Fixed-term Parliaments Bill

Lord Wallace of Tankerness Excerpts

Tuesday 15th March 2011 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Howarth, and my noble friend Lord Rennard for introducing these amendments. I say in respect not just of the amendment of the noble Lord, Lord Howarth, but of a series of amendments as we go through the Bill that it is important that there will proper scrutiny. The amendments that have been tabled already indicate that although the Bill is relatively short it is important, and that most if not all its key components will be addressed. We look forward to those debates.

I think that there is a consensus across the Chamber, as I think there was on a number of occasions—although it was sometimes difficult to believe it—during the passage of the Parliamentary Voting System and Constituencies Bill, that it is important that we try to look at ways in which we can increase turnout and participation in elections. No matter which party we belong to, or even if we belong to none at all, I think that we recognise the importance of trying to increase turnout.

It is probably fair to say—no doubt those opposite will correct me if I am wrong, because they were in government and responsible for introducing them—that the greater availability of postal votes is more a response to decreasing turnouts than a contributory factor as my noble friend Lord Cormack suggested. It is also fair to raise concerns, as has been done, about the security of postal voting, but it should be recorded that measures have been introduced during the past couple of years to ensure that postal votes are properly verified. Some of the debate which has taken place in recent days and weeks about the timing of the counts for the Scottish Parliamentary and Welsh Assembly elections in May has been coloured by the fact that returning officers are now very conscious of the time that will quite properly be taken in verifying postal votes.

My noble friend Lord Rennard indicated that this issue has never been properly debated in Parliament; I hope that he feels that it has had a reasonable airing today. It is clear from the contributions that have been made that there are arguments both for and against moving the polling day from the traditional Thursday to another day and, as the amendments would foreshadow, to weekends. There has been debate, too, on the cases for and against the holding of elections on more than one day. The noble Lord, Lord Pannick, said that if one was to have polling day on a Saturday it would raise religious issues for some faiths. Equally, I can think of places, not least in my native Scotland, where if voting was only on a Sunday there would be difficulties. That led noble Lords to consider the possibility of voting over two days. The noble Lord, Lord Pannick, indicated some of the practical issues to which that would give rise. I do not think for a moment that they are insuperable, but they would certainly have to be addressed if we were to hold elections on more than one day.

A number of issues have been raised. The previous Government instigated a significant test of opinion, by way of a consultation held in 2008, on the very subject of moving elections to weekends. The consultation sought views from a range of groups on whether elections should be moved from the traditional Thursday to one or both days of the weekend and whether this would improve access and opportunity for voting. There were diverging views on this issue. While it is fair to say that there was a balance of opinion in favour among members of public who responded to the consultation, the majority of respondents did not favour a move to weekend voting.

It is not obvious from that survey, which was published in March of last year, that such a move would make it easier for electors to vote. As the noble Lord, Lord Howarth, pointed out, there is nothing in statute that says that polling day should be a Thursday. I am sufficiently old, and enough of a political anorak, to remember a lot of local elections taking place on every day of the week. I think that I am correct in recalling during one of our debates on the Parliamentary Voting System and Constituencies Bill someone on the opposition Benches saying that they were once a candidate, or an agent, in a local election that had taken place on Saturday.

[Baroness Armstrong of Hill Top]

In the Local Government Bill in 1998, we made provision for significant pilots to take place on this and on different ways of increasing participation. It may be useful to the Minister and others interested in this amendment to look at some of those. The first organisation to do this in depth was Watford Council, which led to the Liberals taking over—so I was not too popular.

[Lord Wallace of Tankerness]

The noble Baroness is encouraging me to look at these pilots. However, I seem to recall that voting took place on a number of days. In Scotland, local elections were for many years on a Tuesday. For some reason, they all seem to have coalesced round a Thursday. Picking up the point of the noble Lady, Lady Saltoun of Abernethy, I recall that in 1978 the Hamilton parliamentary by-election took place on Wednesday because Scotland’s first match in the 1978 World Cup finals was being played on the Thursday. I am not sure what it did for the noble Lord, Lord Robertson of Port Ellen, but it did not do much for the Scottish football team.

There is a consensus on the need to find ways in which we can increase the turnout, which undoubtedly ensures that those elected to the other place have a stronger democratic mandate.

The noble Lord, Lord Howarth, referred to the briefing of the Electoral Commission, which echoed what the Electoral Commission said in the consultation undertaken by the previous Government. The Electoral Commission stated that it was,

“not opposed to weekend voting in principle, but that no change should be considered without clear evidence that it would be of significant benefit to the voter”.

That view was shared by the Committee on Standards in Public Life, which in its response to that consultation said,

“The Committee is not opposed in principle to moving the day of elections from Thursday to the weekend. But we have seen no evidence that such a move would bring any clear benefits … It is not obvious that [people] would find it easier to vote at the weekend”.

One might say in the Scottish context that this is a not proven verdict, but that does not mean to say that there should not be trials. With regard to advance voting, which the noble Lord, Lord Howarth, mentioned, that was referred to in the consultation paper on The Governance of Britain published by the previous Government. It pointed out in that consultation that, as part of the previous Government’s programme for piloting innovative voting methods, 20 local authorities had piloted advanced voting in polling stations since the year 2000. Evidence from these pilots, however, indicated that the availability of advanced voting had done little to increase turnout.

There are a number of issues and I recognise that this is inevitably an issue to which your Lordships’ House will wish to return. I hope this is not honeyed in any way and I am not standing at the Dispatch Box to say that the Government are about to launch an initiative with regard to weekend voting. However, picking up the point made by my noble friend Lord Newton, I want to make clear that we are not ruling it out. I want to reassure the House that not including something in this Bill will not rule out the possibility of us returning to this issue.

I do not believe—this is an important point—that this is the appropriate legislative vehicle to make the change. In this Bill, we have tried to do only that which is strictly necessary to establish fixed-term Parliaments and, as far as possible, reflect existing practice. It has become common practice to hold the elections on the first Thursday in May. Three of the last four were held on that day, the exception being in 2001 when the need to move it was widely agreed due to the outbreak of foot and mouth.

The noble Baroness, Lady Golding, also indicated that one of the issues that had to be looked at is that, if we are moving the date of parliamentary elections to the other place, should we also look at the local elections and, for that matter, the elections to the devolved Parliaments and Assemblies.

It is not a criticism of the drafting because I think the point of these amendments was to raise an important issue, but there are a number of consequential issues which would flow in terms of any change that was to be made. In the light of that, I want to reassure my noble friend that if this Bill goes through without amendments, that will not be used at a future date as evidence of Parliament agreeing that it will be that day. That was the assurance he was looking for. It will not be thrown back at him like that. I hope that in those circumstances, the noble Lord will agree to withdraw his amendment.

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[Lord Hunt of Kings Heath]

It is because it is part of a series of measures of constitutional change. The noble Lord, Lord Tyler, will also know that the intention was always to produce that White Paper, which we did, then to ensure that it was in the manifestos of the three parties at the last election, which it was, then to bring forward proposals. For myself, I believe that a referendum ought to be considered in the context of the current Government’s decision to go for a referendum on AV and their other constitutional changes; and because it is abundantly clear, from all that I have read and heard, that they are not prepared to deal with the issue of powers when it comes to Lords reform.

My noble friend Lord Grocott and I do not always see eye to eye on Lords reform, but I certainly agree with him when he challenges the naive assumption that an elected senate will simply carry on in much the same way as your Lordships’ House does, without any impact on the House of Commons. I do not accept that; an elected second Chamber is bound to impact on the Commons and on our constitution in a major way. In many respects, it will be a new House even though there may well be a transition period between where we are and where we get to in the end. The same applies to the Bill. As a result of the Bill there will be less accountable Parliaments, because they will last longer, and a legislature with a more limited ability to evict a Government who have lost the confidence of the Commons. I say to the noble Lord, Lord Marks, that that is pretty fundamental to me. At the very least the Minister, whom we all value for his contributions on constitutional issues, ought to have a shot at showing where the consistency is between those constitutional changes which are to be subject to a referendum and those which are not.

[Lord Wallace of Tankerness]

My Lords, we have once again had a spirited and interesting debate with a number of important points made. It is also obvious that some of the issues raised went beyond the question of a referendum and into some of the detail of the different constitutional reforms that have either been debated and passed or are about to come down the track.

Perhaps I might start by taking issue with the noble Lord, Lord Grocott, on a couple of the points which he made at the outset. He said that he hoped that never again would he hear that the Prime Minister was surrendering power or determining the date of the election. While it is the case that the Prime Minister and the Government are, in this Bill, putting forward a date for an election as being the first Thursday in May 2015, and while I hope that the Bill will be passed with that in it, that in itself means that the Prime Minister has surrendered a power because it is not possible—

[Lord Pannick]

He has chosen it.

[Lord Wallace of Tankerness]

He has actually put it to Parliament for it to support. Parliament will have had to vote that through, as is quite clear because we have other amendments coming down to change that date. Unless circumstances arise that would trigger the mechanisms in Clause 2, the Prime Minister of the day will not have the opportunity to seek Dissolution when it might seem opportune other than to have the election on the date set down in the Bill. He will have surrendered that power.

[The Earl of Onslow]

The Prime Minister has said, perfectly reasonably, that he thinks his Government will go on until 15 May 2015. He has made a perfectly legitimate choice to the House of Commons, but binding his successors is a different matter altogether.

[Baroness Farrington of Ribbleton]

The Minister is very careful in his choice of words. Can he assist me? What should I say in the referendum campaign to people who ask me whether there will be the same AV system for voting for Members of the House of Lords? If it is not to be the same, what should I say to people who ask me why we should not have the same system for the House of Lords? The fundamental flaw in the Government’s policy is not the options that they choose on an individual issue, but that when they all come together they begin to look like a committee trying to design something but not knowing how many legs it has or whether it has two heads.

[Lord Wallace of Tankerness]

Far be it from me to suggest how the noble Baroness should answer questions about the merits of the AV system. I am not sure which side she is on but I should like to think that we are on the same side. I cannot answer her question because I am not a member of the committee looking at Lords reform and have not seen its proposals. I genuinely do not know the answer to the question.

I do not think that it would be appropriate to go into the merits of Lords reform in the context of this Bill, but I pick up the point made by my noble friend Lord Tyler that in all the discussions with the previous Government on the committee chaired by Mr Jack Straw, it was never anticipated that there would be a referendum. As was confirmed by the noble Lord, Lord Hunt of Kings Heath, the purpose identified was that a White Paper would propose either a wholly or a substantially elected second Chamber, which would go into the manifestos of the three main parties. Indeed, that proposal was put before the electorate in the manifestos of the three main parties. I did not find it a very convincing argument that there should now be a referendum on Lords reform or anything else just because this Government have brought forward other constitutional measures.

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[Lord Wallace of Tankerness]

Tempting though the honeyed words of the noble Lord are—that seems to be the phrase of the night—he knows full well that it would be wrong of me to anticipate a hypothetical situation regarding that committee other than to confirm that it is proposed that there will be a Joint Committee to carry out pre-legislative scrutiny. It would be wrong for me to speculate on what that committee will propose, because that is some way down the track, or what the Government’s response would be.

My noble friend Lord Marks indicated that the previous Government brought forward legislation that fundamentally changed the relationship between the judiciary, the Executive and Parliament, and did so without a referendum. That might be thought to be a far more fundamental and far-reaching constitutional reform than the one we are considering. With the exception of the proposed referendum on the alternative vote, the Constitutional Reform and Governance Act, introduced in this House before the wash-up, had a plethora of constitutional measures, none of which, other than the AV referendum, sought to have a referendum attached to it. While I take on board the strictures of the noble Lord, Lord Pannick, on the Constitution Committee’s consideration and view on this Bill, the committee did not, as he confirmed, recommend that there should be a referendum. If one reads the Constitution Committee report from the previous Session, when I was a member, one detects a great reluctance to go down the route of referendums—or referenda, in deference to my noble friend Lord Cormack.

The items on the list read out by my noble friend Lord Marks, including the abolition of the monarchy and the secession of one of the nations from the United Kingdom, are of a different order from what is proposed in the Bill. This country is, after all, governed by a system of representative democracy in the other place. We in Parliament are basically entrusted with the power to make important decisions on behalf of the people of this country and, in the other place, by the people who are elected to make these decisions as representatives of the people. There must be an exceptional reason to ask people a direct question in a referendum, and I do not believe that the case has been made this evening for that exceptional high threshold to have been reached in respect of the Bill. I therefore urge the noble Lord to withdraw the amendment.

[Lord Grocott]

My Lords, I really am grateful for the contributions that have been made to this debate, not least because, as I said at the beginning, I felt that I needed to apologise to the Committee for mentioning the word “referendum”. It seems that there is still a fair degree of enthusiasm for talking about it now.

I will not use the term “honeyed words”, but the noble and learned Lord, Lord Wallace, always puts together a strong argument. I must say, however, he was on pretty weak ground when he tried to suggest that it was not the Prime Minister who decided that the next general election will be on 7 May 2015. No less an authority than his own dear leader said:

“We have a Prime Minister who is the first in history to relinquish the right to set the date of the general election”.—[Official Report, Commons, 13/9/10; col. 622.]

Who did set the date of 7 May 2015? If it was not the Prime Minister, who was it? That decision was quite clearly made by this Prime Minister, and the only rights he is relinquishing are those of future Prime Ministers. I suggest taking the Denis Healey advice on that one—when in a hole, stop digging. The Prime Minister made his decision, with the Deputy Prime Minister, for the understandable political reason that they are in a fragile political situation following the general election and they had best try to bank five years in the job rather than risk their term being foreshortened. I really cannot put it any more strongly than that.

The noble and learned Lord suggested—and this may or may not be true; this is, by definition, something that cannot be demonstrated conclusively—that there might have been a few more general elections than I said since the Second World War if the provisions of this Bill had been in operation. He suggested that there might have been scenarios in which a general election would have been triggered according to the provisions that deal with that. I find that argument pretty unconvincing. I am trying to imagine a scenario in the House of Commons when two-thirds of the Members—that means the whole of the governing party and a substantial number of opposition party members—were cheerfully voting together to charge to the polls. It is very difficult to imagine.

The only time when an election would have been triggered under the provisions of this Bill was in 1979, when the Government lost a vote of confidence. I will not repeat too much of what was said on Second Reading, but that seems to have been the perfect operation of our constitutional arrangements. It was beyond improvement. Why on earth we need to start defining that kind of thing in legislation is beyond me. It was a magnificent occasion although, from my perspective, it was also a magnificent defeat. It was the constitution working as it should have done, and we only diminish the constitution by these provisions. But we will come to that later.

I am encouraged by a number of the contributions to this debate that were, on balance, more in favour of acknowledging that this is a fundamental change. Having fewer general elections weakens the electorate—surely we can agree on that. The noble Lord, Lord Brooke, as ever, put forward an interesting tangential view. I agree with him that perhaps the electorate would not give the answer to the question, “How many elections do you want?”, that we might assume they would. They might decide, “We can’t be bothered with another blooming election for quite a few years now”. That is quite possible. However, I certainly think that they should have, as my noble friend said, the right to decide whether, instead of having an election every three years and 10 months on average, there should be one every five years. That, surely, is a fundamental constitutional change. I do not want to misrepresent what the noble Lord, Lord Pannick, said, but I think that he as good as said that, as did a number of other speakers.

I realise that there is a weakness in my amendment, which is what my noble friend Lady Hayter said I might say. It was a pity that she did not go to New Zealand earlier because I would have loved to have heard her views of what the people there felt about changing their electoral system from first past the post and whether it had brought undiminished joy and happiness in the way that people who argue for proportional representation suggest.

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[Lord Hunt of Kings Heath]

I shall make a short intervention. This has raised an important point. There is no doubt, as was said at Second Reading, that this Bill leads to the real possibility of difficulty every 20 years in the close timing of the Scottish Parliament and Welsh Assembly elections on the one hand and the Westminster Parliament elections on the other. All three elections are specified to occur in May under normal circumstances. I understand that the Government are involved in consultations with the devolved institutions on that issue. It would be useful if the noble and learned Lord could report to the Committee on the progress of those negotiations, particularly if there is any potential for amendments to be tabled at later stages.

The noble Lord, Lord Cormack, and my noble friend Lord Howarth have each put forward a different approach. They may have noticed our Amendment 52, which suggests a third approach. It states that a,

“general election shall not be held within 30 days of a general election to the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly”.

Today’s debate will be helpful in allowing us to discuss this matter more fully later.

I agree with my noble friend Lord Howarth and the noble Lord, Lord Cormack, that there should be stand-alone elections in the devolved Administrations. As my noble friend pointed out, we know the problem of holding different elections on the same day with different voting systems. I should have thought that it would be foolish to repeat the problem that we have seen in the past. I hope that the Minister will be sympathetic and at the very least update us on the discussions with the devolved Administrations.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Cormack and the noble Lord, Lord Howarth, for tabling the amendments and giving me an opportunity to update the Committee further to what I said on the Second Reading. My noble friend Lord Cormack asked the Government to think carefully about this and I confirm that we have done so. As was indicated from the evidence given by my honourable friend Mr Mark Harper to the Constitution Select Committee, this is an issue that we have considered and on which we have been in consultation.

I have much sympathy for the points that have been made and the underlying purpose of the amendments in trying to separate out the dates of the 2015 United Kingdom general election and the general elections to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. As has been indicated, it is not solely as a result of the Bill that a conglomeration—if that is the right word—of elections could happen. Indeed, it would happen only once every 20 years but it so happens that the first time would be in 2015. The Bill has given advance warning. Clearly under the present system, towards the end of the five years for which this Parliament was elected, a decision could have been taken to have an election on 7 May 2015 and there would not have been the opportunity to have the same kind of consideration and consultation that we have had.

One reason why the Government would not favour the proposal in the amendment tabled by the noble Lord, Lord Howarth, is that all three devolved assemblies will not always hold their elections on the same day. I think that it has always happened to date that the Welsh Assembly and the Scottish Parliament have held their elections on the same day, but the Northern Ireland Assembly has not always done so. I can check but I understand that this coming May is perhaps the first time that all three have coincided on the one day. I also take the point made by the noble Lord, Lord Empey, that two months may not be a sufficient gap between the elections, if indeed the purpose of separation is to ensure that one is not overshadowed by the other. Apart from the stresses and strains that two months might put on those who would be in permanent campaign mode, it might be difficult even then to disentangle the relevant issues as to which was devolved and which was reserved to the Westminster Parliament.

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[Lord Hunt of Kings Heath]

I am sorry that the noble Lord, Lord Marks, is not in his place because I presume that on that basis he would argue that, since the proposal might be to extend the devolved Administrations from four years to five years, it should be determined by referendum.

[Lord Wallace of Tankerness]

My Lords, I do not think that a referendum would be appropriate in those circumstances, not least because people go to the polls on 5 May, which is about six weeks away, and we could not hold a referendum in that time. It is important that people know the term of office of those they elect on 5 May. That is why we wish to bring forward that amendment in Committee. We await the outcome from the Welsh Assembly.

Northern Ireland Office Ministers are conducting separate discussions with the parties in Northern Ireland on this issue and have concluded that it would be better to await the outcome of the combined polls scheduled for May 2011 before taking a decision on whether special provision will be needed for Northern Ireland.

For the reasons I have outlined, and in the light of the fact that we have been working not only with the parties but with presiding officers in Scotland, Wales and Northern Ireland, I hope that the concerns that legitimately motivated these amendments have been addressed, and I invite the noble Lord to withdraw his amendment.

[Lord Cormack]

My Lords, never has a probing amendment produced more in the way of disturbing information from my noble and learned friend. Anyone who knows him likes him. He is an extremely agreeable man who was rightly very popular in the other place and is clearly popular in your Lordships' House, but if ever there was an illustration of the maxim of my late father that you should think before you do anything, it is the response that we have just heard. We are now going to have discussions in Scotland to see what the implications will be.

[Lord Wallace of Tankerness]

There are no discussions about what the date will be for what will no longer be the 2015 election. We have said that in the longer term there ought to be discussions to avoid a recurrence of the clash. We are not at the moment prepared to put the Scottish Parliament on to a permanent fixed five-year term. It is about the longer term that there will be discussions, but I make it clear that they will not be with regard to the date for the election that would otherwise have been on 7 May 2015. I hope that my noble friend will agree that that is something that should not be rushed into and that it is proper that there is consultation.

[Lord Cormack]

Yes, of course, but I respectfully say that there should have been consultation before we got into this mess. As I listened, I could not help but remember a quotation from WH Auden, writing just before the last war, who said that every great drama has two acts. In the first, the mistake is made, and in the second people discover that they have made a mistake. I could not help but think that there is a lot of that here. If only there had been consultation with the devolved institutions first. Then there could have been a proper working out of the most sensible date on which to have these various elections. However, the probing amendment has worked to some degree, and in the spirit of conciliatory unity which is so prevalent in the House today—I am delighted by that—I beg leave to withdraw the amendment.