil servants, goes enormously over the top in suggesting that ambassadorships were about to be given to donors. We have after all in the past occasionally had political appointments to ambassadorships. The noble Lord, Lord Richard, was one and very successful. There was also Peter Jay and Christopher, Lord Soames. We have held to the principles of Northcote-Trevelyan on political impartiality and we will continue to do so.

[Lord Tyler]

My Lords—

[Lord Soley]

My Lords—

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

My Lords, we have time. I think it is probably my noble friend Lord Tyler first and then the Labour Party.

[Lord Tyler]

My Lords, my noble friend has touched on the relationship of Ministers to Parliament. I wonder if he would just reinforce and reiterate the point that all Permanent Secretaries are answerable and accountable to Parliament for the whole of their departments, including of course the performance of the head and leadership of that department. Has he noted the suggestion that Secretaries of State might be subjected to confirmatory hearings by departmental Select Committees? Would he confirm that it is the Government’s view that, in this relationship, it is the Secretary of State to the department that is responsible to Parliament? So would it not be more appropriate for the Secretary of State on appointment to be subjected to a confirmatory hearing?

[Lord Wallace of Saltaire]

I will duck answering that question. The question of Civil Service accountability to Parliament is one of those issues now in play which does raise some very large and long-term issues and will need much further debate.

Lobbyists: Register

Lord Tyler Excerpts

Wednesday 12th December 2012 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, we are certainly intending to move on this but as the noble Baroness will appreciate if she has looked through the replies to the consultation document and the companion report of the Political and Constitutional Reform Committee in the other place, there is a quite remarkable dissensus among respondents. The Government’s summary of replies to the consultation document remarks at one point, in effect, that a lot of those consulted regard themselves as a legitimate part of the political process but regard everyone else as lobbyists. That is part of the problem. The paid lobbyists are a small part of those with whom we are talking, and they wish charities, think tanks, trade unionists and others also to be included on any register of lobbyists.

[Lord Tyler]

My Lords, does my noble friend agree that the overriding objective must surely be greater transparency? In that regard, while we must obviously avoid excessive complexity because the information has to be accessible and digestible, does he agree that all we really need to know is who is lobbying who about what? The register only goes so far in that respect.

[Lord Wallace of Saltaire]

My Lords, the Government have moved some way towards greater transparency in terms of who members of the Government meet. I am amazed by the detail in which I have to account quarterly for who I have met over the previous three months, so at one end we are already being more transparent. Part of the origin of the proposals for a lobbying register during the previous Government was the question of how much money was being paid to these specialist lobbying companies to influence Government. That was the origin of the inquiry. For the first time in my life, I sympathised enormously with the evidence given by the TaxPayers’ Alliance to the inquiry in which it said a narrower definition would be rather better.

Electoral Registration Data Schemes (No. 2) Order 2012

Lord Tyler Excerpts

Tuesday 27th November 2012 Grand Committee

[Lord Tyler]

On the point about the DVLA, I wonder whether my noble friend would accept that the Committee would like to strengthen his arm in any discussions with the Department for Transport and the DVLA. It is extremely important that the Cabinet Office recognises that the priority must be people who are not sufficiently well attended to in the registration process. As he said, the current register is deteriorating fast, particularly for those who are young and mobile in the inner cities. The priority must be to go to those databases that tend to pick out those individuals. Clearly the DVLA is one of them, but so, too, are the tenancy deposit scheme and the credit agency schemes. I hope that the Minister and his colleagues in the Cabinet Office will accept that those must be the priorities. There is a democratic deficit among young people in inner cities, who are the most mobile part of the population. It is natural that they should be the priority, and that is where we should put most emphasis. I hope that the Minister will take back from the Committee’s proceedings that we would like to strengthen his arm, and those of his colleagues, in dealing with the Department for Transport and the DVLA.

[Lord Wallace of Saltaire]

I am very happy to take that back. I will report back to my colleagues on the strongly held sentiments. Perhaps I may take the questions about tenancy and deposit schemes and credit agencies at the same time. The initial assessment by the Cabinet Office of the suggestion from my noble friend Lady Berridge that tenancy deposit schemes might be used was that it was not sufficiently obvious that the processes of these databases could be adapted to support IER. However, that does not exclude renewed consideration.

Of course, the question of credit agencies takes us over the boundary between public and private. Credit agencies are part of the private sector. The issue is part of a broader discussion that we all need to have with the likes of the noble Lord, Lord Maxton, and others, about the extent to which, as we move into a new world of data transmission and availability, private and public databases can be used for identity assurance. That was the basis for the briefing I received this morning from the government digital service. It would be helpful to organise a meeting for Peers as a whole on the work that it is doing—for longer-term and wider purposes than this Bill alone—on these issues. Private databases are increasingly useful, but their use raises questions about civil liberties and public and private interests with which we need to be concerned.

Electoral Registration and Administration Bill

Lord Tyler Excerpts

Monday 29th October 2012 Lords Chamber

I remember being on the Culture, Media and Sports Select Committee in the other place when the contract for the lottery came up for renewal. Camelot, of course, retained it, but one of the companies said that it would introduce a system which would not only enable people to play the lottery on their computers but also to vote using their computers, should the Government eventually move towards that facility. I left the other place 11 years ago, so it was probably possible to do this 13 or 14 years ago. Technology has moved on fast since then. Surely the Government should withdraw the Bill, look again at ID cards and see what they can do in regard to a central register.

[Lord Tyler]

My Lords, I hope the noble Lord, Lord Maxton, will forgive me if I briefly return to this group of amendments.

I was looking forward today to a tour d’horizon by the noble and learned Lord, Lord Falconer, with historical analogies, assessments and context, because, as it happens, I am celebrating my birthday today and I thought this would be highlight of the day. I am sorry that the noble Baroness, Lady Gould, is not in her place because she shares my birthday but is not sharing the wonderful experience that we usually have.

The history is important because the discussion on this group of amendments is all about monitoring success and measuring progress rather than the principle of IER. There is unanimous support and—dare I use the word?—consensus in this House that we have to move. The previous Government said so and this Government say so. It is a question of timing and getting it right, a point made by the noble and learned Lord, Lord Falconer. I am therefore disappointed that he did not refer to the past history and how we got to where we are. It was in 2003 that the Electoral Commission advised Parliament that it was necessary to move in this direction to improve the accuracy and completeness of the register and it took five years, as the noble Lord, Lord Wills, will know only too well, for the previous Government to take this issue seriously. We would not be having the suggested problems if it was not for the fact that that delay took place under the previous Administration. It is disappointing that the Labour Benches have not been able to recognise that that delay has made it more difficult to achieve success.

That is not least, of course, because during the nine years since 2003, the existing register based on household head registration has dropped dramatically. It is less complete and less accurate than it was when the Electoral Commission first made its recommendation. Until a matter of months ago we had all assumed that the existing register was something like 90% accurate; it is somewhere around 80% accurate. As I pointed out during the Second Reading debate and as the noble Baroness, Lady Jay, has said, in some areas it is much lower than that for the reasons she so eloquently expressed. The delay has made the situation more difficult, and in assessing the progress we must now make, your Lordships have to take that into account.

[Lord Foulkes of Cumnock]

Do the experiments in Glasgow and elsewhere not show that if the local authority is given the necessary resources to go around and canvass to make sure that there are returns, the percentage is much higher? Is it not because of the cuts in local authorities’ expenditure that they are not able to do that as effectively as they used to?

[Lord Tyler]

That is for a later part of the Committee stage, but I have sympathy with the point made by the noble Lord. Indeed, I pointed out at Second Reading that the London Borough of Hounslow has done incredibly well over recent years, despite the difficulties that most local authorities have been facing. Hounslow has used a whole number of positive and negative ways to encourage people to register. It is not just where these things happen; it is the degree of attention that the local authority is able and willing to give to these matters.

As my noble friend Lord Rennard has indicated, we have a later amendment which we think would bring back to Parliament the last word in pressing the go button, particularly for 2016. I think that that is more appropriate than asking the Electoral Commission to be, as it were, judge and jury in its own case.

[Lord Wills]

My Lords, as always it is a pleasure to follow the noble Lord, Lord Tyler, and particularly so on his birthday. I should like to take this opportunity to wish him many happy returns. I am surprised, though, that in his interesting history of the previous Government’s legislation in this area he omitted to mention that the Political Parties and Elections Act 2009, to which my noble and learned friend Lord Falconer referred, was agreed as being the best way forward by the Conservative Front Bench in opposition and by the Liberal Democrat Benches in opposition. We have still not had any explanation of why that agreement has been ditched and we have to spend the time of this House and the other place on this new legislation. Perhaps he will return to that in due course and explain to those of us who are still mystified by it exactly why that was the case.

I support these amendments, which have been so ably spoken to by my noble and learned friend Lord Falconer. They all go to mitigate what many of us think are the risks of a decline in levels of registration as a result of this legislation. There is no certainty that the levels will decline, but we feel that there is a risk of that. We do not know whether the Government agree because so far they have studiously avoided saying whether they think there is any risk, but what we do know is that they are commendably committed to a comprehensive register. They have said that many times and I think we all agree on that. We also know that, again commendably, they are bringing forward a number of measures to that end, and they have the support of almost everyone in the House for those measures. But what we have also learnt is that they seem to feel that a level of registration of 85% to 87%—in other words where there would be 6 million people who would be eligible to vote but who would not be on the register—is a level of completeness that, in the words of the noble Lord, Lord Wallace, in an email to me, is, “as complete as is reasonably possible”. That at least indicates that they think there is some considerable difficulty in achieving a truly comprehensive register. We do not know exactly why the Government will not say whether they think there is any risk of a decline in levels of registration as a result of this legislation. It may be because they actually think that there is no such risk but that it would be imprudent for a Government to commit themselves in that way. It may be that they have done some work which shows that there are considerable risks inherent in the legislation, but again they do not want to tell us.

Governments are not infallible. Amendment 36, which I particularly support, offers Parliament the opportunity to assess the Government’s record in this area. This amendment would commit not only this Government but subsequent Governments. This Government may not be in power after 2015 so this amendment would commit a future Labour Government to bring before Parliament the opportunity to scrutinise levels of registration and, if necessary, to produce remedial measures. I think Parliament should have that opportunity.

This is not a minor technical matter, although some of the details are technical; it is about the very wiring of our democracy. The outcome of general elections depends on electoral registration. There are worries on this side of the House that this legislation, coupled with the PVSC Act, will lead to partisan outcomes in levels of electoral registration. These are important issues and Parliament ought to have the opportunity to scrutinise them regularly.

The Minister may say that the Electoral Commission will do its usual good job in bringing forward annual reports on the state of electoral registration and then it may be for Parliament to discuss the matter if it so wishes, but I hope that the Minister will not rely on such an argument. That would be to downplay the importance of this issue and the risks inherent in this legislation. I hope that the Government can agree with what is actually a modest amendment and allow Parliament the opportunity to scrutinise levels of registration on an annual basis.

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[Lord Falconer of Thoroton]

My Lords, this is a small but important point. It is a probing amendment, but I would very much like some assurance from the Minister.

Schedule 1 is about the registration and removal of electors on the register and Amendment 2 relates to an appeals process. We on this side of the House believe that people who are excluded from the register under the new system should have a legitimate right to appeal against the decision made by the electoral registration officer. The ability to cast a vote is a fundamental right and a key part of civic society. As the Government’s own implementation plan states:

“Registering to vote matters. It is the building block of our elections and an important civic duty. It provides people with an opportunity to elect their Member of Parliament, their local Councillor or Member of the European Parliament and is used as the basis for important activities like Jury Service”.

We believe that as many people who are eligible to be registered should be. I believe that the higher the turnout at elections, the better. I say that not just because I speak for a political party. As we have already mentioned today, and as I am sure will come up again as your Lordships’ scrutiny of this Bill progresses, there are known risks associated with the move to individual electoral registration. People will fall off the register, especially in the interim, and especially under this Government’s plan as so many of the safeguards that were in the 2009 Act, which my noble friend Lord Wills was instrumental in introducing and was referred to in the debate, have been scaled back.

In the spirit of tackling voter fraud, which we know is the key motivation behind this Bill, and behind its speeded up implementation plan, some of those who fall off the register will do so legitimately because they should not have been there in the first place. Of course, that is right and that is what should happen, but some people will be removed in error. Given the importance of the right to vote, and so the importance of being registered, those who do fall off should have an opportunity to appeal. Given the importance of the method, I would like to say a few things about the appeal.

At the moment, under the current system of registration, there is a clear appeals process. It derives from new Section 10A(3) of the Representation of the People Act 1983, and regulations set out in 2001. The relevant legislative base is sufficient for the current system but will these provisions be suitable once the transition has been made to individual electoral registration? Could they be fully applied, will any amendment be needed to the appeal provisions, and does the Minister see any merit in incorporating the 2001 regulations into the Bill, so as to provide assurance that there is a valid appeal process that Parliament has dealt with and approved? It is a probing amendment and I should be interested to hear the Minister’s answers. I beg to move.

[Lord Tyler]

My Lords, I want to contribute briefly to the discussion of this amendment on the appeals process but, before I do so, perhaps I should put the record straight in relation to the 2009 Act. There was not unanimity, despite what was said earlier, about the previous Government’s timetable for the introduction of IER. Both my noble friend Lord Rennard and I, during the Second Reading of the Bill on 18 March 2009, made it clear that we hoped there would be an acceleration of the programme, which is of course what the present Government are doing. Since then we have found that the previous register was so incomplete that there was a greater case for accelerating the process.

[Lord Wills]

I am sure that the noble Lord would not want to distort the historical record on his birthday. I do not know whether he and his noble friend were speaking on behalf of the Front Benches in that case but, certainly in the House of Commons, what actually happened was that the Front Benches agreed on the Political Parties and Elections Act and the timetable for that legislation. That is a matter of record in Hansard.

[Lord Tyler]

My Lords, as may often be the case, your Lordships’ House was wiser than the other place on this issue, and I invite the noble Lord to look at Hansard for 18 March 2009, cols. 257 and 284.

Returning to the amendment of the noble and learned Lord, Lord Falconer of Thoroton, I too have some concerns. It is important to make sure that there is some form of transparent judicial appeal process in which everyone has confidence, not least because removals can be serious, not just to the individual concerns but more generally. I draw attention to the fact that the implications, not least in terms of the Political Parties, Elections and Referendums Act, could mean that a donor is found to be illegitimate because he or she has been removed from the register. There could be considerable consequences from any form of removal. Therefore, although I do not have a strong view about whether the tribunal process would be the right one—doubtless, the Minister’s officials may already be providing reams of advice on the cumbersome problems that could be caused by a new tribunal—will my noble friend consider extending the existing tribunal process that relates to the civil liability issue under the Bill?

I do not have a magic answer to this but surely if there is already a tribunal process under the Bill, perhaps it might be extended to deal with appeals of this sort. That would seem to be a neat way to deal with this issue, and I look forward to hearing whether my noble friend would find that a helpful way forward.

[Lord Gardiner of Kimble]

My Lords, I thank the noble and learned Lord for highlighting the important issue of individuals having a right of appeal if they feel that they have been incorrectly removed from the register. This is similar to an amendment tabled by the Opposition in the other place, and on that occasion Wayne David accepted that there is an appropriate appeals mechanism in place. Indeed, he said he was pleased that the Government’s reassurances were clear.

I therefore confirm that Sections 56 and 57 of the Representation of the People Act 1983 already make provision for appeals against the decisions of registration officers in Great Britain, including decisions to remove electors from the register. Paragraph 17 of Schedule 4 to the Bill makes the necessary amendments to ensure that this continues to apply under the new system. I refer noble Lords in particular to the proposed insertion of new paragraphs (azd) and (aa) into Section 56(1) of the 1983 Act dealing with appeals against decisions under new Section 10ZE.

My apologies to noble Lords for the technicalities involved in that. However, there is provision within the Bill which I hope will reassure the noble and learned Lord and, on that basis, I ask him to withdraw the amendment.

--- Later in debate ---

[Lord Tyler]

My Lords, I shall speak briefly to this group. Because I am referring to the advice given by the Electoral Commission I should put it on record that I have served as a member of the cross-party informal advisory group for the Electoral Commission in the past.

The government amendments are very welcome and specifically take the advice of the Electoral Commission and the Constitution Committee of your Lordships’ House about the list of forms of evidence that could be used in the electoral registration process and how they should be set out. However, Amendment 7 in the name of the noble and learned Lord, Lord Falconer of Thoroton, would make the Bill less flexible in this respect by setting out that the national insurance numbers and dates of birth should be the primary evidence required when applying. Many of us may have some sympathy with that because it is obviously such a fundamental building block and it may be thought by Members of your Lordships’ House that at least that has the advantage of some clarity at the outset. However, there is clearly a danger that if the national insurance numbers prove more cumbersome than all of us hope, and certainly than the Government intend, the only way to alter that primary evidence would be by primary legislation, which is clearly very bureaucratic and perhaps a matter of administrative overkill.

I suppose that one’s judgment on the merits of Amendment 7 will depend on how paranoid we all are about future Governments and whether the likelihood is that the list might ever be changed to set too high a bar. For example, it might suddenly be required that not just the national insurance number but some other form of identity, such as a library card or a bus pass, in my case, should also be available. That may seem unlikely and the regulations would anyway be subject to affirmative procedure, but on the whole I prefer the Government’s rather more flexible approach. I look forward to hearing what the noble and learned Lord, Lord Falconer, and the Minister have to say. Inflexibility is something that your Lordships’ House is rather good at identifying in advance, so avoiding the bureaucratic nightmare that may result.

[Lord Maxton]

My Lords, first, I take the opportunity, if I may, to say to my noble and learned friend on the Front Bench that I was not suggesting that we should vote in the same way as on “Strictly Come Dancing”. I was suggesting that we are still voting in a very conservative and old-fashioned way, whereas in other forms of national life, we do it differently.

I am a little concerned that there has been great opposition to my idea of a national register of some sort, but we are now talking about national insurance numbers. Who holds them? Where are they registered? Who keeps them? Who says, “That is your national insurance number”? Is that not a form of national register?

Electoral Registration and Administration Bill

Lord Tyler Excerpts

Monday 29th October 2012 Lords Chamber

[Lord Tyler]

My Lords, we have just heard from two very distinguished senior members of former Administrations. I find their cynicism about the way in which the public service operates rather discouraging. I am not suggesting that every word of our amendments may be precise, but I want to put it absolutely clearly on the table: nobody is forcing anybody to do anything. The purpose of the exercise is to make sure that the process of compiling the very building block, the foundation stone, of our democracy—the electoral register, which is important, as the noble Baroness said earlier, not just for voting purposes but for jury service and other purposes—is as well informed as it can be from public sources. As my noble friend said, the amendment does not propose that the electoral registration process should give back information in the opposite direction; it is one way. It has been very clear from successive Administrations and Ministers that it is for that purpose alone and not to provide information in the opposite direction.

I ask my noble friend Lord Baker to read very carefully how our amendment is worded. It does not suggest that the information could be given to any other person; it says very specifically,

“to disclose information to another person for the purpose of assisting a registration officer in Great Britain”.

In other words, it has to be for that purpose and that purpose alone. It may be that the wording can be tightened up still further by government amendment between now and Report, but I make it absolutely clear to my noble friend that not any other person could benefit from this data mining.

[Lord Baker of Dorking]

Would “another person” be an election agent of a party, or someone purporting to be?

[Lord Tyler]

No.

[Lord Baker of Dorking]

With great respect, that is what the amendment says. It does not say a registration officer or a local authority employee; it says “another person”. “Another person” in English law means anybody who says, “I’m actually going to seek this information in order to register more students. That is what I’m doing it for. I’m doing it for a public purpose. The fact that I am an election agent for my party, forget it. Forget that I am a registered Liberal”—that may be too difficult to forget, but—“Forget whatever I am”. That is what the amendment says.

[Lord Tyler]

My Lords, if the Government feel that the amendment is inadequate in that respect, and my noble friend has made his point eloquently, obviously they can adjust the wording at a later stage. However, the amendment is here for the very specific purpose of assisting a registration officer in Great Britain. In other words, I would take that to be somebody who was within their organisation. If my noble friend has better wording, that is fine, but the point that I have to make is simply this: we already have the precedent, which has existed for a very considerable time, of using data that are already available to Government for this purpose. We are seeking to make sure that that is as full as possible. I think that the noble Lord, Lord Reid, will understand that the great majority of DWP data, cited by my noble friend Lord Rennard, will relate to people who are already going to register, in particular elderly people. What we are concerned about is mobile young people, a concern which has been evident also in contributions from the opposition Front Bench today. One of the ways to get to them is clearly through the student loan data and those who register for provisional licences.

[Lord Reid of Cardowan]

I make it clear to the noble Lord, as I did previously, that I do not approach this proposal with cynicism, and I certainly did not suggest that I was in any way suspicious of either his motives or those of the noble Lord who moved the amendment. Indeed, it is courageous that representatives of Liberal Democrats want to put more students on the electoral register. That illustrates that they are not doing it entirely for their own benefit. What I am saying, however, is that you should not take a step down this road, which is to bring together data mining and data matching across government departments, unless you recognise the profundity of it.

Does the noble Lord accept that there will be increasing pressure, in times of austerity, for the government departments that he mentioned to move to the cloud, rather than retain their own databank and their own hardware? There will be great pressure—I see that the noble Lord agrees with me. Does he understand that many of the cloud servers have a business model that is dependent on mining the data that pass through their server in order to get to the databank? Therefore, you should not aggregate these data in such a way unless you recognise that the people in the private sector offering you the service of the cloud will mine those data. Maybe the noble Lord has already considered this but I am trying to make sure that we do not take such a step—not because I am cynical or doubt his motives but because real, profound questions arise out of it.

[Lord Tyler]

The noble Lord has been generous enough to say that he does not in any way question the integrity or approach of my noble friend or me. I do the same for him. I very much appreciate and endorse what he said. In the fast-moving world that we are talking about, these are proper concerns. The whole issue of who would operate the identity cards to which he and his Administration were committed raised precisely those questions, too. I think he would now accept that.

All we are saying here—I look forward to what the noble Baroness will say—is that, having already committed to the use of the DWP data, it is only reasonable to examine other databases that may be balanced in a different way demographically and politically. Maybe the terms in which our amendment is written need to be more carefully considered. That is fine; it is what a Committee stage in your Lordships’ House is all about. I entirely understand the concerns that the noble Lord expressed but we have to be very careful. If we went right down the road of being risk-averse on these issues, we would do no data matching or mining at all and the register would become even more inadequate than it is already. That is a very serious proposition.

I do not know if the noble Lord was in the House earlier, but we had to identify that the status quo now is totally unacceptable. We have dropped back to the low 80s in terms of the completeness of the register. We are not where we were 10 years ago. I think it is agreed on all sides of the House that we have to look at every possible way to improve the integrity of the register both in completeness and accuracy. That is the purpose of our amendments.

[Baroness Hayter of Kentish Town]

My Lords, first, I thank the noble Lord, Lord Rennard, for the little education he gave me in an earlier group about the precise wording of Amendment 24. I am very grateful for that. I also thank him for moving this amendment. I speak to very similar ones tabled by my noble and learned friend Lord Falconer and me. All these amendments seek to achieve essentially one thing: that those who hold, for quite proper and official reasons, the names and addresses of our citizens should make them available to election officers who then must write to those citizens, encouraging them to register.

I say to my noble friend Lord Reid and the noble Lord, Lord Baker of Dorking, that we are in a position where the Government want to move very fast from one system of registration to another. I hope they will both remain for the next group of amendments, which are about another device to ensure a full register—an annual canvass. That is a different group of amendments. Without these sorts of activities, we risk after the general election of 2015 suddenly moving on to a half register. Unless we take these sorts of steps, we will not have contacted a large swathe of people who absolutely have the right to vote and, I would argue, therefore have the right to be told that they have the right to vote and what they should do about it. Whether it is, as suggested by the noble Lords, Lord Rennard and Lord Tyler, the Student Loans Company, DVLA and tenancy deposits schemes, or, as we suggest, pension benefits agencies, the Passport Office, education establishments and landlords, they should all provide quite willingly information to the relevant election officers, who would then be under an obligation to write to those not on the register encouraging them to sign up.

One of the reasons for this is that we know from research—I think done by the Electoral Commission—that many of those not on the register believe that they are. That may even be the Minister’s own research. Forgive me for not getting the source quite right. We know that a large number—I think it is 45%—of people not on the register think that they are. There will be many of us who have done the political work on polling day of taking people round only to find that they are not on the list. There may be a number of reasons for that. One is the assumption that it just happens. Maybe they have lots of other dealings with the state: they may have applied for and been issued with a passport or driving licence, get a pension or a benefit, pay their council tax or visit their local hospital or GP. That gives them the feeling that they are part of society and a community, and are a citizen. A number of them probably assume that, as part and parcel of that, they are also on lists held by the Government so do not need to separately sign up to register to vote. We are coming in with a new system—in quite a hurry—so it is important to make clear that these other lists also held by the Government or government-authorised agencies do not of themselves give them the right to vote.

It is also important that the Bill should require EROs to let all people know of the other important uses made of the register. The Minister mentioned credit checks earlier in Committee and there is certainly also mortgage eligibility. When those of us of a certain age want our freedom passes, the first thing our local authority will do is see whether we are on the electoral register. There are many advantages to being on it.

Until my noble friend Lord Reid and the noble Lord, Lord Baker, spoke, I thought that it would seem obvious to most people that EROs would look to the sources of data that exist elsewhere to find those missing from the existing registers—or the new ones as individual registration comes up—and write to them. It seems that we should not just leave it to EROs to take that initiative, but write in the Bill that such data should be shared, and shared in a timely manner so that those of our fellow citizens not already on the register will receive a personalised invitation to register for what is their right—the ability to vote.

[Lord Wallace of Saltaire]

My Lords, before I address the amendments directly, I take up some of the broader issues raised by the noble Lord, Lord Reid, which were touched on by the noble Lord, Lord Maxton, in our first Committee session before dinner. They are extremely wide issues and I agree that they are important. It was for that precise reason that I went to be briefed by the head of the Government Digital Service last week.

As the noble Lord, Lord Reid, pointed out, as we move towards cloud computing, the questions of where data are stored, to what uses they are put and how far they are shared become a very delicate and important area. I also flag up that the question of what is a public database and what is a private one becomes a little more difficult than it is now. There is a whole set of issues there that we need to return to in other contexts because this has the potential to transform the way in which society, the economy and government work as a whole. I was assured that the protocols that now govern what is called identity verification—the very limited use of data sharing to ask, “Is this person real?”—are strong and, as used by the credit agencies and others, provide firewalls which prevent too much information being shared.

Some of us might differ on how far we would be happy for the DWP, HMRC and the National Health Service to share information on what people claim to be earning, claiming or whatever; those questions will also come into that debate. I strongly agree that this is an extremely important long-term issue. However, if I understand it correctly—and I am at the absolute outer limits of my knowledge of computers at this point—I am told that one does not need to amass new databases. That is the difference between what is now beginning to happen and the old ID debate. One can put different datasets in touch with each other for limited purposes to enable one to discover whether X is really X and whether there is a Y. I thank the noble Lord for his intervention; these are very important long-term issues.

The Government believe that maximising electoral registration and voting is not purely the function and responsibility of the Government. It is the function of political parties; it is the function of all sorts of voluntary organisations. We all know about Operation Black Vote and Bite the Ballot. Noble Lords may be interested that one person last week suggested to me that if Tesco was willing to offer a voucher to everyone who signed up to the electoral register at the age of 18, that would increase the number of 18 year-olds signing up. For myself, I would prefer the Co-op to do it. Perhaps we should consider the extent to which such incentives are, sadly, in our modern world, necessary.

The Government are sympathetic to the spirit of the amendments, but wish to stress that we are already working in this area. We want to retain a degree of flexibility, and a lot of pilots are under way. In last year’s pilots, we matched databases from not only DWP but HMRC, the Royal Mail, the address reallocation service, the Department for Education, HEFCE—the Higher Education Funding Council for England—the Department for Business, Innovation and Skills, the Department for Transport, the Student Loans Company, the Ministry of Defence for service voters and the Improvement Service company. The noble Lords, Lord Reid and Lord Martin, will understand about that company a little better than I do, because it holds data on behalf of local authorities in Scotland.

[Lord Tyler]

Perhaps my noble friend could address the particular problems found when the Cabinet Office funded additional research by the Electoral Commission about the completeness and accuracy of the register. As the noble Baroness said earlier, a high proportion, 44%, of those not on the register in April 2011 incorrectly believed that they were. Even more significantly, only 14% of those who moved between the 2010 canvass and those who appeared on the register in April 2011 were there. It is often the move that is the problem. That is why some of the data-matching suggestions made, to which my noble friend has just referred, were particularly addressed to those people. DWP does not particularly help with those; DVLA, Royal Mail and all that seem to be more relevant.

[Lord Wallace of Saltaire]

I entirely take the noble Lord’s point, and add that an information campaign is clearly an important part of the transition to get to those who think that they might be on the register but may not. I would be entirely happy for noble Lords to press us further on the question of attainers, education in schools and civic education, which must be part of the transition process.

We resist the exact terminology in the amendments, and ask for more flexibility on the terms that we are looking at all these areas. We do not want to limit such schemes to the organisations named; we are experimenting with the range of datasets that can be helpful in this regard.

As we stated in our response to the Delegated Powers and Regulatory Reform Committee:

“The Government feels that the categories of persons should not be prescribed in primary legislation in this regard—

because—

“the Government does not intend to introduce an amendment to restrict the categories of persons that may be authorised or required to provide information, but will listen carefully to the views of the House on this issue during Parliamentary debate”.

The Government will reflect carefully on all those points and make clearer our intention on Report. So we are considering the precise detail of the alternative verification procedure beyond the immediate, primary identifiers and will consider a range of options to provide an accessible but secure approach.

Amendment 11 would require local authorities to share their data with electoral registration officers. That already takes place. Electoral administrators are part of local authorities and have for some time accessed relevant other local authority databases for the purposes of checking names and addresses together. The Bill would allow for such data sharing if it were decided that it was necessary and valuable in addition to that which already takes place. The next phase of government data-matching pilots will look at which datasets are most useful for electoral registration officers to carry out their duties. Some of the pilots will target students; some will target recent home-movers, which the noble Lord, Lord Tyler, flagged up as particularly important; others will explore how sharing data between two-tier local authorities, in those parts of the country where they exist, may assist them further.

However, on local authority data, I repeat that registration officers are already authorised to inspect records held by the authority that appointed them and are required to inspect records where they are permitted to do so both under the 1983 Act and the Representation of the People Act 2001.

On Amendment 15 and the whole question of students, we are already working with the National Union of Students, which represents students, and organisations with which students interact, such as the Student Loan Company and universities, to establish ways in which the registration process and the transition for those groups can be as simple and accessible as possible, building on the changes that we are enabling to the registration system, which will make registering to vote more convenient for all. Again, that work is under way; we are discussing and consulting with the other relevant public and private stakeholders.

Similarly, as for sheltered accommodation, which is the subject of Amendment 16, registration officers already have the power to require information from an individual to maintain their election register. That would include requiring managers of sheltered accommodation to provide the names of residents. Once registration officers are aware of that information, Clause 5 would require them to write to each individual who was not already registered at that address to invite them to register to vote. Amending the legislation is therefore unnecessary to empower registration officers to obtain information about individuals in sheltered accommodation or to require a registration officer to invite them to register.

As noble Lords will gather, the Cabinet Office is already actively engaged in a programme of work with groups which represent students, helping to provide alternative channels of registration, looking at the elderly in sheltered accommodation and how we could signpost people towards registration as they come into contact with other government agencies.

Amendment 17 addresses the question of private landlords. The real question here is whether a requirement on private landlords adds sufficiently to the toolkit of electoral registration officers to be worth the additional burden being placed on private landlords. That, again, is something that we are investigating further but our current view is that the marginal benefits of that measure over, to take just one example, the canvassable properties in the area do not justify imposing that additional burden.

Amendment 18 talks about the local authority providing additional information on council tax and other documents. Again, the Cabinet Office is testing out where it is most valuable and useful to provide additional information and, as the behavioural unit puts it, to prompt people to consider more actively ensuring that they are registered to vote. There are some questions about the complexity of the council tax document. I am not entirely sure that I read the whole of my council tax documents either in Bradford or in Wandsworth last year, but I am sure that the noble Lord, Lord McAvoy, read his in great detail from cover to cover. We are therefore not entirely sure that this is the best document to use for these purposes.

Amendment 19 requires local authorities to invite individuals to register to vote when they first register and begin paying council tax. This idea has a certain amount of utility and there is certainly no reason why local councils should not do that on the initial council tax form, but of course this would capture only the bill payer. There is a need for additional mechanisms to be in place to capture other people living inside the same property.

On Amendment 20, on the whole question of awareness-raising in other, wider government services and other transactions, we are looking with organisations from the public, voluntary and private sectors—I emphasise that it is not just in government agencies—to see where we can identify a potential benefit to introducing, for example, some form of prompting or signposting during the course of a transaction. We will test the different options to establish the extent to which they will assist the citizen.

On Amendment 24, to provide the explanation of the other uses of the register, opinions might differ on whether that was a plus or a minus. There have been one or two suggestions that there are those who wish not to be on the register so that they avoid jury service; it is not one of the most popular aspects of civic duty. That is another issue that we should perhaps explore further.

To sum up after this very large discussion of different ways of using and accessing databases and encouraging people to register, this is very much what we as a Government are already engaged in. We are happy to brief people further on what we are doing, how the data-matching pilots are going and how the information campaigns will be planned. We hope that on that basis the noble Baroness and the noble Lord will be willing to withdraw their amendment at this stage, and we will be happy to have further discussions on how we go forward to ensure that our shared aim, which is to maximise the number of people who register under individual electoral registration, will be achieved to the satisfaction of all.

--- Later in debate ---

I should like to say to the noble Lord, Lord Martin, that the Electoral Commission is responsible to Parliament through the Speaker’s Committee, but there are of course frequent informal conversations between the Cabinet Office and the Electoral Commission.

[Lord Tyler]

I think we would also be wise to recall that in recent years additional commissioners have been appointed to the Electoral Commission from the political parties. I think that there was a concern at both ends of the building that the Electoral Commission was not sufficiently in touch with the real-life activities that the noble Lord, Lord Martin, and I experienced in our previous roles. I hope that there is now much less concern that the Electoral Commission may have got out of step with the reality of politics than perhaps was the case a few years back. In addition, as I indicated earlier, there is a cross-party group of informal advisers to the commission, and I hope that that, too, will reassure the noble Lord, Lord Martin. My noble friend is quite right in saying that the commission is very appreciative of, and answerable and accountable to, the Parliament and the public, which it, too, has to serve.

[Lord Martin of Springburn]

Perhaps I may add to that. I am well aware of what the noble Lord, Lord Tyler, is saying. I suggested that we should have the informal ad hoc committee because I felt that the commission was not in touch with the real world, where people met electors. The Government had a bar on people who were formerly election agents—that is, professional election agents—but I felt that that was ridiculous, because the professional election agents had the skill and expertise, and they knew exactly what was realistic and unrealistic. However, the point I am making is that we are putting more and more responsibility on the Electoral Commission, and there should be strong liaison between the Government and the Electoral Commission to see that the commission is up to the job that it has been given.

House of Lords: Appointments

Lord Tyler Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Wallace of Saltaire]

I am very glad to hear that the noble Lord agrees with Nick. We in this House have to be very careful about saying, “We’re all very comfortable here and we all want to stay, and no one else should be allowed to come in until there has been a longer process”. Over a five-year period we need to consider the balance of the House and the question of the occasional refreshment of its Members, and we are certainly not going to close our minds to that in an interim House. We will certainly encourage some of the older Members to consider statutory retirement or a long-term leave of absence.

[Lord Tyler]

My Lords, to avoid understandable suspicion, and indeed accusations, of personal self-interest, would it not be wise for the Government to give a lead and say that, as far as Ministers are concerned, no MPs who voted against the Government’s reform Bill should be nominated to this House?

[Lord Wallace of Saltaire]

I do not think that I ought to answer that question. I am very conscious that there are those who, in the Corridors of this House, have said to me, among others, that those who are asked to leave the House should be compensated for doing so. To that I would say that membership of this House is a privilege, not a right, and the idea that one has to be bought out before one leaves is not one that should be considered.

Electoral Registration and Administration Bill

Lord Tyler Excerpts

Tuesday 24th July 2012 Lords Chamber

[Lord Tyler]

My Lords, I start from a similar viewpoint to that of my noble friend Lord Lexden. We have heard much in this debate about the potential flaws in the new system but I will concentrate a little more on the known flaws in the status quo. The present system is broke and it needs fixing. We have learnt from several recent Bills that Governments have to identify the problem to which they are offering a solution if the public are to accept that change is necessary. In this instance, there is clearly a problem and change is necessary. The current registration system is so open to fraud that it might as well be an old uncrossed cheque, signed and left on the train.

I regularly take part and lead discussions in seminars with electoral administrators from all over the world, many from developing countries. All are astonished when they learn that any male could walk into the polling station in my district and claim to be Paul Tyler, say that he lived at my address and be issued with a ballot paper. At the previous general election, the presiding officer wanted me to vote for the parliamentary candidate and thought it most peculiar that I was not entitled to do so. I could easily have done so. My noble friend the Minister and other noble Lords have referred to this as a matter for further consideration. We will have to discuss this during the Committee stage of the Bill because it is clearly a serious security issue that needs to be dealt with. We must examine the case for recording signatures, or some other identifier known only to the individual elector, as part of the registration process for those voting in person as well as those voting by post or by proxy.

The alibi for maintaining the current insecurity and inaccuracy of our electoral process has always been to try to achieve notional completeness. I have a long-standing commitment to the integrity of this crucial component of our representative democracy. I declare a non-pecuniary interest as a member of the informal cross-party group that advises the Electoral Commission on some of these issues.

Completeness is an equally important objective, as my noble friend Lord Rennard said. Clearly, there is little point in developing a system that is so secure that even those who should be on the register do not end up there. None of us wants that, but the existing system is by no means insulated from that problem.

The most recent Electoral Commission research, which has already been referred to, found that the existing electoral register is only 82% complete. Even the noble and learned Lord, Lord Falconer of Thoroton, accepted that under the previous Government there was a major problem. It remains. That figure is down from previous estimates of some 90%, which he also mentioned. Seemingly, some 2 million or 3 million electors got lost during the Blair and Brown Administrations. The 82% figure is also the national average. By definition, that means that in some parts of the country registration levels are even lower. A number of colleagues referred to this problem but they did not identify how low the figure is in some areas.

The latest Electoral Commission research, completed in 2009, estimated that Glasgow, for example, has 74% of its residents on the register. Lambeth, just a stone’s throw from your Lordships’ House, had only 73%. In particular areas, one-quarter of those who should be on the register and are entitled to vote are simply not there. That is an extremely important point, which we have to address in the Bill. The status quo is not sustainable or acceptable. Since 2009 when that research was done, the discrepancy, especially among younger and more mobile people in the inner cities, may well have deteriorated further. We should be under no illusions that the existing system is adequate and acceptable. That is why the Bill presents an opportunity at least to start to reverse this deplorable trend. I pay tribute to the noble Lord, Lord Wills, who, in the previous Administration, tried to do this. To some extent his attempt to introduce and implement the move towards individual registration was effectively stopped by some of his colleagues, who were fearful of change.

My noble friend Lord Rennard has already referred to the necessity for the Electoral Commission to take on a stronger role in directing the design of registration forms. We have also heard from the Minister reassurances that in future the potential for a civil penalty to be levied when an individual does not register will be prominently displayed. The size of the penalty is not as important as the size of the printed warning on the registration form. I looked at my registration form last week and it was not there at all. That is clearly ridiculous.

It is true, as a number of noble Lords have said, that in Northern Ireland the criminal penalty has been retained and has been found to be helpful in persuading people to do their civic duty. I hope that the Electoral Commission’s guidance will reflect the best practice from across the country.

It could do worse than look at the example of Hounslow. Here I am very grateful to Angela Holden, Hounslow’s electoral services manager, for permission to quote this evidence. In that London borough, the council sends out a sequence of up to five forms. Those who respond to the first are entered in a prize draw to encourage early response. Two further reminders go to all non-responders before canvassers start door-knocking. At that stage each outstanding household receives no fewer than three more personal visits until registration is achieved. Those who are recalcitrant enough still not to be registered at that point receive a fifth form emblazoned in red, in big print:

“Register now or risk prosecution”.

Having made such sterling efforts to get people on the register, Hounslow does follow through its threat of court action with those who still do not respond. This year the authority secured prosecutions against 10 residents. Nine paid out £150 each and another £115. All had to pay £120 or more in costs. As the leader of that council put it:

“Prosecutions are always a last resort, but we want to send out a clear message to all residents that ignoring the electoral registration requirement is an offence, which carries costly consequences”.

The noble Baroness, Lady O'Loan, said that she found it difficult to see what precise civic duty we are emphasising. It is a civic duty to be available for jury service. Imagine in one of those previous boroughs to which I referred, where it is down to perhaps 60% registered, and particular groups of people are not registering. Imagine how representative of that borough the local jury might be if the register is already so inaccurate. That is an important civic duty. It is not just the opportunity to vote, but also the opportunity to be a citizen in our local community.

That is how one borough, Hounslow, acts. It uses the positive—the carrots, if you will—as well as the negative. Its electoral services manager has told me that:

“In January each year, we obtain records from our education department and check that those students that are eligible are registered—anyone not registered receives a letter and a registration form. We also send out a registration form with all new council tax bills”—

not every annual bill, but to those opening new accounts—

“and with British citizenship packs at the ceremony”.

I note the examples given from Northern Ireland, where this automatically goes into secondary schools, as part of the citizenship course, so that people see the natural progress into being a fully-fledged citizen and being registered to vote.

Again, Hounslow invites schools to visit the council chamber each October, during democracy week, and conducts a mock election. This year 602 pupils are coming to visit over four days. That is just one local authority acting with real imagination and determination to ensure that its registers are as accurate and as complete as possible. As a result, the authority reckons that its register is 96.5% complete.

That is a very important lesson. These efforts will be all the more vital when individual registration is introduced, so that the new system can be seen for the opportunity that it is. Here I agree with the noble Lord, Lord Wills, that in the end, the vital ingredient for the success of this change will be local commitment and resources, not just what the legislation says.

I and my Liberal Democrat colleagues are localists. We always have been and we always will be, because we acknowledge that Whitehall does not always know best and that councillors are usually closer to their communities than civil servants and Ministers. Yet the binding principle of localism is that when decisions are taken closest to those whom they will affect, it is all the more likely that citizens—by way of election—can choose people who will take the decisions they want.

If that is to work equitably and democratically, the register must benefit from the highest possible integrity. In that respect I am content that the high degree of national direction—which should be the responsibility of the Electoral Commission—over the way in which councils perform their work in this area, to achieve a high level of quality control, is one of the most basic building blocks of our representative democracy. For it to thrive, it is critical that local authorities have the responsibility and the resources to undertake it.

In this respect, as my noble friend Lord Rennard said earlier, local government has to carry out an important national responsibility. I hope the Minister can make clear again, as he did previously, that once the legislation is passed these authorities will be able to make use of extra resources that Government will make available for this purpose. Whether it is practical to have ring-fencing I do not know—the Minister may be able to tell us—but we must make absolutely clear that these resources are for a national purpose and they must be used for that purpose and not any other. Our democracy is far too important to leave to chance. This Bill has the potential to make registration far better, more accurate, and more comprehensive.

Of course, we will discuss important safeguards during its passage through the House. Noble Lords on all sides of your Lordships’ House have referred to safeguards that they may be looking for. I am sure that the Committee stage will benefit from the wise and experienced voices that we will hear in this House. I believe the most important of all those safeguards—the failsafe—is the one that my noble friend Lord Rennard has already suggested. It is very important to ensure that electors in 2016, who will have important local authority elections and the Scottish and Welsh devolved Assembly elections, and which will in due course provide the figures which will be the raw material for further boundary reviews, are dealt with in a way that is fully cognisant of the problems that have been referred to in this debate. If the implementation of individual electoral registration has not gone as well as we would hope, there will have to be a reassessment of that process.

There will be other desirable safeguards. I have heard several suggested during today’s debate. I know we can rely on the wide experience of elections on all sides of this House to work out what they should be. In the mean time, the principle is self-evidently right and has been supported by both Governments and Members of all parties. With those safeguards in place, I hope that the Bill will have my enthusiastic support.

House of Lords (Cessation of Membership) Bill [HL]

Lord Tyler Excerpts

Friday 29th June 2012 Lords Chamber

[Lord Tyler]

I apologise for being slow to rise, but I was expecting the noble Lord, Lord Trefgarne, to speak next. I note that he is not doing so.

[Lord Trefgarne]

I have already done so.

[Lord Tyler]

I do apologise to your Lordships. I was making notes of all the points made but I failed to make a note of the contribution of the noble Lord, Lord Trefgarne.

[Lord Trefgarne]

I am so hurt.

[Noble Lords]

Oh!

[Lord Tyler]

I am so sorry. The noble Lord was a very good colleague on the Joint Committee and I should not have behaved in such a disrespectful way to his contribution. However, I am taken aback by the speed with which this matter is being dispatched. At the outset my noble friend explained that the Bill had been before your Lordships’ House on several occasions, and I think I have been present on every one. I do not really know whether to congratulate or commiserate with him today, but I take seriously the important point he made, which is that his Bill is neither in opposition nor complementary to the Government’s Bill.

Even so, I note that one or two other speakers in the debate seem to have taken a different view. I absolve entirely my noble friend from that because, after all, he has consistently advocated a 100% elected House and therefore is clearly in favour of far more radical reform than the one proposed in his Bill. Indeed, he has demonstrated that distinctly, by changing the Title of the Bill, that that is not intended to be his case. It is absolutely not a realistic alternative, and I think we should take note of that. Indeed, as a distinguished long-term beneficiary of the support of the electorate through the ballot box, it would be most peculiar if he now turned away from support of the democratic mandate that he has so often enjoyed.

My noble friend and I have been close colleagues and, indeed, close friends for more than 40 years, so I hope he will take some friendly advice from me. He might create a more favourable attitude to the progress of his Bill in the other place if he were to cease to espouse in the media some curiously ham-fisted, back-of-the-envelope alternatives to the Government’s Bill. For example, I noted in the Independent on Wednesday this week, I think, that he apparently advocated an electoral college for your Lordships’ House that would include Members of the Scottish Parliament from Scotland, Assembly Members from Wales, and Members of the Legislative Assembly from Northern Ireland—and in complete ignorance of the fact that 80% of the United Kingdom electorate live in England. I think that those of us who are there would find ourselves disenfranchised.

I have been consistent in my support of my noble friend’s Bill. I hope that not only can we give it a Second Reading today, but that we can avoid nitpicking amendments in Committee or at the Report stage, and proceed smoothly to a Third Reading.

Draft House of Lords Reform Bill

Lord Tyler Excerpts

Tuesday 1st May 2012 Lords Chamber

[Lord Tyler]

My Lords, I do not think that the draft Bill is perfect, but I think it will be improved by the work of the Joint Committee. Pre-legislative scrutiny, which this House believes in, has been undertaken manfully and womanfully by the committee headed by the noble Lord, Lord Richard. However, I suspect that he, too, shares with me some surprise at the way in which our conclusions have been interpreted or even misinterpreted.

I was here until the early hours of the morning. I was the only member of the Joint Committee still able to be upright, and to avoid repetition I will concentrate on just two issues that are media myths. The first is cost. I have studied the alternative report with care, and while I differ with various conclusions I respect the integrity and conviction with which the authors argue their case or cases. However, they should have been more careful when it came to using figures on potential costs. For example, it is ridiculous to use costs that were clearly speculative 10 months ago. The noble Lord, Lord Lipsey, who is now in his place, has been perfectly open and honest that he prepared those cockshy estimates many months ago when the Joint Committee was not even set up and had not reported. I am therefore very sad that those figures have been used.

First, let me reiterate what the Joint Committee recommended. We unanimously agreed that the independent assessment of salaries and allowances should be left to IPSA, not to the Government, let alone to the present House of Lords. By emphasising that new Members, whether elected or appointed, need not be full-time parliamentarians, we discouraged IPSA from suggesting a full-time salary. I suspect that the appropriate answer may well be a part-time salary, perhaps half that of an MP’s. Members of your Lordships’ House who have been MPs know how hard they work. They of course have to work when Parliament is not sitting in a way that we do not.

More importantly, this package will no longer be tax-free, as the present allowances are. It would be reasonable to expect a very modest net salary figure for year one for the 150 new members—120 elected, 30 appointed—who will replace the departing 92 hereditaries. Without a definitive figure for the number of life Peers retiring—the Joint Committee makes recommendations that are more ambitious than the government Bill—it is too early to estimate the savings on the present generous daily allowances, but obviously that, too, will be substantial. The estimated figure—

[Baroness Royall of Blaisdon]

My Lords, the noble Lord, Lord Tyler, criticised my noble friend Lord Lipsey because he did not have at his disposal all the facts relating to the costs of the new Chamber. Yet the noble Lord, Lord Tyler, does not have all the facts at his disposal either. If the Government had come forward with costings when the report went to Joint Committee, we would not be having this muddled discussion now.

[Lord Tyler]

I hear what the noble Baroness says, but these are the conclusions of the unanimous report in this respect. It is just that I, rather than the Government, am interpreting it. The noble Lord, Lord Richard, and other members of the Joint Committee agree with what I am saying about the recommendations of the Joint Committee. That is all I am doing. I am not blaming the noble Lord, Lord Lipsey. He prepared his figures long before the Joint Committee sat, let alone made its recommendations.

I am trying to keep within my time limit. Many other noble Lords have gone over it, but I will try to make progress. We specifically advised against the funding of any but the most minimal staff to undertake parliamentary duties, so the staffing figure of £31 million is just pie in the sky. Finally, since it is recommended that the election of the new Members would be at the same time as the 2015 general election polling day, the extra cost would obviously be marginal. Of course, the cost of not reforming your Lordships’ House, with more appointments to re-balance the party numbers and with the allowances doubling in every decade, would be phenomenal. If we retain the present membership of the House and it is increased by re-balancing, those tax-free allowances would go through the roof. Would that be good value for taxpayers’ money in this period of austerity?

The noble Lord, Lord Lipsey, has generously—

[Baroness McIntosh of Hudnall]

My Lords, will the noble Lord concede that few if any Members of your Lordships’ House believe, as far as I am aware, that the current arrangements could continue for much longer? The question is not whether reform is needed but what kind.

[Lord Tyler]

The noble Baroness is right, but there is no proposal yet on the table. I am illustrating the cost implications of the Joint Committee’s report. The noble Lord, Lord Lipsey, has generously already cut his cost estimate by £100 million at least. In fact, the year one extra cost might be—

[Lord Lipsey]

My Lords, my patience is great but has now been exhausted. I prepared the best costing possible of the Government’s proposals. It is perfectly true, as I said in my speech yesterday, that the Joint Committee’s proposals will cost slightly less because they make wholly unrealistic assumptions about what it is possible to do for transitional Members, but I have not cut my costs by £100 million. I stand by my costs. Until the Government or the noble Lord, Lord Tyler, find some better criticism than he puts forward this morning, I shall stand by them to the last.

[Lord Tyler]

I hope the noble Lord will now read the Joint Committee report, because there are specific recommendations in it that do not concur with his conclusions.

The second issue is the media myth that somehow or other the public are completely opposed to any reform of your Lordships’ House. I draw particular attention to paragraph 17 of the report and the footnote. The 2010 British Social Attitudes Survey shows that 59 per cent are in support of wholly or partly elected Members and 22 per cent are in favour of abolition—completely sweeping the House of Lords away and having a unicameral system. That is the real danger. Only 6 per cent wish to continue as a wholly appointed House. That is endorsed by the January 2012 YouGov poll, where 71 per cent support wholly or partly elected Members and 10 per cent support wholly appointed Members. Last week, two more polls showed insignificant figures for a wholly appointed House. Those who—

[Lord Anderson of Swansea]

If all the indicators are that the public are in favour of the reform, why is the noble Lord so adamantly opposed to a referendum? It could only confirm his view.

[Lord Tyler]

I have always been in favour of referendums. I have no problem with a referendum and I will explain why in a minute. I am very grateful to the noble Lord for feeding me that line.

Those who oppose the Government’s evolutionary reform process should remember that this is firmly based on the report prepared by the noble Lord, Lord Hunt of Kings Heath, and Mr Jack Straw. Every element is there, such as the primacy issue and 80:20. I can quote that back to the noble Lord and look forward with huge interest to hearing what he will say in a few minutes from the opposition Front Bench. This Bill builds on that evolution and the work undertaken by the previous Government. It is supported by large numbers of Members on the other side of the House.

[Baroness Symons of Vernham Dean]

My Lords, I am sorry to interrupt the noble Lord, but I am surprised that he is in favour of a referendum. I have in front of me some evidence to the contrary. The noble Lord voted against referendums in the Select Committee.

[Lord Tyler]

The noble Baroness misunderstands the position. I am totally relaxed about a post-legislative referendum, which is how we have undertaken referendums in the main in the past in this country. I will certainly support one when the time comes.

More people are in favour of the abolition of your Lordships’ House—three or four times more—than in retaining a fully appointed House. I hope that Members will recognise that that is a real danger ahead of us. Going back to the noble Lord’s question, that is why, if this House resists clear public pressure for reform, there will come an opportunity for the public to have their say. The longer Members of your Lordships’ House seek to obstruct the public, the more the will of the public will have to be given an opportunity.

[Baroness Farrington of Ribbleton]

My Lords—

[Lord Tyler]

I am trying to keep within my time. I have already been interrupted on a number of occasions and other Members managed to go beyond their time. I am personally very relaxed about referendums. I very much hope that the time will come when the public will be able, as they did 100 years ago, to express their fears about the way in which this House has become so undemocratic.

As I said, I was here for all the speeches yesterday, bar two or three, right through until past midnight. This debate has been notable for the small number of courageous Peers who have stuck to the promises that they have campaigned on for so long. I hope that, when the time comes, they will stick to their principles, too.

[Baroness Farrington of Ribbleton]

Was the question put to the public for a mandate to serve on a similar term to that in the Commons or for Peers to be elected for 15 years and then be unable to stand again? To me, that is not democratic accountability; it is an appointment for someone to say whatever they like for the next 15 years.

[Lord Tyler]

I am sorry that the noble Baroness did not feel able to speak during the debate yesterday; she could have made that point. I will happily discuss with her the four major polls that have been undertaken and that clearly demonstrate support for the evolution of the democratic principle as the basis of representation in this House.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, my noble friend Lady Andrews is right to say that this has been a fascinating debate. I, too, pay tribute to my noble friend Lord Richard, his committee and the clerks for the work that they have done. However, we are also indebted to those members of the Select Committee who produced the alternative report. Taken together, they provide an invaluable reference point for our future debates on reform of your Lordships’ House.

In this excellent debate many noble Lords have questioned the priority that the Government are giving to Lords reform when our economy is in such a perilous position. I agree with that. Over these two days of debate some noble Lords have argued that reform of the second Chamber cannot be considered in isolation from other constitutional issues such as a referendum in Scotland and other changes that the Government are making or have made. I agree with that. However, we will have further ample opportunity to debate those wider issues when we discuss the Queen’s Speech. I would like to focus my remarks on the role and powers of an elected second Chamber and its relationship with the Commons. The Joint Committee has identified this, as have most other noble Lords, as going to the heart of the controversy over Lords reform.

The noble Lord, Lord Tyler, teases me about my position and that of the Opposition. I make it clear that the Official Opposition support reform of your Lordships’ House. We are proud of the legislation that we introduced in 1999, which removed most of the hereditary Peers. In the years since, this House has become ever more effective as a House of scrutiny and revision. It is this House that has held Ministers properly to account and has so often saved Governments from themselves. Would the other place have acted similarly? I want to see reforms make us better still. The Official Opposition support an elected House. However, that must not be at the expense of primacy of the Commons, nor must it threaten gridlock or detract from our role as an effective revising Chamber. Further, these changes should take place only with the specific consent of the British people.

Mr Clegg told the other place on 20 March 2012 that nothing in his plans would change the primacy of the Commons. Remarkably, he denied that there was an automatic link between changing the composition of the Lords and changing the balance of power between the two Houses.

[Lord Tyler]

My Lords, I would like to refer to the noble Lord’s work on this issue as we have been through so many of these discussions together. The 2008 White Paper on an elected second Chamber states:

“There is no reason why any further increase in the authority and effectiveness of the second chamber following elections should undermine the primacy of the House of Commons”.

I suspect that the Prime Minister and Deputy Prime Minister are quoting the noble Lord. If he would like me to go through all the other ways in which he has endorsed what is now in the draft Bill—for example, as regards the 80:20 ratio—I would be very happy to do so, but he should reread his own work.

[Lord Hunt of Kings Heath]

My Lords, I am most grateful to the noble Lord for reminding me of the heroic efforts that I, other noble Lords and Members of the other place made in producing that White Paper. However, that was work in progress. We tried to reach consensus. The problem we have is that when Mr Clegg took over responsibility for this matter he convened a joint group of all the parties and when my noble friend raised the issues of powers and a referendum, that group met no more. We now have the benefit of the work of the Select Committee and of the alternative group, which has taken the debate on powers and primacy further than it has ever been taken before. We need to listen to what those reports say.

We should remember that very few noble Lords agree with Mr Clegg’s view. There is now an overwhelming consensus that an elected House would affect the balance of power. Whether it affects primacy is another question but it would certainly affect the balance of power between the two Houses. We heard the noble Lord, Lord Ashdown, say yesterday that he would like an elected second Chamber to be able to veto the UK going to war. We heard a statesmanlike speech from the noble Lord, Lord True, but even he, too, talked about Houses that are co-equal. The problem that we have comes back to Clause 2 of the draft Bill, which states:

“Nothing … affects the status of the House of Lords … the primacy of the House of Commons … or the conventions governing the relationships between the two Houses”.

The problem, as the Select Committee itself pointed out, is that, “a major difficulty” with Clause 2 is that it,

“seeks to establish a series of negative propositions”,

in relation to “key terms”, such as,

“status, primacy, powers, rights, privileges, jurisdiction and conventions”.

There is no existing body of statute defining these key terms.

The Government have clearly rejected at this point proposals to set out in statute the powers and relationships between the two Houses, and to amend the Parliament Acts. The reason is that a complete statutory codification would lead to tensions as to where the boundary lay between Parliament’s own processes and the courts’ interpretation of statute law. I understand that argument, but my point is this: those tensions will be nothing as to the tension between two elected Houses vying for supremacy—and they will vie.

We are clear that Clause 2 will not do. My noble friend Lord Richard tells us that Clause 2 will not do. I hope that the Minister, when he responds, will not simply say that we can tinker around with Clause 2. The overwhelming argument put to him in this debate is that the Government have to go away and think again about how to define the powers of and relationship between the two Houses.

I should like to come back to the Parliament Acts and the preamble to the 1911 Act. It suggested that for a Chamber constituted on a popular basis new proposals would be needed,

“limiting and defining the powers of the new Second Chamber”.

Why have the Government not made such proposals for limiting or defining those powers? What does the Minister have to say in response to the evidence of my noble and learned friend Lord Goldsmith and the noble Lord, Lord Pannick, that the drafters of the 1911 Act did not intend its provisions to apply in the event of a second Chamber being constituted on a popular basis? The Leader of the House, the noble Lord, Lord Strathclyde, rather ducked that point in his opening speech—but it is a crucial point. It is perhaps the most crucial point of all. Yesterday, my noble and learned friend Lord Morris of Aberavon regretted the absence of the Attorney-General’s advice to the Select Committee on the Parliament Acts. I ask the Minister why that advice was not made available, and will it be put at the disposal of Parliament if a Bill is introduced following the Queen’s Speech?

I turn to the conventions. The committee of the noble Lord, Lord Cunningham, said that in a formal sense the Lords has equal status with the Commons as a House of Parliament in initiating Bills and passing them, subject to financial privilege and the Parliament Acts, and equal status in approving delegated legislation. In reality, as that committee said, the formal position has come to be moderated by conventions reflecting the primacy of the Commons, and those conventions are “flexible and unenforceable”. Indeed, the Joint Select Committee comments that:

“It is paradoxical and self-defeating to refer to conventions in statute”,

as the draft Bill does. The report continues,

“once the meaning of a convention had been legally determined, it would no longer be a convention”.

The committee’s solution is that the two Houses should, following reform,

“establish a means of defining and agreeing the conventions … by the adoption of a ‘concordat’”.

However, by that time it will be too late. What if there were no agreement? In any case, do conventions have anything to offer between two competing elected Chambers, each claiming equal legitimacy?

Meg Russell, of the Constitution Unit at UCL, said that,

“elected chambers … feel free to use their powers to the full, in a way that the House of Lords currently does not”.

The Joint Committee said that if the Lords,

“chose to use its powers, it would be one of the most powerful second chambers in the world”,

and that the reformed second Chamber,

“should have an electoral mandate provided it has commensurate powers”.

However, few would want to see both Chambers locked into endless conflict, and the logical outcome of this is that the role, functions and powers of the House should be determined and agreed before any change is made to its composition.

On the question of a referendum, surely the British people should have the final say. An elected second Chamber would be a major constitutional change. Surely no one could disagree with that. It is rather more important, I suggest, than decisions on mayors—even on the Mayor of Birmingham—or the minutiae of European legislation. It is as important as voting systems for the House of Commons. On all these matters, the Government have recognised the need for the people to decide through a referendum. The Joint Select Committee has so recommended, yet Mr Clegg dismisses it out of hand. What is the Deputy Prime Minister so frightened of?

[Lord Hunt of Kings Heath]

Democracy, ah! He told the House of Commons on 20 March that a referendum was not appropriate because he proposed to reform the composition of the House, rather than abolish it. Surely that is disingenuous. Whatever our arguments about reform, elections or non-elections, these proposals are fundamental and change the second Chamber. In fact, Mr Clegg’s arguments have moved on since 20 March —understandably perhaps. We are now told that we cannot have a referendum because Lords reform was in the three party manifestos at the last election. However, my party’s manifesto said that we would have a referendum. The noble Lord, Lord Forsyth, reminded us that the Conservative Party manifesto pledged to work towards a consensus for a mainly elected House. I imagine that it related to a consensus in the normal sense of the word, rather than the interesting interpretation made by the noble Lord, Lord Strathclyde, yesterday. The coalition agreement, to which we all dutifully pay obeisance committed only “to bring forward proposals” on Lords reform. Mr Clegg’s arguments are as thin as his draft Bill.

As for the remarks of the noble Lord, Lord Tyler, about his own heroic role on this question, I refer him to page 163 of volume 1 of the Joint Committee’s report, which records the vote that took place on the issue of whether the Government should submit to a referendum the decision on changes to the second Chamber. There were 13 contents and 8 not-contents, and the not-contents included the noble Lord, Lord Tyler.

[Lord Tyler]

The noble Lord is really kind, but it was quite clear from the discussion—and of course he was not present—that that was intended to refer to a referendum on the Government’s proposals. I have always said, in common with most of the other decisions taken by this country in referenda, that they should be post-legislative. That was what I was referring to very clearly in my speech today.

[Lord Hunt of Kings Heath]

My Lords, what the report says is:

“The Committee recommends that, in view of the significance of the constitutional change brought forward by an elected House of Lords, the Government should submit the decision to a referendum”.

That is pretty clear. The noble Lord is being rather pedantic on that point.

Time moves on. We have debated many other issues and I wanted to pick just three from our debates. First, on the question of representation, the noble Lords, Lord Trimble and Lord Dubs, made some excellent points that elected Lords will expect to represent their constituents and should be resourced to do so. That must be part of their accountability to the electorate. We cannot have a situation whereby elected Members of Parliament are discouraged from direct contact with their constituents and almost inhibited from helping them with constituency cases.

On hybridity, I sense strong concern in our debate. One can see why it would be attractive to retain an independent element in an elected House, but I suspect that the 20 per cent appointed Members would feel increasingly uncomfortable and isolated in a House dominated by elected politicians. If the votes of the appointed Members helped to thwart the views of a majority of elected Members, I doubt that they would last very long. I well remember when we were in government, particularly in the early days, that when we lost votes, we put out press notices which showed that it was because of the way that hereditary Peers had voted. The temptation for any political bloc to do that would be overwhelming. Hybridity is a nice idea. One understands why it is being put forward, but I sense that in two days of debate, the argument has fallen.