Parliamentary Voting System and Constituencies Bill

Lord Wallace of Tankerness Excerpts

Monday 20th December 2010 Lords Chamber

[Lord Campbell-Savours]

My Lords, I will intervene only briefly because I do not want to get into this whole debate about individual registration once again. I spent hours on my feet in Committee on two pieces of legislation that went through under the Labour Government that introduced this monstrous piece of legislation on individual registration. It will be to our ultimate cost but that is an argument for another day. All I want to say is that I intervened in the speech of my noble and learned friend Lord Falconer of Thoroton on the question of inner-city constituencies because there is a real problem developing here. Because of lack of registration and this national formula, we will end up with fewer inner-city seats but ones that have vast populations.

We must remember that inner-city seats involve far more work. I remember when I was the MP for Workington, comparing my constituency workload with that of some of the London MPs. They got three or four times the volume of mail that I did—so much so that they often simply could not provide the level of service that they wanted to in their inner-city seats. I thought I was being heavily pressured by constituents. One of the major problems in inner-city seats is to do with immigration, often involving groups of people who are not registered at all and who cannot register. That is in addition to the general problem of higher population. I simply do not believe that the Government have taken this whole matter into account. They say, “Oh well, local authorities can simply put the resources in”, but they cannot. I say again that my own Government failed to ring-fence these budgets. However, if we had known that this legislation was coming, we might well have had to think more seriously about the need to ring-fence budgets in this area. In some ways we are now paying the price for not having done so. I invite Conservative Members to ring up some of the electoral registration officers that I have talked to, who complain that they simply will not be able to deliver on the Government’s agenda in this area.

Finally, when we look at this debate it is important to consider what happens in rural Conservative seats with what I believe to be a far lower level of casework as against the position of city centre seats in London, Birmingham and Sheffield. We should actually consider the different workload. I think many Conservative Members simply do not understand the weight of additional work that arises in those constituencies. I cannot see any way around it. There is nothing in this legislation that is there to help; we have had no undertakings from the Dispatch Box that we are going to get over this problem. My noble and learned friend Lord Falconer of Thoroton has repeatedly raised this question of higher populations in inner city seats and we have heard nothing from the Government. As this Bill progresses through Committee I think we are going to find that a lot of our debate revolves around that particular issue.

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

My Lords, in introducing his amendment the noble and learned Lord, Lord Falconer of Thoroton, correctly identified that this would add a third precondition to the order being laid to implement those parts of the Bill in the event of a yes vote in the referendum and the introduction of the alternative vote.

Perhaps it will not come as any surprise to your Lordships’ House that we cannot accept that there should be a further condition. We are not quite sure what “substantially up to date” means and, quite frankly, no case has been made as to why it should be done with regard to setting this order in motion as opposed to the fundamentally important point—on which I would substantially agree with what has been said not only by the noble and learned Lord but by other contributors—of getting a more accurate electorate. Indeed, I would say that even if there were a no vote in the referendum it should not in any way diminish the wish and the objective of trying to ensure that the electoral register is made as accurate as it possibly can be. It is important that it should be as up to date as possible but I do not believe it should be a condition of the commencement of the AV provisions.

As noble Lords will be aware, the electoral registration officers across local authorities in the United Kingdom already have a statutory duty to take the steps that are necessary to maintain the registers and the commission has a statutory responsibility to promote public awareness of electoral registration and elections and to set and monitor performance standards and electoral services. It is worth noting that the report to which the noble and learned Lord referred, The Completeness and Accuracy of Electoral Registers in Great Britain, published in March this year, reported a registration rate in the United Kingdom of 91 to 92 per cent. That compares reasonably well with other countries. Furthermore, the commission’s report, Performance Standards for Electoral Registration Officers in Great Britain, also published in March, showed that just under 96 per cent of electoral registration officers met the completeness and accuracy of electoral registration records standard this year, a considerable improvement on the previous occasion.

[Lord Campbell-Savours]

When the Minister quotes such a figure as 91 per cent, does he mean that 91 per cent of the population are registered or does he mean 91 per cent of the households in the particular area have submitted a return to the registration officer?

[Lord Wallace of Tankerness]

As I understand it—if I am wrong I will certainly make the correction—it is not of the population because obviously there are members of the population who are ineligible to appear on the electoral roll. I understand that it is the figure of those who are eligible to vote.

I take the important point made by the noble and learned Lord that there are groups—young people, people in the private rented sector, people from ethnic- minority communities—where the figure of non-registration is disturbingly high.

[Lord Foulkes of Cumnock]

If the Electoral Commission can produce that figure of 91 per cent registered of those eligible to vote, then it must have a figure of those eligible to vote. If it has a figure of those eligible to vote why not use that figure in each constituency rather than the registered figure?

[Lord Wallace of Tankerness]

I understand that. If I am wrong, I will readily correct it. However, the point is, as I understand it, that that is trying to compare like with like. It compares reasonably well with other countries, but I readily acknowledge that within that there are groups which are considerably under-represented. The information I have been given is that the figure is 91 per cent of those in the population of voting age.

[Lord Foulkes of Cumnock]

In order to calculate that the figure is 91 per cent of the people of voting age, you must know how many people there are of voting age in each constituency. Surely that figure could be used for the boundary reviews, rather than the number of people who have bothered to get their name on the register, and it would be much more accurate.

[Lord Wallace of Tankerness]

It is indicated that voting age may not always mean eligibility to vote, because there might be occasions when people may not be United Kingdom citizens, or be Commonwealth citizens or citizens of the Republic of Ireland, and would thereby be ineligible to vote.

The two important points are, first, that that 91 per cent figure is reasonable and compares well with other countries and, secondly, there are still within it groups where the registration rate is not, by any stretch of the imagination, satisfactory; and I believe that there is an obligation to address these issues.

[Lord Lipsey]

My Lords, it is very helpful to have this information from the Minister, but the real point is that it is not what the overall level of registration is, or what the level of registration within groups of the population is; it is what the variation is in the level of registration between constituencies. It is constituency sizes that you are trying to equalise on the basis of these registration figures, and 91 per cent overall could easily hide a difference between 80 per cent at the lowest and 99 per cent at the highest.

[Lord Wallace of Tankerness]

It follows on from what I have said that I have implicitly acknowledged that point, because clearly there are some constituencies where the kind of groups that I have indicated have a lower registration rate tends to be more concentrated. To be fair, the noble and learned Lord, Lord Falconer, alluded to the information on that from the reports from the Electoral Commission that have been referred to.

[Lord Lipsey]

The noble and learned Lord says that it is possible on the basis of knowing what groups are in which constituencies to make a pretty good estimate of the percentage of registration in each constituency. It would be helpful if he published for the House a document setting that out, so that we can see what the variance is. It is not on the variance that these equalisations will happen; it is on the basis that they are all plumb right.

[Lord Wallace of Tankerness]

My Lords, I hope that there is no dispute between any parts of the House that it is important that we try to improve voter registration, and I can assure the House that the Government are committed to ensuring that the electoral register is as accurate and as complete as possible. That is why we are taking forward and progressing towards individual registration. I know that the noble and learned Lord agreed that we were taking along what had been set in motion by the previous Administration, although I understand that there are disputes about that on his own Back Benches. In addition, we are introducing measures such as data-matching schemes to help local authorities gain as complete a picture as possible of eligible voters in their area.

The noble Lord, Lord Rooker, and the noble Lord, Lord Foulkes, made reference to the census. It was a helpful suggestion. In a previous incarnation in Scotland, I had some ministerial responsibility for the census, and I am only too aware of the sensitivities attached to that. I rather suspect that the Office for National Statistics has thought about the degree to which it would be practical to mix the census with another exercise and the effects that that could have. I do not have the information to hand on whether the ONS has made that analysis, but I would nevertheless be happy to look into that issue. It might also be possible, although I cannot give any definitive answer, for the information from the census to inform us in the future. As the noble Lord, Lord Rooker, indicated, there are sensitivities about data protection, but perhaps it may be possible for that information to be available for informing further efforts to improve voter registration.

I confirm that we are piloting data matching between electoral registration officers and public authorities to identify people who are not on the register and target them for registration. We have just run a process for applications and the pilots will occur next year. I say to the noble and learned Lord that the boundaries have always been drawn on the basis of the register, and, as he correctly pointed out, the review date will be in two years and 10 months. As the report is due on 1 October 2013, the review date would be 1 December which has just passed, which, in answer to the noble Lord, Lord Foulkes of Cumnock, would be too late. However, I hope he will agree that it is not too late to try to encourage people to get on to the register for the purpose of voting in the referendum and in the other elections which are due to take place next year.

I also make the point to the noble and learned Lord that, if his amendment were to be carried and the next election in 2015 were held according to a register where the review date was some 10 years ago, the distortion might be even greater. I also point out that, under the Bill, we are seeking to have a review every five years. That would allow us the opportunity every five years to improve and, it is hoped, to take advantage of the improvements to which we are committed and which I know the Administration of which he was a member subsequently supported. My noble friend Lord Rennard paid proper tribute to the work that was done by the previous Administration to try to increase voter registration with a rolling register. These are worthwhile initiatives and we want to continue with them.

[Lord Campbell-Savours]

When will the first boundary review take place based on individual registration statistics?

[Lord Wallace of Tankerness]

According to the terms of the Bill, I think that the second boundary review will report on 1 October 2018. The noble and learned Lord indicated that there were difficulties involved in rushing registration and we have taken that on board. However, I cannot be absolutely certain about the extent to which that will be fully fed in for the report that comes out in 2018, with, I think I am right in saying, a review date of 1 December 2015. I hope that my arithmetic is correct. We hope to make substantial progress with individual registration ahead of that date.

I hope to reassure the Committee that this is an important issue and that that is how the Government are treating it. We have put in train measures to try to increase voter registration but we do not believe that that should be a precondition for the introduction of the alternative vote system. However, I believe that such an increase is absolutely right in its own terms and that we should make a concerted effort to improve voter registration, not least so that those who are entitled to vote get the opportunity to do so in future elections and, indeed, in a future referendum.

[Lord Falconer of Thoroton]

I express my gratitude to the noble and learned Lord, Lord Wallace of Tankerness, for his response to my amendment. It was gracious and detailed and dealt with the issue. Perhaps I may draw out a number of the points that he made. First, he said—in my view, rightly—that there is an obligation to address these issues. He said that he regarded it as right in its own terms that this issue is addressed, by which I take him to mean that, irrespective of the Bill, it is something that needs to be done. I have not noted his precise words on this but he also accepted that it is an important issue because it effectively disenfranchises the groups on which I think we agree—that is, those in the private rented sector, those in the BME community and young people. That is why it is important.

In effect, he confirmed that, as the Electoral Commission said, we are getting a registration level of 91 to 92 per cent, which means that about 8 to 9 per cent are not registered. Therefore, there is no dispute in relation to the position.

He made a point which had not occurred to me but which seems important—that a review two years and 10 months before the effective date means that the relevant date is 1 December 2010. That means that, if you want to make a difference to electoral registration, you need to move the review date a year forward at the very minimum to make it worth while.

The point that the noble and learned Lord did not deal with is that if, like me, he accepts the importance of dealing with these points, why is this not the obvious Bill in which to do it? If he is serious about dealing with these points, it is obvious that something else is required. The points he relied on to start with—for example, that the electoral registration officers have a duty and the Electoral Commission have an obligation to set a standard, the two particularly good points he relied on—are not only not improving the position but would appear from the comparison between the 1991 position of 7 to 8 per cent, and the 2001 position of 8 to 9 per cent. They are not to be leading to an improvement and therefore something else is required.

The coalition has taken the view that it would be wrong to introduce AV without first having equalised the constituencies. Why do the coalition regard the equalisation of the constituencies as more important than trying to get a substantial proportion of that 3.5 million who are not registered on the electoral register?

I am pleased to see the noble Lord, Lord McNally, in his place. I regard him as the public face of the coalition’s defence of this particular Bill. It is hard to imagine a more attractive and handsome public face. What he says in response to practically any complaint about this Bill, and what we are focusing on, is fairness and fair votes. Surely it is fair to the people who are not registered—3.5 million of them—that they get on to the electoral register?

I am grateful to the noble and learned Lord, Lord Wallace, for his full answer, which was a genuine response to what I have said. I will come back with an amendment like this on Report which, because of what the noble and learned Lord has said about the review date, to be meaningful has to give enough time for the coalition to make improvements in relation to it.

Remember that what I am asking for is not a complete and accurate register in every respect but simply a conclusion from the Electoral Commission that it is satisfied, in substance, that all efforts have been taken to get as many people as possible on to the electoral register.

I will not, therefore, press my amendment tonight but I will come back, taking into account the points that the noble and learned Lord made in his response.

--- Later in debate ---

[Lord Lipsey]

Can the Minister tell me why subsection (4) is there?

[Lord Wallace of Tankerness]

The noble Lord, Lord Lipsey, asks a very reasonable question. My understanding is that it is a common provision in the context of a power to commence primary legislative provisions by order. It only allows a limited provision to be made where it is genuinely necessary for the purpose of commencing the AV provisions, and the transitional saving power cannot be used to amend either the Bill or any other piece of legislation.

It was included simply to provide for unforeseen circumstances which might affect the implementation of provisions in the event of a yes vote. As the noble Lord and, indeed, your Lordships may be aware, the Delegated Powers and Regulatory Reform Committee has published its report on the Bill and recommends that the power in Clause 8(4), the one which the noble Lord seeks to delete, should be subject to negative procedure. We have noted the concern of the committee that this power might enable the Government to determine which form of voting system should apply in the case of a particular parliamentary election.

--- Later in debate ---

[Lord Falconer of Thoroton]

Does the drafting work? Is it appropriate? Why is it not in there? These are the questions for the Government. It might not necessarily be in the form or in the shape that the noble Lord, Lord Campbell-Savours, put it, but as an alternative that the Government can select, after a proper consultation. Ultimately, one way of dealing with this issue would be for there to be a simple referendum on replacing first past the post with AV. Assuming that there was a yes vote—ignore the complications that we talked about earlier on—choosing which of the three systems was best could be done by the Government. There could still be compulsion in introducing AV, but there could be a proper debate with the public and in Parliament as to which is the best system, rather than the way it is done at the moment, which is that the Government have selected a particular system of AV, about which there has been no consultation and no explanation to the public. There are two questions. First, is the drafting right? Secondly, why not incorporate in the Bill the three options and allow Parliament to decide after a public consultation which is the best?

[Lord Wallace of Tankerness]

My Lords, I appreciate the fact that, in introducing the amendment, the noble Lord, Lord Campbell-Savours, said that he did not wish to re-rehearse the issues on the supplementary vote, which we have already been through. Was it on day three of Committee? He gave us the Hansard references. Indeed, I do not want to rehearse again the reasons why the Government do not support the supplementary vote for the purposes of the Bill that were outlined by my noble friend Lord Strathclyde. I do not think that the House would welcome being detained at present.

We believe that the noble Lord’s amendments would limit voters’ choice in expressing preferences for the candidates who would be standing for election, as they would be able to express a preference for only two candidates. Our preference, if I may put it that way, is that there should be more optional preferences that can be exercised by voters without any compulsion to vote for each candidate.

There is clearly a difference of view about the type of system that should be used. I note that the noble Lord, Lord Campbell-Savours, said that it was not the classic supplementary vote but perhaps the supplementary vote with cosmetic—

[Lord Campbell-Savours]

Tweaked.

[Lord Wallace of Tankerness]

The supplementary vote, but tweaked. That does not commend itself to the Government, who have indicated that their wish is for the system that I understand goes under the term optional preferences. The noble Lord has indicated that he is not pressing his amendments, but I have no doubt that we will return to this.

[Lord Campbell-Savours]

The Minister did not deal with my central question and the reason why I moved the amendment. In terms of legislative language, is it in good order?

[Lord Wallace of Tankerness]

Certainly not in order to achieve the objective that we as a Government wish. No doubt, however, it would achieve the objective that the noble Lord wishes. If he has any suggestions about the drafting of other options, we would be happy to hear from him. Still, so far as I am aware, the amendment would probably achieve what the noble Lord wishes to achieve but certainly not what the Government wish to achieve.

[Lord Campbell-Savours]

At this stage, on the basis of the response, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

There now appears to be agreement that we all want an X against one name only to count as the first preference. The only issue appears to be whether or not one puts that in the Bill or in guidance. If one is changing the system and saying that the way you vote is by marking a 1, I should have thought that the sensible way to do that was by making it clear in the Bill. I support the noble Lord, Lord Norton, the noble Lord, Lord Hamilton, and, above all, the noble Lord, Lord Lipsey. I hope, although I accept that redrafting is required, that the noble and learned Lord, Lord Wallace of Tankerness, who has proved to be a gem, if I may say so, can see that.

[Lord Wallace of Tankerness]

In response to the amendment, the noble Lord, Lord Lipsey, has indicated that I might send him home happy. I hope that in the spirit of the remarks I am about to make he will still go to his Christmas retreat a happy man. As the noble and learned Lord, Lord Falconer, said, the amendment as drafted would not necessarily meet the point, but I hope that I can give the noble Lord, Lord Lipsey, and other noble Lords who have supported him, some clear reassurance.

The amendment is unnecessary because in Schedule 10 to the Bill, on page 294—which I hope we will get to one day—it is stated at paragraph 6(2C) that under rule 47:

“A ballot paper on which the voter makes any mark which … is clearly intended to indicate a particular preference for a particular candidate, but … is not a number (or is a number written otherwise than as an arabic numeral), shall be treated in the same way as if the appropriate number (written as an arabic numeral) had been marked instead”.

I hope that that addresses the issue. If there is one X, it will be very clear.

The important point is that the returning officer has discretion to make a judgment as to whether a clear intention has been made. That is why two Xs would not demonstrate a clear intention. I believe that one X would demonstrate a clear intention and that is provided for in the rules.

[Lord McAvoy]

In the past, I have seen a cross on someone’s name, which has been interpreted as, “We don’t want this one, and I am ruling them out”. Perhaps the situation is not quite as clear as the noble and learned Lord genuinely thinks.

[Lord Wallace of Tankerness]

It is a matter for the returning officers to determine ultimately whether they believe an intention has been indicated.

[Lord Falconer of Thoroton]

I thought that the general agreement around the House was that if there is an X against only one name, we want the returning officer to say yes. That is a vote for a first preference. If you are saying that X is okay, but you are leaving it to the returning officer, that seems to be inconsistent. Why not put it in the Bill?

[Lord Wallace of Tankerness]

There may have been a misunderstanding. I wanted to make a particular point to the noble Lord, Lord McAvoy, who said that an X had been put through a name, rather than against it. There was a suggestion that in such cases, far from wanting a candidate, the voter did not want them. Those are circumstances where it would be invidious to suggest what would happen. Certainly when an X is marked against a name, it is clear from the provision in the Bill that the vote would be valid.

The noble Lord, Lord Campbell-Savours, is concerned —and I understand his concern—that this might lead to undermining the system. I think it was the noble and learned Lord, Lord Falconer, who indicated that if there was a yes vote in the referendum, in the run-up to a general election in 2015 there would be advertising making the position clear. There were indications that that actually happened in the Scottish elections where a single transferrable vote requiring numbered preferences was used.

The night is drawing on but perhaps I may relate one small anecdote. I stood in the first ever European election in the south of Scotland and I have the dubious distinction of being the first person ever to lose their deposit in a European election. I have no doubt that my noble friend Lord Alderdice will recall that the 1979 European elections in Northern Ireland were carried out on the basis of the single transferable vote, whereas in the rest of the United Kingdom they were carried out on the basis of first past the post. A corner of Galloway in the south of Scotland received Ulster TV, on which the advertising encouraged people to use their vote by marking 1, 2 and 3. In several polling stations in that part of Galloway a number of ballot papers were marked with a 1, 2 and 3, although the election was on the basis of first past the post. However, there was agreement that the number 1 on a ballot paper would be accepted as a valid vote.

Let us not underestimate the voters. There will be ample advertising to indicate that the nature of the election will be a preferential vote system. I do not believe that that will undermine the election or that it will give rise to the concerns raised by the noble Lord, Lord Campbell-Savours.

[Lord Campbell-Savours]

On the question of undermining, has the noble and learned Lord, Lord Wallace of Tankerness, consulted his election guru sitting near to him on his right and asked him what he thinks the effect of this would be in terms of undermining the AV system, which he has been advocating so passionately over recent weeks? He is sitting there and has not said a word. It would be very interesting to see whether he is prepared to get up and advocate this when he knows that Liberal Democrats more widely would be opposed to it.

[Lord Wallace of Tankerness]

I do not think that anyone is advocating this—in fact, the opposite is true. We want to make sure that there is a proper advertising campaign for the system. I hope that I have said sufficient and that what is already in the Bill is enough—that is, if someone places an X against a candidate’s name, the intention will be clear. It will be taken as being the equivalent of putting a 1 and the vote will count.

[Lord Lipsey]

The Minister is in such a jolly mood that I am reluctant in any way to spoil his anticipation of hogmanay by cavilling at his remarks. However, I should say that the last time a Minister pointed to a schedule to the Bill as being the right place to deal with a certain issue, I read that schedule for the first time and found that five amendments badly needed to be made to it. They now feature on the Marshalled List and will be debated by us in the new year.

I have heard what the noblea and learned Lord has said and I have looked at the schedule to which he referred. I cannot help thinking that there is a bit of a clash between the words in the first part of the Bill and those in the schedule. A helpful way forward—I suggest this to the Minister with due humility—might be if the Association of Electoral Administrators were to write to him and he made available to the House a statement saying that the association would interpret the Bill as it stands with those two provisions in the way that he has suggested they should be interpreted—namely, that a mark against one candidate will be accepted. If he were able to make that small concession, I would happily drop this amendment and not resurrect it on Report.

[Lord Wallace of Tankerness]

The noble Lord is inviting the electoral registration officers to write to me and clearly, if they do, I shall make what they say available. The schedule states:

“A ballot paper on which the voter makes any mark which … is clearly intended to indicate a particular preference for a particular candidate”—

I think I would include within that putting an X or even a tick against a person’s name—

“shall be treated in the same way as if the appropriate number … had been marked”.

I hope that the wording there is clear but obviously the electoral registration officers may wish to clarify that. I suspect that it will be a while before we get to Schedule 10, although perhaps not as long as might otherwise be the case.

[Lord Foulkes of Cumnock]

The noble and learned Lord mentions an X or a tick, but would even HMFC in a maroon heart be acceptable?

[Lord Wallace of Tankerness]

I am very doubtful about that last one but I could not possibly make a decision on it.

[Lord Lipsey]

I think that the noble and learned Lord would do well to try to get something that nails this point once and for all before we reach the schedule. We have been discussing it for 26 minutes tonight and we can discuss it for another 26 minutes at a later stage, whereas it is well within his powers to deal with it by getting in writing from the appropriate electoral registration officers a clear statement of how they read the Bill. I think that it can be read in two ways, although I accept that his way of reading it is one. With that, and given the hour and the imminence of the festivities, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

It is a matter of saying, “How much do you like me?” and being told, “Not enough to give you the whole of my vote”. The answer could be maybe a quarter, a fifth or a sixth. The candidate says, “Unfortunately, there are only four candidates in this, so you can’t give me a sixth”. I do not think that it is realistic. I recognise the problem, but I do not favour the solution. I described the noble and learned Lord, Lord Wallace of Tankerness, as a gem but what I meant was a pearl.

[Lord Wallace of Tankerness]

I am not quite sure how to take that. I start by reassuring the House that although I have an interest in electoral systems, I cannot recall ever going to bed thinking about them. I doubt I will even do so tonight.

The noble Lord, Lord Rooker, has put forward a system that would involve some fractional vote. As I read his amendment, at first I thought, as the noble Lord, Lord Campbell-Savours understood it, that the second preference got half of a vote, the third preference got a third of a vote, the fourth preference a quarter of a vote, and so on. However, in the light of the comments the noble Lord made on 8 December, his intention may instead be that where there is no winner in the first round of counting, and a further round of counting is necessary, the value of any votes reallocated from the eliminated candidates to the candidates who are still in the count would be determined by the position the eliminated candidate had in the first round of counting. In other words, if the eliminated candidate finished fifth, the value of the reallocated vote would be one-fifth and so on. The fact that there is that dubiety in the amendment—when I first read it, I took it to mean the same as the noble Lord, Lord Campbell-Savours, obviously did—underlines the complexity that arises.

My noble friend Lord Lamont said that the important thing, in terms of simplicity for the voters, is that they are invited to number their candidates 1, 2, 3 and 4 and, if there is complexity, that is for the counters to work out. If we went down the road proposed by the noble Lord, Lord Rooker, there would be some complexity when we were being interviewed by Jeremy Paxman and we were trying to explain where the one-quarter vote and the one-fifth vote came into it. However, I also take the point that the noble Lords, Lord McAvoy and Lord Lipsey, and others made, that although at one level voters are invited to order their preferences as 1, 2, 3 and 4 so far as they wish, there nevertheless is a requirement that they have some understanding. They do not need to know all the complex details, but they need to have some understanding of how the system will work.

The purpose of the alternative vote with the system that we are proposing is that it gives equal weight to votes that are still in the count. That meets the clear, simple and practical tests that the noble and learned Lord, Lord Falconer, suggested that there should be. The amendment goes against that; it says that some votes should count for less. Where some would say that people “part company”, I would suggest instead that there is a misunderstanding of the position in failing to make the distinction between a preference and a vote, or in somehow suggesting that if, for the sake of argument, the BNP came last and were first to be eliminated, it would be the second preferences of the BNP’s vote that determined the outcome. In fact, it would be the voters’ second preferences that determined it.

It was said that everyone should have two votes and it is not right that, at the second count, someone has only one vote, whereas the person whose second preference has been transferred has two votes. In fact, at the second count, the person who expressed the first preference and who is still leading has a vote again. The vote still counts as a full vote in the second count.

[Lord Lamont of Lerwick]

How can the Minister describe the situation where, let us say, the BNP voters’ second preferences just push the top person over 50 per cent, as “50 per cent of the votes”, when the other preferences of all the other candidates are ignored? That is not 50 per cent in any meaningful sense.

[Lord Wallace of Tankerness]

It is the preferences of the votes allocated to those who are still in the count, as it were. If someone has been eliminated from the count, it is not the party’s vote that is being transferred—it is the voter’s preference that is still being allowed to have a value.

[Lord Campbell-Savours]

I think that the noble and learned Lord has missed the point of the noble Lord, Lord Lamont, which is critical to the operation of AV. The noble Lord has hit it right on the head. The additional preferences, the second preferences, of those voters who voted BNP as their first preference, when transferred, could take the top candidate over the 50 per cent threshold and thereby secure the election of that candidate. At the same time all the other second preferences, or whichever preferences, of all the other candidates would be completely ignored. That is the central flaw in the AV system, which is why Conservatives should be opposing it. The only AV system that gets over that problem is the one that I designed—SV. It is built to avoid precisely that happening, because the second preferences are all transferred in one go to the top two candidates, and you avoid all that nonsense. The noble Lord hit it right on the head.

[Lord Wallace of Tankerness]

Because of that second count, everyone, other than the person who came bottom the first time, still has their first preference. It is the first preference that counts then, and it may be that the person who came top the first time gets elected or the person who came second takes over. Those people’s first preference will still count. Some people say that you might prefer your second preferences over your first; that is a matter for the individual voter. However, this allows individuals to give their first preference to the party that they actually want to support, and then they can vote for a second preference, a third preference and so on.

[Lord Campbell-Savours]

Why should it be only the second preferences—those cast as the candidate at the bottom—that are the ones to take them over 50 per cent? Why just those? Why not all the others?

[Lord Wallace of Tankerness]

That is the way that particular system works. It is the system we have used in this House for electing the Lord Speaker. I do not recall anyone challenging the validity of the system working for that purpose. It is the system that works in Scottish local government by-elections and I have never heard any suggestion that it is perverting the result.

What it could do is potentially dissuade voters from exercising the wider choice that is offered by the alternative vote. If it may be suggested that their subsequent preferences are somehow not going to have any weight at all, they may be deemed to be wasted votes. I would hope there was some degree of consensus that, whatever system you wish to adopt, the idea of having a wasted vote is one we should seek to avoid. By the proposal put forward in this amendment, some votes, if they are down to fractions, cease to have the value which I should like to see—

[Lord Falconer of Thoroton]

What if you have wasted a vote and vote for a candidate who does not succeed?

[Lord Wallace of Tankerness]

We could go into the merits of the first past the post system and there are a considerable number of wasted votes for candidates who do not succeed. In some cases it can be up to 40, 50 or 60 per cent of votes for candidates who do not win. Under the present system, anyone who votes for a candidate who wins, which is more than a majority of one, is technically described as a wasted vote, too. We are getting into the debate of the first past the post system against the alternative system. That is a matter for the referendum campaign. We could go round the houses debating the relative merits of the system, as I will do during the referendum campaign, but what I am seeking to do for the purposes of this amendment is to indicate that the reallocated votes of the fractional votes imports a degree of complexity and it means that votes do not have full value in subsequent counts, which would happen under the system proposed in the Bill.

[Lord Foulkes of Cumnock]

Some Members opposite seem to adjust the rules of the House as we go along. Up till now, when someone has got up the speaker goes down. I will watch it carefully in future.

The noble and learned Lord, Lord Wallace, used again the election of the Lord Speaker as an example. Previously it was used by his colleagues who also used the election within a party of a leader. These are not party political elections, however, as between parties, as we saw when we ended up with the noble Baroness, Lady Hayman, as the Lord Speaker. Within a party, it is not party political. Surely these are not parallels that can be drawn.

[Lord Wallace of Tankerness]

To suggest that the election of a leader of a party is not political—I understand that it is not party political but maybe it will be factionally political within a particular party and therefore the comparison is apt. Also, as the noble Lord would recognise, Scottish local government by-elections are now conducted on an alternative vote basis and they are very party political.

[Lord Foulkes of Cumnock]

They are also eccentric and aberrant in some ways because, if you take a four-seat ward, as we have had recently in Edinburgh, you can get a councillor of one party which managed to scrape one seat in that four-seat ward, he retires but it is the party which got the three seats which manages to get the by-election success because it is the biggest party. So it is aberrant.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Foulkes, is again rehearsing the kind of arguments that we will no doubt exchange in some television or radio studio in the coming weeks and months. I thank him for giving me forewarning of the arguments that he proposes to adopt. With regard to the amendment proposed by the noble Lord, Lord Rooker, as I have indicated, we do not favour an approach that would involve a reallocation of votes on a fractional basis. There are practical considerations. Nor, I understand, does the Front Bench opposite. There could be complications for voters in understanding it. I take the point that all the voter has to do is go into the polling station and write 1, 2, 3, 4. Nevertheless, understanding is required. I am not aware of anywhere else that uses the system proposed by the noble Lord, Lord Rooker. Therefore, I urge him to withdraw his amendment.

[Lord Falconer of Thoroton]

The noble and learned Lord is right that I do not support this amendment but he is completely wrong to say that we should not debate the anomalies in the AV system that is being proposed. As we keep saying, this is a compulsory referendum so the system that is being adopted must be subject to rigorous scrutiny to see what its shortcomings and anomalies are. The points that the noble Lord, Lord Foulkes, is making are inevitable when you are looking at the detail of a system.

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[Lord Falconer of Thoroton]

The amendment of my noble friend Lord Beecham basically says that, if a candidate gets 5 per cent or less of the vote, the second preference votes for that candidate are not reallocated. I do not think that it necessarily follows that, if you get a low vote, your second preference votes should be any less valid than if you get a higher percentage of the vote. In certain circumstances, one can imagine Green Party candidates, for example, getting a very low vote—well below 5 per cent. The noble Lord, Lord Deben, in regarding Green Party candidates as more worthy than those of the Official Monster Raving Loony Party, is effectively making a value judgment about parties based only on the number of votes that they receive. It seems to me that it is very difficult to see a logical or intellectual basis for saying that 5 per cent or below is not an acceptable figure. Is there a political argument that says that 5 per cent or less is the sort of figure that extremist parties get? Possibly there is but, again, I believe that in relation to an electoral system it is dangerous to start characterising people whom you do not like as “extremist”. Of course, we all regard the BNP as extremist but there are other parties that some of us would regard as extremist and others would not. Therefore, although I understand the purpose of my noble friend’s amendment, I do not think that it stacks up, so I am afraid we will not support it.

[Lord Wallace of Tankerness]

My Lords, I agree with much of the analysis of the noble and learned Lord, Lord Falconer. Just because the total is a small figure, there is no reason why the second preference votes should carry any less value. It is also important to reflect, as the noble Lord, Lord Lipsey, said, that the purpose of a system is to provide a wide choice for voters. Under this system, every vote has equal value and is allocated to the candidate who is ranked highest in the preferences marked on the ballot paper and who is still in the contest. It is only fair to assume that in a second round the person marked as the first preference is the one whom the voter wishes to see come first, and it is important that that vote has full value.

[Lord Foulkes of Cumnock]

Can the Minister help me? I have had a quick look through the Bill and I cannot find any provision, although it is probably carried over from existing legislation, where candidates have to pay deposits and, if they get less than a percentage of the vote, they will lose that deposit. Is that provision still there? If that is the case, I am afraid my noble and learned friend, Lord Falconer, might have to rethink because, if someone is going to lose their deposit, why should the votes be transferred? The threshold for losing the deposit was set at that level for a particular reason. I do not remember when it was set and what the reason was, but presumably it was that the candidate had failed to convince enough electors.

[Lord Falconer of Thoroton]

Where you take someone’s deposit away because they get less than 5 per cent, you are in effect “punishing” the candidate for standing because he could not get enough support. You would be wrong to punish the people who vote for him.

[Lord Wallace of Tankerness]

The noble and learned Lord virtually took the words out of my mouth. There is a difference in that, if there is a penalty on the candidate, it does not follow that the penalty should then be on the voter who has in all good faith expressed a second preference. The noble Lord, Lord Lipsey, made the point that it could be a way to penalise smaller parties, or indeed, as he put it, local campaigns. Let us remember that at recent general elections in this country and at a Scottish election in 2003 a candidate opposing hospital closures won. It might not necessarily have been obvious at the outset that these people were going to get far more than 5 per cent, but the fact that they are perhaps not mainstream in no way means that they should be devalued. It may well put people off from voting for candidates who appear to be coming from a local campaign, or let us say a non-mainstream party, if it was thought in some way that the second preference was not going to count. The object, as the noble Lord, Lord Lipsey, said, is to broaden choice, and I fear that the amendment in the name of the noble Lord, Lord Beecham, would not contribute to that broader choice. I therefore urge him to withdraw his amendment.

[Lord Beecham]

In the circumstances I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

A lot of information is given to candidates and their representatives at the moment that is not leaked, entirely legitimately, and not made public. I would like to hear the Government’s position on this.

[Lord Wallace of Tankerness]

My Lords, as the noble and learned Lord has indicated, these amendments provide that if no candidate is elected at the first stage of counting—that is, if no candidate secures more than 50 per cent of first-preference votes—the returning officer would not make publicly available certain specified information about the state of play at that stage, including the number of first preference votes obtained by each candidate and which candidate was eliminated, but would make the information available to candidates and their representatives only. I have a lot of sympathy with the intervention by the noble Lord, Lord King. It would soon leak out, and I think it is far better that it is done publicly.

The clause is not prescriptive, so it is up to the returning officer in each case how he or she will make that information public. The purpose is so that there is transparency. There is no requirement for an announcement to be made, although the amendment in the name of the noble Lord, Lord Snape, that was recently not moved would have required a public announcement to have been made, and the specified information, which would include the details of the number of votes obtained by each candidate and the candidate who had been eliminated, could well be displayed, for example at the end of each counting stage, in written form or could be relayed on television screens at a count venue.

I was not present at any count on the morning of the last Scottish election because I was in radio studios with the noble Lord, Lord Foulkes, but I understand that at least at one count that my wife attended in Orkney the votes—based on a slightly different system—were being shown on a screen as they were being counted, so it is possible for that information to be made available. I can make it very clear that this is to ensure that the candidate, the media, accredited observers and other persons present at the count are aware of the state of play at the end of the counting stage and that the count is conducted in an open and transparent manner. I hope with that reassurance that it is intended to promote transparency, that it is not prescriptive, that it is a matter for the returning officer as to how that information is made public and that there are ways of doing it in written form as well as by making an announcement, that the noble and learned Lord will not press his amendment.

[Lord Falconer of Thoroton]

I found that a helpful and clear description which, from the sound of it, is a sensible way of doing this. However, I shall read in Hansard what he has said before making a final decision.

--- Later in debate ---

[Lord Falconer of Thoroton]

Clause 9(4) reads:

“The Minister may by order make any amendments to primary or secondary legislation (whenever passed or made) that are consequential on amendments made by this section or Schedule 10”.

It gives the Government a power to amend any section of primary legislation or secondary legislation in order to give effect to these provisions. Normally, we would expect to see the provisions that are being amended so that Parliament has an opportunity to consider them. Why are we not seeing the respective provisions that are being amended, and does this include the power to amend Acts of Parliament made after the passage of this Act? I beg to move.

[Lord Wallace of Tankerness]

My Lords, I can reassure the noble and learned Lord and the Committee that the breadth of the power is limited to amendments that are consequential to the changes being made by Clause 9 and Schedule 10. It is envisaged that in order to introduce the alternative vote system, should that be the wish of the referendum, amendments will be required to provisions in existing secondary legislation which concern the conduct of United Kingdom parliamentary elections. For example, changes will need to be made to certain forms that are prescribed for use at a UK parliamentary election including the poll card issued to electors prior to polling day to provide them with information on how to exercise their vote at the election, and the postal voting statement which postal voters must complete and return with their postal vote, and which again includes information about casting their votes. These forms are set out in secondary legislation. While we believe that all the necessary primary legislative provisions are in the Bill, it seems sensible not to have our hands tied. This power therefore covers any possible consequential changes to primary legislation that may be deemed necessary to implement the alternative vote.

I can offer a reassurance to your Lordships’ House that, as Clause 9 is currently drafted, before making an order under subsection (4), the Minister would be required to consult the Electoral Commission, which would give an independent view on any change. Such an order would be subject to the affirmative resolution procedure and would therefore have to be debated and approved in each House. I can confirm that it could allow amendments to be made to Acts passed before and after the Bill, but as I have indicated, this is for technical issues and not to change any matters of policy. In our memorandum concerning the delegated powers in the Bill for the Delegated Powers and Regulatory Reform Committee, we covered the order-making power in Clause 9.

[Lord Campbell-Savours]

If, by any chance, the Government were to decide before May that the system they have selected should be tweaked in some way, that would require a change to primary legislation. Does not subsection (4) actually preclude such a change being possible in the event that it needed to be made? Should not subsection (4) be a little looser to allow for the possibility that the Government may want to tweak the system in some way?

[Lord Wallace of Tankerness]

I do not think that that would be an appropriate use of the power. It is important that when Parliament determines what the system should be, that is the system which is put to the people in the referendum and should not be tweaked. As I have indicated, this makes provision for amendments to primary or secondary legislation to be made that are consequential and necessitated by this clause or by Schedule 10. As I have indicated, they are related to things like the poll card or the information that goes with postal votes.

Just before the noble Lord, Lord Campbell-Savours, intervened, I was going to end by saying that we have not been made aware that the Delegated Powers and Regulatory Reform Committee has made any critical or adverse comments in respect of these provisions. We believe that they are necessary and appropriate. In the event of a yes vote in the referendum, they will facilitate the implementation of the alternative vote.

[Lord Falconer of Thoroton]

I quite understand the noble and learned Lord’s position in relation to secondary legislation. Clause 9(7) states:

“An order under subsection (4) may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament”.

So we will get an opportunity to debate it.

Does the noble and learned Lord have in mind some provisions of primary legislation? He rather glossed over primary legislation. If changes in primary legislation are envisaged, why are we not being told what they are so that we can address them head on?

[Lord Wallace of Tankerness]

As I indicated—perhaps I did not make it clear enough—we believe that the necessary primary legislative provisions are in the Bill and therefore we do not have anything in mind. I have indicated some of the provisions which are in secondary legislation, but we believe that the primary legislative provisions are already in the Bill. However, it seemed sensible to ensure that we did not have our hands tied if something was to arise.

[Lord Falconer of Thoroton]

That is an interesting answer. Does the noble and learned Lord think it would be sensible not to include this power in relation to primary legislation? It is dangerous to include in a Bill a power to amend primary legislation when you have no primary legislation in mind but think it might be useful later on—particularly in relation to future legislation where you think you might have made a mistake and you then want to use the power to amend it. It appears to circumvent the important scrutiny that this House and the other place give to primary legislation. Will the noble and learned Lord think again about primary legislation? I am happy with secondary legislation.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, the effect of the amendment is that before making an order under Clause 9(4), which allows the Government to,

“make any amendments to primary or secondary legislation … that are consequential on amendments made by this section or Schedule 10”.

At the moment, the Minister has to consult the Electoral Commission. Inevitably, amendments made under Clause 9(4) could affect the position in relation to the Welsh Assembly or the Scottish Parliament. As to how they might affect primary legislation—I see the noble and learned Lord, Lord Wallace of Tankerness, looking troubled by that. He has just said very candidly that he has no idea what primary legislation might be amended by using Clause 9(4). His inability to understand that it might affect the Scottish Parliament or the Welsh Assembly is surprising, I have to say.

Before you produce an order that amends primary legislation, which currently cannot be identified—I am not criticising the noble and learned Lord for that—and which may not even be passed, because it may include future legislation, what is wrong with consulting the Scottish Parliament or the Welsh Assembly? We have had read to us the views of the Scottish Parliament and the Welsh Assembly on a number of occasions about the fact that they were not consulted about the date of the referendum, which is taking place on the same day as the Scottish Parliament or Welsh Assembly elections. They were plainly upset by that. What is the purpose of not consulting? What is the anxiety about consulting? We are talking about a national electoral system here, and a national vote. Surely the Scottish Parliament might have views that could be taken into account. I ask the noble and learned Lord to take that position into account. Points have been made about what has happened this evening. It is four minutes past one now. My understanding of how the House operates is that the Government Whip and Leader consult and then decide what to do. The Leader of the House today appeared not even to consult his own Chief Whip about sitting until four minutes past one. The reason I say that is because I am told by the Opposition Chief Whip that the noble Baroness was proposing that we went on for one more amendment. It might well have been sensible to go on to four minutes past one, but we have done it without, for example, giving the staff warning in advance and without there being proper consultation. All I say to the Leader of the House, who is much liked in the House, is please consult before going on till five past one.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Foulkes, has invited me to give a description of the working of the Scottish Parliament voting system. I will resist that. I do not think that it is necessary. He came to be elected, I suspect, because more Labour members lost their first past the post seats than he had anticipated in the Lothian region. If he has any queries about the system, it is a system which of course he agreed in the constitutional convention. He was a member of the Government that brought it forward and passed it as indeed that Government proposed in primary legislation separate seats for Orkney and Shetland, which I certainly supported, but it was of course a measure which was brought forward in a Bill from a Labour Government. What we are dealing with—

[Lord McAvoy]

Yes, of course it was agreed at the time, and there were many pressures for it, not least the inducement to the noble and learned Lord—I do not mean illegal or anything improper—as I understand it, made by the leader of the Labour Party, the late Donald Dewar, that Orkney and Shetland would get separate seats; of course that was agreed at the time. But does the Minister still think it fair, in an atmosphere where everything has been quoted as fair, that the area that he used to represent gets special treatment compared to mine?

[Lord Wallace of Tankerness]

The previous Labour Government did a wonderful job when they brought forward the proposals for the Scotland Bill, which I was happy to support, and which indeed were endorsed overwhelmingly by the Scottish people in a referendum. But the effect of the amendments brought forward by the noble Lord, Lord Foulkes, would be that, before any order was made under Clause 9(4), the Minister would be required to consult the Scottish Parliament, the National Assembly for Wales, and the Northern Ireland Assembly, in addition, of course, to the Electoral Commission. As I indicated in my response to the previous amendment, the kind of changes that are anticipated under this order-making power are for matters such as the information that goes on the polling card; information that would go with a postal voting statement; matters which currently reflect the first past the post system, but obviously would need to be changed with an alternative vote, should that be the will of the electorate in the referendum.

In all fairness, I am not sure that that is high on the agenda of the Scottish Parliament, the Welsh National Assembly, or the Northern Ireland Assembly. Voting systems for UK parliamentary elections is a reserved matter. It was a matter of common ground in the Act that was put forward by the previous Labour Government, which I was happy to support and was supported by the Scottish people; the Government of Wales Act was supported by the Welsh people in a referendum; likewise for Northern Ireland, where it was agreed that UK parliamentary elections are reserved.

It is not necessary, therefore, for the UK Government to be subject to a statutory requirement to consult the devolved Parliament and Assemblies before making an order, which will be of a technical nature. We are not aware of any similar requirement to consult the devolved Administrations in respect of existing aspects of electoral law relating to UK parliamentary elections.

[Lord Campbell-Savours]

Would they be consulted?

--- Later in debate ---

[Lord Wallace of Tankerness]

I was just going on to say that I accept that when the United Kingdom Government develop proposals in relation to UK parliamentary elections, it is important that issues affecting Scotland, Wales and Northern Ireland are considered as part of the process. The practice of the Cabinet Office, which leads on electoral policy issues, is to work closely with colleagues in the territorial departments—the Scotland Office, the Wales Office, the Northern Ireland Office—on policy proposals. They would be able to highlight any concerns or issues affecting the particular part of the United Kingdom. I have no doubt that, if the Scottish Government or the Scottish Parliament had particularly strong views on the wording of a polling card that would be taken into account but I do not believe that it is necessary given the fact that this is a wholly reserved matter. It has been accepted on all sides that it is a wholly reserved matter that requires a statutory requirement. The Electoral Commission is in a different position, because the Electoral Commission has a host of responsibilities with regard to the material that is published and goes out in association with an election. As I indicated, I am sure that if representations were received from the Welsh National Assembly, they would be considered on their merits, but on a matter which is entirely the responsibility of the United Kingdom Parliament and Government, a statutory requirement to consult is not necessary. I therefore ask the noble Lord to withdraw his amendment.

[Lord Foulkes of Cumnock]

I am grateful to the Minister for his usual courtesy and for his careful and clear explanation. He mentioned that if the Scottish Government or the Scottish Parliament had particularly strong views, even on a matter that is wholly the responsibility of the United Kingdom, they would be taken account of. I do not know if he was in at Question Time today—no, it was when the noble Baroness, Lady Neville-Jones, repeated a Statement about the immigration bar. The Minister will know from his own experience that the Scottish Government and the Scottish Parliament are very exercised about the particular concerns of Scotland in relation to imposing an immigration bar, but, when I asked the noble Baroness whether the Scottish Government had been consulted, she did not even know.

That goes against the kind of assurance that the Minister has given. I am sure that he is genuine and that he is right, but there are people like the noble Baroness, Lady Neville-Jones—I do not know if she has ever been to Scotland; she certainly seems to know very little about it—who do not really pay much attention to what is happening in Scotland. This is a matter of importance. I hope that the Minister, since he has a wider responsibility than just this Bill, will ensure that some of the departments are taking account of Scottish issues.

My noble friend Lord McAvoy raised a number of issues, particularly in relation to what has happened tonight. I ask him to give some sympathy to the position of the noble Lord the Leader of the House. Can you imagine how difficult it must be for him when every time he goes to a Cabinet meeting or bumps into David Cameron in the Lobby he has to explain why he is not managing to get his legislation through? I understand the difficulty that he is in, and it serves him right. No, I sympathise with him. However, I hope that he will also genuinely understand—just as I genuinely understand the pressures that he is under—our concern for parliamentary democracy and scrutiny, which are of absolute importance. He has been on this side of the House often enough, and he will be again—sooner, probably, than he realises. So I hope that he will take account of that.

I welcome the new Members. I am sure that they did not know what to expect. One of them has written a novel about this place, which is how I know there is a toilet behind the Throne; but for that, I would not have known. You learn a lot of interesting things, and I hope that he has learnt some tonight. I really am tempted to push this to a vote, to give them the opportunity on their first day to go through the Lobby, get their name down and get their tick to say that they have participated in the vote. I see the noble Lord, Lord Shutt of Greenland—is it Greenland? Is it Lord Green of Shuttland? I see that the noble Lord is equally enthusiastic about having a voice, since he would be one of the Tellers; I see his happy face every time I go through the Lobby.

I am tempted to vote on this. However, because of the clear and convincing explanation that the Minister gave, and because my noble friend Lady Browning, the noble Lord, Lord Kennedy, and George Reid are on the Electoral Commission now, I have much more faith in it better representing some of our interests. I therefore beg leave to withdraw the amendment.