Parliamentary Voting System and Constituencies Bill

Lord Wallace of Tankerness Excerpts

Monday 20th December 2010 Lords Chamber

[Lord Rooker]

I stand corrected then. I apologise to the noble Lord, Lord McNally, for that. As I say, I was here for all but two hours.

The other point is that there was talk about the previous elections and, to be honest, on this issue concerning equality of constituencies I agree 100 per cent with the noble Lord, Lord Deben. There is nothing between us. If you are going to have one person one vote in a constituency-based system, you have to have the constituencies as near as damn it the same size. This was argued out years ago in the 1970s. I can remember there was an argument at a boundary inquiry. I even remember the late Denis Howell lecturing us and saying, “Look, we might argue for smaller seats in the inner areas because our workload is greater, there is deprivation and there are all the other issues. On the other hand, you have to balance that against the massive distances that country members have to travel. It is different”. What is important is the number people who are voting for one parliament.

Frankly, if you look at the history and take the trouble to read or listen to John Curtice, you will see that Labour lost the 2005 election. I know the arithmetic says we came back with a majority of 66 but, if you look at all the facts and stats that came out, the writing was on the wall then simply because of the way the electoral system worked, the shape of the constituencies, and the slowness of the boundary inquiries. For that reason—it is also why I have no amendments to table to the second half of the Bill—I do not think there should be more than 500 Members of the other place. However, as I do not want to upset anybody by tabling such an amendment, this is my only opportunity to say so.

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

My Lords, following that welcome note from the unforgettable noble Lord, Lord Rooker—and I will be returning to what he said a moment ago about the fairness of equality of votes—I first apologise to the noble Lord, Lord McAvoy, who thought in some way I was irritated. Far from it—I just did not realise that he was getting up and I got up to speak at the same time, but I deferred to him because he wanted to interest us in what he had to contribute to this part of our discussions.

I am tempted to speculate, as my noble friend Lord Deben invited me, on the mindset of noble Lords opposite. However, on this occasion I will try and resist temptation because it might take us down further highways and byways. I pause to observe that it might be difficult to do so because while on the one hand some noble Lords from the Labour Benches have indicated that the coalition agreement was to the disadvantage of the Liberal Democrats, on the other hand the noble Lord, Lord Foulkes, indicated that was a threat to the Conservative Party and its view of constitutional reform.

I also want to reassure the noble Lord, Lord Foulkes, who thought that perhaps the pace of constitutional reform was too much. He was, of course, a member of a Government—and I pay huge tribute to them—who by this equivalent stage in their first term had had a referendum on their programme for devolution for Scotland and Wales, and then introduced legislation on freedom of information and some reform to this House, and passed the Human Rights Act which put forward proportional representation for the European elections. I just regret that they ran out of steam when it came to implementing their election manifesto promise on a referendum on the electoral system, or we might have been able to avoid some of these discussions.

[Lord Foulkes of Cumnock]

Will the noble and learned Lord confirm that, in relation to the referendum and the legislation establishing the Scottish Parliament, there was not just pre-legislative debate; there was a whole constitutional convention which he and I were part of, which discussed the whole set-up, including the electoral system? It was discussed almost ad nauseam to get a consensus, not rushed and pushed through in this way.

[Lord Wallace of Tankerness]

As my noble friend, Lord Strathclyde, said earlier, people have been talking about electoral reform for years and years. Indeed, it is less than 12 months since the Government which he supported brought forward their own proposals for a referendum on the alternative vote, so it has had plenty of exposure.

It is important that we address the amendment which the noble Lord, Lord Lipsey, proposed some time ago and which was supported by the noble Lord, Lord Bach. As the noble Lord, Lord Lipsey, indicated, this was part of the coalition agreement, and it is worth recalling that back in those days in May this year, it was very clear that no party had won the election. Indeed, given the instability in world markets at the time and the potential political instability which could be fed by that, my own party, the Liberal Democrats, came to an agreement with the Conservative Party to form a coalition Government to bring, I believe, much needed stability at a very crucial time.

There were several issues in that agreement with regard to constitutional reform and the coalition’s programme for government made a clear commitment to both the issues involved in this Bill—a referendum on the alternative vote and a boundary review to ensure a reduction of the House of Commons and equality of value of votes in constituencies. It was the Government’s view that both issues should be tackled and implemented together, and we have never made any secret of that particular fact.

[Lord Campbell-Savours]

The noble and learned Lord must have been privy to some of these negotiations. Why was it in those negotiations that the Liberal Democrats did not demand from the Conservatives that the question in the referendum went wider than one system? Why did they not ask for a multiquestion to be placed on the referendum ballot paper?

The book from Selsdon suggests that Gordon Brown offered it to the Liberal Democrats, so surely there was a basis on which they could have asked the same from the Conservative element in the coalition.

[Lord Wallace of Tankerness]

It was the late Lord Butler who said, and no doubt he was not the first, that politics is the art of the possible. All I can say is that, casting one’s mind back, agreeing to a referendum on the alternative vote was a huge move on the part of the Conservative Party. Indeed, together with other elements, it formed part of the basis for the coalition agreement. Speculating about other voting systems does not take us much further. This is what was agreed and this is what provided the basis of the stable Government which we formed in May of this year.

[Lord Campbell-Savours]

Does he not understand that the Conservative element in the coalition would not have backed down if the Liberal Democrats had asked for it; it would not have blocked an agreement being made; and, in fact, they were walked over during the course of the negotiations?

[Lord Wallace of Tankerness]

I am interested that the noble Lord, Lord Campbell-Savours, seems to have greater insight into what the Conservative Party would do than the Conservative Party itself seems to have.

This was the basis of an agreement which has formed a stable Government for this country, and part of this agreement features in this Bill.

[Lord Howarth of Newport]

This is the third time the noble and learned Lord has put forward the claim that the coalition exists to provide stability for this country. Why, then, this Maoist approach to the British constitution?

[Lord Wallace of Tankerness]

As I do not recognise the allegation that the noble Lord, Lord Howarth of Newport, has made, I am not really in a position to answer. The noble Lord, Lord Lipsey, has identified that these two are linked together. He went on to argue that it was not the Liberal Democrats who got the better of the deal. He made the point that if there is a no vote in the referendum, the boundary proposals still go through. If there was a no vote—as I hope not, and our parties in the collation are agreed about what the outcome of the referendum should be—as a Liberal Democrat, I do not think I could ignore the view of the people. It would be wrong. If the people vote no, I expect that my colleagues will accept it.

The noble Lord, Lord Deben, made a point about fairness and the equality of constituencies. He said that that is a Conservative principle, and I am sure he would claim that it is not unique to the Conservative Party because the noble Lord, Lord Rooker, endorsed it, and I have no difficulty in accepting that as a principle. Indeed, as my noble friend Lord McNally has said on a number of occasions, this Bill is about fair votes and fair boundaries. It shows that the two are, in fact, linked. It shows how the two will be linked because it will shape the way in which the other place will be elected in 2015.

[Lord Anderson of Swansea]

Will the noble and learned Lord also address the question of indecent haste and the fact that there has been no pre-legislative scrutiny? Is he aware, for example, that in Wales, the Welsh Assembly seats are based on 40 existing Welsh parliamentary seats and 20 proportional representation seats? Had they bothered to consult the Welsh Assembly, they would have been told of the substantial implications for the electoral system in Wales arising from the way in which the Welsh constituencies will be reduced from 40 to 30.

[Lord Wallace of Tankerness]

That is similar to the changes that occurred in Scotland after the noble Lord’s Government, which he supported, reduced the number of Scottish Members in the House of Commons from 72 to 59 when Scotland had 73 first past the post seats and 28 seats. I am not sure whether he objected when that legislation was brought before this House back in 2005 or 2006, but I hear his point. When we come to that part of the Bill, I have no doubt whatever that there will be discussions on the subject of Wales and the Isle of Wight.

The noble Lord, Lord Soley, asked whether a boundary review could be judicially reviewed. I remind the House that the question of hybridity was raised at the first stage of the proceedings on this Bill in this House and was rejected. Indeed, the position is that the Boundary Commissions can be judicially reviewed. It is our hope that they will not be and that there will be no grounds for doing so. Whether any challenge would delay a review would depend on the nature of the challenge, the time it took to be heard and whether any action had to be taken as a result. Clearly, we will have ample opportunity to debate issues that the noble Lord, Lord Soley, raised about the Isle of Wight, Ynys Môn and Cornwall—I have no doubt whatever, because I received the representations, too—when we debate the second Part of this Bill.

[Lord Soley]

I am very grateful for that answer. Can the Minister get the advice of the legal officers of the Government and write to me or put a copy in the Library, because I would like to know what the judgment is about this? It is clear that the Government have made a clear commitment to Orkney and Shetland, the Western Isles and the Welsh constituency too, I understand. If that is the case, it is hard to see why the Isle of Wight and, I say perhaps less confidently, Cornwall, would not at least have a case. I would welcome hearing the Government’s law officers' view.

[Lord Wallace of Tankerness]

I recall very clearly that when we discussed this in the debate on the Motion tabled by the noble and learned Lord, Lord Falconer, on hybridity, the very clear advice we got from the Clerk was that there was no issue of hybridity, which is the other side of the same coin to which the noble Lord, Lord Soley, was referring.

[Lord Howarth of Newport]

I appreciate the Minister’s courtesy to me and to the House as a whole. He just said that he personally believes in the principle of numerical equality between constituencies. As the former Member of Parliament for Orkney and Shetland, does he now hold that that principle ought to apply to Orkney and Shetland and that they should be subordinated to it?

[Lord Wallace of Tankerness]

For good reasons, which the Bill addresses, there are exceptions. There are only two, and I do not want to take up the time of the House, although we will, no doubt, have plenty of opportunity at a later stage to explain why in these two limited cases, which by any stretch of anyone’s imagination are different from any other part of the United Kingdom, an exception has to be made. Two out of 600 does not really depart from the principle of fairness that I illustrated.

[Lord Foulkes of Cumnock]

I would not want the Minister to mislead the House. It is not just two constituencies. The area provision also excludes the constituency presently represented by Mr Charles Kennedy. Is that not correct?

[Lord Wallace of Tankerness]

That is not correct. The relationship between the area provision and the constituency represented by my right honourable friend Charles Kennedy is that he currently represents the largest area in the United Kingdom. The area referred to in Part 2 is just slightly larger. It is not to preserve a particular constituency. Indeed, if one thinks about it logically, if you start at the top and come down, it would eat into his present constituency anyway. It is not an automatic read-across. The noble Lord has just got it wrong on that point.

[Lord Campbell-Savours]

Can the Minister clarify something very simple for me? Perhaps I misunderstood. Is he saying that one judicial review in one part of the United Kingdom could block the boundary changes that trigger the introduction of AV? Is that exactly what he is saying? Can we have that clarified?

[Lord Wallace of Tankerness]

I shall repeat what I said. I said that the Boundary Commissions could be judicially reviewed. Of course, I hope that that does not happen and that there will be no such a challenge. Whether any challenge would lead to a delay would depend on the nature of the challenge and the time it took for it to be heard. I remind the House of the provisions in the next Part of the Bill at Clause 10(3):

“A Boundary Commission shall submit reports under subsection (1) above periodically … before 1st October 2013”.

We hope that that will find favour with the House and will be in the statute to which the Boundary Commissions will have to adhere.

[Lord Campbell-Savours]

The Minister said that the boundary commissions could be reviewed. Can I isolate within that Boundary Commission review whether a judicial review within one particular part of the country will in itself lead to this blockage of the introduction of AV that is being referred to?

[Lord Wallace of Tankerness]

I think I also said in my response earlier that the length of any possible delay would depend upon whether action needed to be taken as a consequence of that ruling and whether there was a knock-on. I also indicated that as the Bill stands the Boundary Commission review would have to report by 1 October 2013, and that is what we wish to put into statute.

[Lord Alton of Liverpool]

Just before we leave the point about those special exemptions to which the noble Lord, Lord Soley, and others have referred, in order to avoid the need for judicial reviews later on or for discussion when we get to later parts of this Bill, could the Minister isolate for us those constituencies that are in dispute? Mr Andrew Turner from the Isle of Wight has written to each of us, as has the leader of Cornwall Council, and the noble Lord, Lord Anderson, mentioned Ynys Môn. If just those three examples are as narrow as that, would it not be sensible between now and Report, in the spirit mentioned by the noble Lords, Lord Bach and Lord Rooker, earlier, for the officials of the noble and learned Lord’s department to meet representatives from those areas to see whether further exemptions could be made?

[Lord Wallace of Tankerness]

The noble Lord is right to identify the ones he has. The others were, I think, incorporated into an amendment that was moved in the other place and that related to some of the highlands seats and Argyll and Bute. I hear what he says. I can assure him that I have already met elected Members from Cornwall as well as elected Members from the highlands and islands of Scotland on these issues. We are certainly alive to the issues that he has raised, and I have no doubt that we will have plenty of opportunity to debate them in due course when we return in the new year.

[Lord Foulkes of Cumnock]

The Minister said that I am just plain wrong. Can he therefore explain the purpose of new paragraph 4(2) in substitute Schedule 2 to the 1986 Act:

“A constituency does not have to comply with rule 2(1)(a) if … it has an area of more than 12,000 square kilometres”.

Paragraph 2(1)(a) provides, of course, that it need be,

“no less than 95% of the United Kingdom electoral quota”.

My understanding of that is that in the highlands at least one constituency, if not the existing constituency of his right honourable friend, would be exempt from that rule, and on previous voting patterns it is likely that it would be a Liberal Democrat constituency.

[Lord Wallace of Tankerness]

I think the noble Lord specifically said that it would be the constituency of my right honourable friend, but in fact that is wrong. Obviously parts of the Highlands and Islands, and perhaps even parts of mid-Wales, raise the potential for large areas to be covered. It would be wrong for us to second guess how the Boundary Commission will apply that. I can certainly assure him that although as a party we have had a consistency good record in the Highlands and Islands, we never take that for granted, and I would certainly not presume from this Dispatch Box that any resulting seat would be a Liberal Democrat seat. However, we would work hard to win it.

[Lord Foulkes of Cumnock]

The point I was making was that the noble Lord said that he agreed with his noble friend Lord Deben that the prime consideration should be the number of electors: that that was supreme. The Bill exempts Orkney and Shetland and the Western Isles. Now there is another exemption, is there not?

[Lord Wallace of Tankerness]

Yes, but as I indicated earlier, I do not think that that detracts from the fundamental principle because it reflects common sense on the areas. I am sure that the noble Lord would be the first to complain if we had not done something similar. Let us hear from a fresh voice.

[Lord McFall of Alcluith]

The noble Lord said that there were good reasons for these exemptions. Given that the Bill says that a constituency does not have to comply if it covers an area of more than 12,000 square kilometres, can the noble Lord, in advance of the debate at a future time, place a letter in the Library of the House of Lords detailing the criteria on which these decisions were made so that we can be better informed when it comes to that debate?

--- Later in debate ---

[Lord Wallace of Tankerness]

I am sure that they are very similar to the criteria which the previous Labour Government adopted when they gave Orkney and Shetland separate seats in the Scottish Parliament, and did so for similar reasons. His having been a member of that Government, I am sure that the noble Lord will be well aware of those criteria. However, I have no doubt that we will come back to this.

I shall conclude where we came in by indicating that Amendments 45 and 46A would separate the two issues. The first amendment moved by the noble Lord would do this by removing the stipulation that the alternative vote provisions are brought in only after the draft Order in Council is laid, and the second amendment would do this by removing the provision that requires the alternative vote provisions to be brought into force on the same day. It does not actually break the linkage as it would leave the requirement that the order bringing the boundaries provisions into force must have been laid first, although that would not necessarily be on the same day. It may be the intention of the noble Lord, Lord Bach, to put the amendments together.

[Lord Bach]

Why is there a linkage at all between these two sides if it is not part of a political deal?

[Lord Wallace of Tankerness]

I have indicated that the coalition programme for government makes a clear commitment to both issues, and it is the Government’s view that the issues are linked, particularly in terms of how the House of Commons will be shaped when it is reconstituted after the election in 2015. As my noble friend Lord McNally has said on many occasions, the linkage is fair votes and fair boundaries. The Government are committed to both provisions if a yes vote is carried in the referendum. The Government therefore wish to see both provisions, if the yes vote is carried, to come into effect in time for the next general election. On that basis, I invite the noble Lord to withdraw his amendment.

[Lord Soley]

The Minister has been quite helpful on some of these points. I agree that the Boundary Commission can be judicially reviewed and I accept that the House decided that this is not a hybrid Bill. What I am interested in is that when I asked him about the Isle of Wight, on which I will focus in relation to the amendment that we are discussing, a challenge under this current amendment would prevent the system going forward in the way the Bill envisages; so the question whether there can be a legal challenge is crucial.

Let us put Cornwall to one side for a moment because I am not familiar enough with its case. I know the area of the Western Isles rather well, but I do not know Orkney and Shetland. However, I do know that those two areas have similar problems to the problem faced by the constituency of the Member for the Isle of Wight, who has argued the case very strongly in the House of Commons. If there is a similar problem, there are the conditions for a possible legal challenge. Indeed, I think the Minister used the phrase “it is common sense” when he said that the two Scottish seats are very different. I am a great believer in common sense, but I have to say that it can get you into deep trouble when you go into a court of law.

This goes back to a point made by my noble friend Lord Rooker that there is a case for the Government to be more willing to compromise on this Bill and at least to offer to investigate. I would very much like to know, and I am sure that councillors on the Isle of Wight would love to know, the government law officers’ view on whether a legal challenge could be mounted because there was no Boundary Commission review of the Isle of Wight. It seems at least possible, so it would be good if we could have the lawyers’ views on this.

[Lord Wallace of Tankerness]

My Lords, I hesitate to say because, although I am only seven or eight months into office, one of the cardinal rules for a law officer is not to expose what your advice to the Government is. Indeed, you do not even disclose whether advice has been given. However, I will reflect on what the noble Lord, Lord Soley, has said and not necessarily answer his question about advice but perhaps revisit the advice that was given to the House by the Clerks when the particular issue of hybridity was looked at.

[Lord Bach]

On another subject, which I asked the noble Lord about in my contribution, does he agree that even if, by way of exaggeration as an example, 99 per cent of the population were to vote in favour of changing the Westminster voting system to this type of AV, that change would not come about if the boundary changes were not made? How can he seek to justify that?

[Lord Wallace of Tankerness]

I will not justify that particular point, but I will draw the noble Lord’s attention to the fact that the Boundary Commission report is due, as I have already said on two or three occasions during these exchanges, on 1 October 2013. There will be time to debate the fixed-term Parliament Bill, but the assumption is that the next general election will be held on the first Thursday in May 2015. Therefore there will be ample time for both orders to be laid and implemented together, assuming of course that there is a yes vote. If it is a no vote, no time is attached to bringing forward an order to repeal the relevant sections of the Bill, or the Act as it will be by then.

I reiterate that if the Boundary Commission report is brought forward by 1 October 2013, there will be ample time. Obviously this is also important for electoral administrators and the political parties, and it would ensure that the next general election would be fought both within the boundaries that would then be implemented by order and under the alternative vote system.

[Lord Bach]

If the constituency changes do not go ahead for any reason, AV cannot take place. However, if 99 per cent of the people have voted for AV, is that not unfair?

[Lord Wallace of Tankerness]

Ninety-nine per cent of the people voting for AV, much as I would like to see that, is hypothetical. It is also purely hypothetical that the boundary changes will not go ahead either.