Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Wallace of Tankerness Excerpts

Monday 16th January 2012 Lords Chamber

If ever there was a case in which the pressure of the potential litigation should serve the public good, it might be thought to be in these cases. As we have already heard, a reasonably high percentage of the population suffer to some degree from negligence and it would be wrong in that context to dismantle the machinery which affords them access to justice. I would hope—and others have also expressed this hope—that the noble and learned Lord, in replying to the debate, would acknowledge that this is a matter in which the Government need to listen to your Lordships’ House, to make more than a gesture or partial concession to a limited group of potential claimants, and to recognise that there ought to be a complete restoration, or retention, of legal aid for clinical negligence. It is not particularly costly and would be broadly welcomed across both the legal and medical professions and, more importantly, by the general public.

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

My Lords, I join the noble Lord, Lord Beecham, in congratulating those who have taken part in what has been a very serious debate. The Committee has benefited from experience: the experience of those who have practised law in this sphere; the personal experience of my noble friend Lady Eaton and the noble Lord, Lord Howarth of Newport; and the experience of those who had formerly been Members in another place—my noble friend Lord Carlile of Berriew and the noble Lord, Lord Wigley, have had to deal with issues such as this in the course of their constituency work.

A number of your Lordships asked that Ministers would listen. In a debate of this profundity it is only appropriate that we should reflect on the many contributions that have been made, contributions which carry forward a number of the concerns that were expressed at Second Reading. As well as compensation, clinical negligence also raises the point which was reflected on by the noble Lord, Lord Clinton-Davis: the importance of standards for those who provide medical treatment. Related to that, the Department of Health is currently consulting on our duty of candour proposals, with the intention of implementing these through contractual changes. These proposals will make sure that providers of NHS care are more open with patients about harmful adverse effects. We would expect the duty of candour to apply to NHS patients treated, typically, in hospitals, where at least moderate harm results. The proposals specify that,

“There must be appropriate investigation undertaken to establish the facts of an incident”,

and that,

“New information that emerges during an investigation … must be shared with patients and their carers/families within 5 working days of its inclusion in any incident report”.

We would expect that claimants’ solicitors could use a duty of candour when investigating potential claims. This might act as a lever to identify when NHS providers are non-compliant. Providers could also use these requests as an indicator for a potential claim being made, prompting early action to resolve the matter before claims are made. Overall, we believe this should facilitate access to justice and help speed up settlements. There is a general acceptance that the way in which the NHS handles claims has improved significantly over recent years, but, as I have indicated, it is important that we continue to ensure that we have the highest standards and the best practice in dealing with incidents such as these when they occur.

The amendments which have been spoken to have as their common theme the extension, in one way or another, of legal aid in cases involving clinical negligence. We recognise that many of these cases raise serious issues, especially where damages are required to meet future care needs. My noble friend Lord Carlile talked about particular parents who are overwhelmed not only by their current care responsibilities but also by the knowledge that they face—well into the future in many cases—continuing care responsibilities to their children. These are serious issues, which can lead to very substantial claims for compensation. We also recognise that some litigants will be vulnerable because of disabilities resulting from negligent treatment. My noble friend Lord Faulks acknowledged that the Government have recognised the seriousness of these particular issues, because clinical negligence claims are not being treated like personal injury claims, or indeed like other torts.

My noble friend Lord Faulks also indicated that the Government had sought to engage constructively to address these issues, although he expressed very serious concerns and reservations about the different proposals that have been brought forward to try to address them. I will try to deal with these in the course of my reply. He indicated, for example, some scepticism as to whether the conditional fee agreement could replace legal aid. Figures from the NHS Litigation Authority show that in 2010-11 approximately 82 per cent of clinical negligence cases where the funding method was known were funded by means other than legal aid, such as conditional fee agreements, “before the event” insurance, legal expenses insurance and private funding. We considered the fact that there are viable alternatives to legal aid in this area when coming to the view that legal aid would not be justified in these cases and that—as has been a frequent refrain in these debates—limited funding should be targeted in other areas.

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[Lord Phillips of Sudbury]

Does my noble friend not understand that a poor litigant simply cannot afford any ATE premium in order to get to the point of knowing whether there is a claim to be made?

[Lord Wallace of Tankerness]

My Lords, the point that we are making is that while the ATE insurance premium is being abolished generally, in the event of a CFA being agreed in a case of clinical negligence, the Government are retaining the recoverability of ATE insurance premiums. These are very rarely paid up-front. I understand that it is almost an insurance of insurance. If the claimant loses, the premium will not be recoverable from the claimant. It is often the case, too, that if it has been recovered from the other side, there is an increase at that time to take account of those cases in which the insurers will not get their premium.

[Lord Phillips of Sudbury]

I need to answer that; I do not think that is right. The position of a poor claimant is that they cannot afford to put themselves in hock for the premium. It is all very well saying that they can pay it later, but if they lose they have to pay it.

[Lord Wallace of Tankerness]

My Lords, I think the position is that if they lose they do not pay it. That is what we are retaining in cases of clinical negligence. In short, poor people will not have to pay up-front for the necessary expert reports in clinical negligence cases.

[Lord Thomas of Gresford]

The problem is that you cannot get a conditional fee agreement unless you have a case, and you cannot get insurance unless you can show that there is a case. In clinical negligence, you do not have a case unless you have the medical reports. That is the problem. The Government’s solution, as put forward in Clause 45, does not solve the problem at all.

[Lord Wallace of Tankerness]

My Lords, we certainly believe that going down this road will mean that poor people do not have to pay up-front for their necessary expert reports. Indeed, that is why we draw a distinction between our reforms as they affect clinical negligence and the reforms that affect claims for damages in other areas.

We are working closely with the NHSLA and other stakeholders to discuss how the commissioning of these reports can be improved so that joint expert reports can be commissioned wherever possible. That would involve the NHSLA commissioning and sharing expert reports on liability with claimants at an early stage. There is a lot of agreement that that is what we should be doing—trying to get it at such an early stage. That, in turn, will help to encourage the early notification of claims.

My noble friend Lord Faulks and the noble Lord, Lord Wigley, expressed some concern about whether there would be a market for ATE insurance if it was not recoverable in other areas. We certainly recognise that these concerns about the funding of medical expert reports have been expressed, but the reality is that claimants usually take out ATE insurance. We expect the ATE market to adapt to the new arrangements. As my noble friend Lord Faulks accepted—although he queried whether it should have been done earlier, rather than during the passage of legislation—a working party has been set up to consider the recoverability of ATE and to ensure that premiums for expert reports reflect the risks involved. ATE insurance brokers have been asked to contribute to this working group. It is a concern to which we are alert and one that we seek to address.

Furthermore, we wish to reassure the Committee that we will be introducing qualified one-way cost shifting, which will be available in personal injury claims and, therefore, will by definition apply in clinical negligence claims. Qualified one-way costs shifting will mean that, in the majority of cases where damages for clinical negligence are sought, the claimant is not at risk of having to pay a winning defendant’s costs. We have therefore protected the claimant’s interests to ensure that they are not denied access to justice for fear of having to pay the defendant’s costs if they were to lose.

One of the main areas of concern in respect of expert reports is those cases concerning babies who suffer obstetric brain injury. This has been reflected in a number of contributions. While we consider that in most clinical negligence cases funding will be available through a combination of conditional fee agreements and ATE insurance, we have always recognised that there may be obstetric injury cases with high disbursement costs, which are currently funded by legal aid but for which it may be difficult to secure conditional fee agreements.

My noble friend Lord Faulks expressed concern as to whether the provisions in Clause 9 with regard to these exceptional payments, which we will debate later, would be fit for purpose and meet the task which we wish them to achieve. It is because of this that we have sought to make funding available. The safety net would be in the form of an exceptional funding scheme, which will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as those rights to legal aid that are directly enforceable under European Union law. In considering whether exceptional funding should be granted in cases engaging Article 6 of the European Convention on Human Rights, the director will take into account general jurisprudence set out by the European Court of Human Rights on Article 6. The jurisprudence takes into account the following relevant factors: the ability of the client to present his or her own case; the complexity of the matter; the importance of the issues at stake; and all other relevant circumstances. It is important to put this into context. Our impact assessment estimates that we will continue to spend £6 million of the £16 million we currently spend on clinical negligence cases on exceptional funding cases. We estimate that the vast majority of this £6 million—

[Lord Faulks]

I am very grateful to the Minister for giving way. Can he help the House as to whether it is the Government’s position that a cohort of cases such as brain damage cases, which are exceptional to the family but do not raise exceptional points of law, would nevertheless be regarded, if there was no legal representation, as a violation of Article 6?

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[Lord Wallace of Tankerness]

My Lords, it would not be appropriate to second guess, as it were, what the director of legal aid casework might decide on any individual case. Suffice to say that the purpose of having Clause 9 in the Bill is to take account of cases where the client would find considerable difficulty in presenting their own case and where there is, indeed, a complexity—these are not necessarily cumulative—in the important issues at stake. The fact that we estimate that some £6 million would be spent in dealing with these complex and lengthy cases is indicative of the fact that we do take—

[Lord Carlile of Berriew]

I apologise for interrupting my noble and learned friend again but does he regard it as satisfactory that cases falling within what my noble friend Lord Faulks described as a cohort should be determined not on a merits-based approach but on an administrative law approach? If an aggrieved party wished to challenge a decision of the director of civil legal aid, and what the Minister is saying applies, it will have to be necessary for the aggrieved person to show that the director of civil legal aid was Wednesbury unreasonable, which has only the remotest connection with the merits of the case. Is this really the system that the Government wish to inflict on people whose babies have suffered devastating perinatal injuries?

[Lord Wallace of Tankerness]

We do not wish to inflict the scenario which my noble friend indicates. The scale at which we believe the exceptional funding will be used is indicative of our expectation that exceptional funding will be available to assist these very profound cases. No one is disputing the seriousness of this. However, the amount of money that is being made available is not insignificant by any stretch of the imagination—£6 million out of the £16 million that is sought to be saved overall—which indicates that this measure is not just incidental but tries to address very directly the proper and sensitive concerns that have been raised.

[Lord Thomas of Gresford]

My noble and learned friend referred to Clause 9 and to exceptional cases. He will be aware that a specific category of special exceptional cases is delineated in that clause: namely,

“advocacy in proceedings at an inquest under the Coroners Act 1988”,

where there is a “wider public interest determination”. Are the Government prepared to consider whether in this very sensitive type of case there could be a subsection inserted into Clause 9 which deals with the very difficult issue of clinical negligence instead of leaving it under the broad wording of subsection (2)?

[Lord Wallace of Tankerness]

I thought that I was going to be diverted down the tracks of coroners’ inquests. However, I take the point which my noble friend makes. We believe that the relevant provision already covers the matter. He draws a comparison between measures within the same clause. We will have an opportunity to return to that matter when we come to Clause 9. It is only right that I should consider the point, which I am sure was made with helpful intent.

The question of relative costs has been raised and one or two noble Lords have pointed to the reservations made by the NHSLA. It is fair to point out that as regards the King’s College research which has been referred to, the Department of Health has confirmed that in the context of the reforms as a whole, which include all the Jackson reforms, the costs to the NHS are expected to reduce substantially and not to increase. It is important to look at the matter in the context of the overall impact of our reforms: namely, that the costs will decrease.

The noble and learned Lord, Lord Lloyd, has sought to contrast what he believes will be the cost of his amendment with the costs he believes will be incurred under Clause 45(2). He will be able to reply shortly. He quoted my honourable friend the Minister, Mr Djanogly. I think that the noble and learned Lord recognised that Clause 45(2) is a clear attempt to address the concerns which are shared not just by him and me but by the Committee as a whole. His view is that it would be more expensive to go down this route than to adopt his amendment. One of the differences between our proposal in Clause 45 and the use of legal aid for clinical negligence is that it would be restricted to those who are otherwise eligible for legal aid where the ATE power of recoverability will provide access to justice to everyone.

I think that the noble and learned Lord acknowledged my next point when he gave his figures. We do not readily recognise his figures. We feel that the costs of the ATE market as adjusted would not give rise to the costs which he indicated. I noted all his figures very carefully, but I probably was not quite keeping up with them. He said that he did not expect me to comment on the detail of his figures today but asked me to provide an answer. That is the least one can do, given the amount of work that the noble and learned Lord has clearly put into this. As I say, we do not readily recognise the case that he put forward. However, we must undoubtedly reflect on the issue. It would not necessarily make sense to embark on something which led to considerably greater cost when the overall object of the reforms is to reduce cost. I hope that with the assurance I gave at the beginning that we will reflect seriously on all the important issues that have been raised, the noble and learned Lord will withdraw the amendment.

[Lord Lloyd of Berwick]

My Lords, as was to be expected, the debate has gone far wider than the limited purpose of my amendment because this is the first opportunity that we have had to consider clinical negligence as a whole, and there are other amendments in this group.

So far as my amendment is concerned, everyone has accepted that expert reports are the key to the problem. The question then is: what is the best way to fund expert reports? I am especially grateful in that connection for the support of the noble Lord, Lord Faulks, given all his experience in this field. My impression was that his view is the same as mine and, indeed, that of Sir Rupert Jackson, whereby Clause 45 is not the way ahead. That is the purpose of my amendment. I am also especially grateful to the noble Baroness, Lady Mallalieu, for saying that the amendment is only the minimum required. On that I entirely agree. If clinical negligence generally is to be covered, my amendment will fall away, but it is the essential safeguard if there is not to be wider coverage by legal aid of clinical negligence cases.

Of course I will not press the amendment because I cannot do so until I know the Government’s answer to the figures that I have put forward. However, if those figures turn out to be correct, as I believe they will be, then Clause 45 is not the way ahead and it is far better from the point of view of saving money for the taxpayer to adopt the limited degree of legal aid required for expert reports. I look forward to the answer to the figures I put forward and, in the mean time, beg leave to withdraw the amendment.

Parliamentary Voting System and Constituencies Bill

Lord Wallace of Tankerness Excerpts

Wednesday 9th February 2011 Lords Chamber

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

My Lords, I start by thanking the noble Lord, Lord Pannick, for his amendment. I also thank all those who have contributed to what has been a very good debate. Given the way that the noble Lord, Lord Pannick, presented his amendment, I am sure several constituency associations will be lining up to engage him for various cases when the Boundary Commissions bring forward their proposals. I appreciate not only the manner in which the noble Lord presented the amendment but his willingness to engage. As he recognised in moving the amendment, considerable efforts have been made to see whether the Government and the noble Lord, Lord Pannick, could find common ground.

The effect of the amendment would be to give the four Boundary Commissions discretion to propose constituencies with an extended 15 per cent range—from 92.5 per cent to 107.5 per cent of the United Kingdom’s electoral quota—in the event that the commission considers that exceptional local ties or geographical circumstances make it necessary to create a viable constituency. As my noble friend Lord King indicated, at the heart of this part of the Bill is the principle of seeking equal value—one vote, one value—and doing so in order that the new boundaries can come into effect for the general election to be held in 2015. The Bill before your Lordships’ House is founded on the clear principle that constituencies should contain an equal number of voters. Having given great consideration to the points put forward and the detail, we do not believe that these principles would necessarily be achieved—they would certainly be put at risk—by passing this amendment, so we find that we must resist it.

The principle that constituencies should contain an equal number of voters is not exactly new. The existing legislation—the Parliamentary Constituencies Act 1986—requires the Boundary Commissions to recommend seats that are as near to equal as practicable. The problem with that legislation, as has been mentioned on many occasions during our debates in this House and the other place, is that although it clearly sets the goal of equal constituency sizes, the mutually contradictory rules in the Act result in a wide variation of constituency sizes. That is not an abstract problem. One person, as we have said, should mean one vote. Nor is it just a matter of local representation; the nature of our parliamentary democracy means that one’s vote is one’s stake in who forms the Government of the day. As we have also heard in debates, turnouts will vary but the system should not compromise an elector’s stake in the Parliament long before a ballot has been cast.

That is why the Bill that the Government brought to this House had very few named exceptions to the parity principle—only two constituencies out of 600. The specific exceptions that we made were born of the necessity to guarantee effective representation in constituencies that were not only geographically remote but had no obvious link to a mainland constituency. The same principle informs the geographical size limit, which also has very limited application. I acknowledge that there is a range of views across your Lordships’ House on which specific areas, if any, should have such treatment in the Bill. However, as has been said, the general principle of equality is accepted on all sides of the House. That equality informs the guiding principle in the rules in Clause 11. It is clear that absolute equality is neither desirable nor practicable. That is why the Bill already moves from absolute equality to allow flexibility for the Boundary Commissions to vary seats by 10 per cent between the smallest and the largest. My noble friend Lord Maples made that point. The amendment of the noble Lord, Lord Pannick, would allow a range of more than 11,000 voters between the smallest and the largest.

The figure of 5 per cent, moving as it does from absolute equality, has a rationale. We have made it clear that in our judgment it is the closest to equality that can be achieved while allowing wards to continue being the building blocks of constituencies in most cases in England. For local government reasons the wards in Scotland and Wales are somewhat different. However, the figure seeks to strike the right balance between the principle of “one elector, one vote” and the opportunity for local flexibility. Last night we debated a government amendment that will reinforce the notion that the commission should use wards in this way.

I hope no one can doubt the Government’s commitment to the guiding principle in the Bill: that as far as practically possible there should be equality of treatment between electors. In our view, the only case for exceptions to this principle should be where Parliament has determined that the exception is merited. We have debated, and will return later, to several specific exceptions. That is how we should move forward when we approach these very difficult issues.

The noble Lord, Lord Pannick, fairly pointed out some of the concerns that the Government have rehearsed with him as we have discussed these matters. Our first concern is that, although I understand where the amendment comes from, it breaches the principle of equality of treatment. The Boundary Commissions would be set a clear task by the Bill’s provisions: to propose constituencies that are within the same range of 7,500 electors across the whole of the United Kingdom, subject to the two named exceptions. There is also the exception that has already been voted for by the House. The same rule applies to everybody unless an exception has been explicitly approved by Parliament. That does seem to be an approach that is rooted in some principle.

By contrast, the amendment asks the Boundary Commissions to grant a number of special seats outside the general rule, effectively conferring special status on electors who live there. That could put the Boundary Commissions in a difficult position. Let there be no doubt that the Boundary Commissions would be in an invidious position. A decision about special treatment for one elector has a direct impact on an elector elsewhere. The noble Lord, Lord Pannick, said that the impact would be felt in a next-door constituency, but it does not necessarily follow that it would. This is particularly the case in Scotland, Wales and Northern Ireland, where there is less scope in the number of seats to make adjustments. To take Scotland as a case in point, on the 2009 electorate figures Scotland would have 50 seats plus the two exceptions. Once the commission had proposed a number of smaller seats at 92.5 per cent to take account of the sparsely populated areas in the highlands, the result would be that it would have to allocate larger seats on average elsewhere.

That could already happen to some degree under the Bill; the key difference is that at present under the Bill there is one rule for everyone. In other words, one part of the country’s exception would be another part of the country’s squeeze. There would be less flexibility in another part of the country, which might be some distance away. Under the amendment, the commission would be asked to award greater power to electors in a smaller number of seats outside the norm for the rest of the country. As my noble friend Lord Elton said, that goes against the principle of the value of the vote as set out in the Bill. The noble Lord’s amendment would ask the commissions to trade off the rights of different communities alongside potentially far-away constituencies.

There is a further point, which relates to timing. If these changes were made as a result of representations taken after the first period of consultation, because exceptional circumstances had been identified at the second phase, constituencies that were perfectly happy and content with the original proposals might well find that because a change was made in one or two places the ripple effect meant that what was acceptable first time around would not be acceptable second time around.

I recognise the attempts that have been made in the amendment. Regarding judicial review, on which much has been said in this debate, I agree with the noble Lord that the amendment would send a clear signal to any court considering a judicial review of the Boundary Commission’s decision to exercise flexibility. However, I am concerned less about the verdict of the court than the effect that the amendment might have on the conduct of the boundary review in practice. There might be an effect not only on how the commission balanced the specific factors referred to in the amendment but in the greater subjectivity to which the amendment could lead. The noble Lord’s prediction that a commission may ultimately have the support of the courts, if the matter were put before them, might turn out to be right, but the effect of giving the commission discretion for exceptional circumstances might, in the real world, mean that it felt compelled to use that discretion. The experience of trying to set a high bar to limit the exercise of discretion is not always encouraging. In reality, a procedure sanctioned expressly on the basis that it is intended as exceptional can, and sometimes does, end up becoming common practice.

My noble friend Lord Rennard made an important point on the question of what a viable constituency is. To whom is it viable? Is it viable to the electors or to the Member of Parliament? Also, there are four Boundary Commissions. If each took a different view on what constituted a viable constituency, the danger would be that we could move even further away from trying to achieve the equality that is at the heart of the Bill.

Even unsuccessful judicial reviews will have an impact on resources. I hear and give careful consideration to the points made by noble Lords with considerable experience, including the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Pannick. I also heard what the noble and learned Lord, Lord Scott of Foscote, said about the opportunity to use litigation and judicial review as a means of stringing things out. On many occasions in our debates, noble Lords have mentioned that it is important that the Boundary Commission proposals are presented to Parliament and passed in good time for the 2015 election to be fought on new boundaries.

I make a further point on the figure of 7.5 per cent on either side of the UK boundary quota. I have already described the Government’s case for a range of 5 per cent on either side. I am not sure what rationale there is for the figure of 7.5 per cent; perhaps it is because it is half way between 5 per cent and 10 per cent. Sometimes compromise is right, but, as I have indicated, strict equality would be zero. Our movement to accepting a 5 per cent variation already allows for some of the geographical considerations and local ties that have been mentioned.

In conclusion, exceptional treatment would not help some of the specific cases that have been debated—for example, in Argyll and Bute. It would not guarantee the sanctity of the Tamar. I recognise and welcome the spirit in which efforts have been made to find common ground on which we could have moved forward. I thank all noble Lords who have sought to help us make progress. However, I hope that I have set out that, in practice, the amendment not only would place the commissions in a difficult position but could breach the principle of equality of treatment that is at the heart of the Bill. There would be a potential risk that the Boundary Commissions’ target of reporting before the next election is fought in 2015 would not be met. I invite the noble and learned Lord to withdraw the amendment.

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[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Brooke for tabling the amendment and the other noble Lords, including the noble Baroness, who have spoken to it. As my noble friend said, Amendment 22E requires that the area of a special authority, as defined by the Local Government Finance Act 1988, should form part of only one constituency, and the constituency name should refer to that special authority. As he said, in practice, only one authority area satisfies the definition of a special authority, and that is the City of London. As has been explained many times, the number of exceptions in the Bill has deliberately been kept as low as possible. In introducing the Bill, the Government accepted only two seats where there is genuine extreme geography precluding them from being readily combined with other constituencies.

As has been said, we debated an equivalent amendment in Committee moved by the noble Baroness, Lady Hayter of Kentish Town. That made clear the expert knowledge of many noble Lords of the past and present of the City of London, and their connections with it. I certainly would not wish in any way to diminish the rich history of the City, nor the importance which the City has played and continues to play in the life and economy of our nation.

From a practical point of view, I hope that I can offer some reassurance by reminding the House that in the 25 wards in total, the City has approximately 7,000 electors, which is smaller than some individual wards. Although it would be for the Boundary Commission to decide, I suspect that it is unlikely that the City would be split between two constituencies. Nevertheless, I recall the argument made that it is desirable from an economic point of view to have one MP who can say unequivocally that he or she represents the City of London’s interests in Parliament. I certainly valued the opportunity to meet my noble friends Lord Brooke and Lord Jenkin and the noble Baroness, Lady Hayter. They elaborated on the potent arguments that they made in their speeches in Committee, which they have made again today.

I have clearly heard the case that they make. The Government understand the strength of that concern. Although I cannot commit myself to the wording of the amendment, I am happy to tell your Lordships' House that we will take this away and that I fully expect to be able to address the issue when we return to this at Third Reading. I hope that, on that basis, my noble friend will be prepared to withdraw the amendment.

[Lord Brooke of Sutton Mandeville]

My Lords, I thank those who have spoken in the debate; I am grateful to them for what they said. Everyone who has the welfare of the City of London at heart will be grateful for what the Minister said. In the light of his response, I beg leave to withdraw the amendment.

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[Lord McAvoy]

My Lords, in the forlorn hope that, as I have not moved three previous amendments, the House will be a little tolerant of me for a couple of minutes, I would like to spend those two minutes moving an amendment about Rutherglen, Cambuslang and Halfway. I have illustrated the arguments for Rutherglen, Cambuslang and Halfway many times before, so I do not intend to repeat them and abuse the patience of the House.

Those areas have been together now for about 100 years. There are close connections and a bond between the historic Royal Burgh of Rutherglen, the Cambuslang community and the former mining area of Halfway. In 1975, there was an attempt by a previous Conservative Government to destroy the communities by moving them into the City of Glasgow. A more enlightened Tory Minister, Allan Stewart, and I got Rutherglen, Cambuslang and Halfway out again. If one starts from the border with blocks of 75,000 or 76,000 people, as the Bill suggests, Cambuslang and Halfway could end up in the lower part of Scotland and Rutherglen could be in the northern part of Scotland; there would be only one way for Rutherglen to go and that would be with the City of Glasgow, which would mean the end of our parliamentary cohesion.

I hope a Liberal Minister replies because that would certainly make it plain to the people of Rutherglen, Cambuslang and Halfway that it is a Liberal Minister who is rejecting the amendment. I beg to move.

[Lord Wallace of Tankerness]

My Lords, as a coalition Minister, I am more than delighted to reply to the noble Lord’s amendment, which would result in an exception for Rutherglen, Cambuslang and Halfway so that they remained in a constituency which does not cross the boundaries of the South Lanarkshire Council area. The amendment in the Marshalled List brought back memories, as I recall my great aunt and uncle had a Halfway telephone number—I cannot remember the digits, but it was certainly Halfway exchange and, as a child, that always interested me as I wondered where it was halfway between.

I recognise the strength of the communities that the noble Lord used to represent in the other place but, as has been made clear on a number of occasions in Committee and on Report, the Bill as originally drafted had two named exceptions to the principle for a clear and tightly defined set of reasons. Both those exceptions involve remote locations and populations too small to be put in the parity target. The Bill now includes the Isle of Wight, following the vote in Committee on that. I do not think it is possible to argue that extreme geographical considerations apply in South Lanarkshire.

However, I have no doubt that when it comes to the Boundary Commission having regard to the circumstances and the community ties that link Cambuslang, Rutherglen and Halfway, it will be permissible under the rules for the Boundary Commission to take those ties into account and give such regard as it thinks fit to the fact that those communities have had historic links. I have no doubt that, under the public hearing arrangements for which the House voted yesterday, the noble Lord will—I have every certainty—make a very eloquent case when the opportunity for a public hearing comes, assuming that the Boundary Commission does not, in its original proposals, have Cambuslang, Rutherglen and Halfway together.

I think the noble Lord recognises that the case has not been made for an exception to be on the face of the Bill in this respect, but, of course, as I have indicated, community ties is an issue to which the Boundary Commission can have legitimate regard. I ask the noble Lord to withdraw his amendment.

[Lord McAvoy]

Obviously, I do not wish the Minister any ill will but I certainly hope that his late auntie and uncle are on his mind tonight when he is trying to get to sleep if he is going to do this to Halfway. I certainly hope that they have a word with him. Halfway is so called because it is halfway between Glasgow and Hamilton—I offer that bit of information to the noble and learned Lord.

The areas I have referred to suffer from the fact that they have had a Labour Member of Parliament for 46 years, and that seems to be a problem; other areas seem to find the circumstances to enable them to get exemptions from the Government. However, I recognise the reality and the bigger picture here in the sense that we will be dealing with different countries in the next amendment. I fully accept that. However, I assure the Minister that, when it comes to the campaign, the fig-leaf of claiming to be a coalition Minister will not do the Liberal Party much good in Rutherglen. I beg leave to withdraw the amendment.

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[Lord Kilclooney]

My Lords, I express my support for this amendment. The three nations within the union that will be most severely hit by this legislation are Wales in particular, Northern Ireland secondly and Scotland. I fully understand the sentiments expressed by the noble Lord, Lord Kinnock. They reflect my own feelings in Northern Ireland. The voices of Scotland, Wales and Northern Ireland are already overwhelmingly outnumbered in the other place, but they will be even more overwhelmingly outnumbered if this legislation goes through, which will cause considerable resentment and misunderstanding. I am sorry to say that I fear that it is a decision that, if taken by the majority who come from England, will damage the United Kingdom.

When we were involved in the discussions on the future of Northern Ireland, we were always told that the majority should be magnanimous to the minority. Here is an occasion where the Conservative and Liberal Democrat majority should be magnanimous to the minorities in Scotland, Wales and Northern Ireland.

[Lord Wallace of Tankerness]

My Lords, it has been evident from the good debate that we have had that this group of amendments looks at the allocation of seats to nations. Indeed, the amendment moved by the noble and learned Lord, Lord Falconer of Thoroton, could apply to Scotland, Wales and Northern Ireland, although until the previous contribution from the noble Lord, Lord Kilclooney, we focused, understandably, on Wales. From the outset, I should say that I recognise the passion with which these arguments have been put. Amendment 25ZB seeks to ensure that the allocation of seats to any part of the United Kingdom will be within 10 per cent of the current allocation. It provides for an additional allocation of seats, if the Sainte-Lague process set out in rule 9 results in an allocation that reduces the number of seats by more than 10 per cent of the current allocation.

In spite of its name, the process nevertheless recognises the fairest way to allocate seats. The British Academy report explicitly refers to it as such. It is the method that the Electoral Commission uses to allocate seats to European parliamentary regions, and the Government believe that it is the right method to use in allocating seats to parts of the United Kingdom. For those reasons, we have written it into rule 9, so that it will apply in this case.

The proposed amendment would undermine this fairness by putting an artificial floor on the process. The proposed top-up of seats would tamper with the balance struck by the Sainte-Lague method of allocating seats between the constituent parts of the United Kingdom. We do not believe that it can be right to change the result derived from a system recognised, as the British Academy report described it, as,

“the fairest way of making such allocations”.

In practical terms, the amendment would create a reduction in stages for Scotland, Wales and Northern Ireland. When the secretaries of the Boundary Commissions were giving evidence to the Political and Constitutional Reform Committee, their clear advice was that there were advantages in making the reduction in one go. The Government consider that one reducing review would be less disruptive to constituents and Members in the other place than the continuing reductions that this amendment would introduce. I think that I have calculated properly that, under the amendment, in 2015, Wales would move from 30 to 36 and, in 2020, from 36 to 32. Only in 2025 would it would reach the level that would put it on an equal basis with other parts of the United Kingdom.

I reassure noble Lords that we are not proposing less representation for Wales than for other parts of the United Kingdom. This Bill provides that the value of a vote in Wales will be the same as the value of a vote in England, Scotland and Northern Ireland, within a 10 per cent range of tolerance. I do not see how that can be doubted. It is not like putting the Welsh team on to the field at Murrayfield next Saturday with three men less, as the noble Lord, Lord Morgan, suggests. It would be putting them on the field with three men more, if the amendment was agreed. The provisions are fair to the voters in the constituent parts of the union. Of course, there will be a reduction in the number of constituencies in Wales, as in the rest of the UK, but overall the proportion of Welsh seats in Westminster will go from 6 per cent to 5 per cent.

The Government believe that the system proposed in the Bill, whereby seats are allocated to constituent nations in a well recognised and fair process, giving electors equal value across the United Kingdom, is the best way of bringing about fairness in all parts of the United Kingdom.

Amendment 30, introduced by the noble Lord, Lord Touhig, and spoken to by the noble Lord, Lord Anderson of Swansea, would make any boundary change in Wales contingent on the National Assembly for Wales gaining enhanced legislative powers in the referendum held on 3 March. The amendment leaves open the possibility that a key objective of this Bill would not be achieved. Every elector's vote in elections to the other place would not have the same value if this amendment was agreed. As I said about the amendment from the noble and learned Lord, Lord Falconer, we are not proposing less representation for Wales. The value of a vote in Wales will be the same as the value of a vote in England, Scotland and Northern Ireland, within a 10 per cent range of tolerance. I cannot see where the unfairness is to electors in Wales.

[Lord Morgan]

I apologise for interrupting the Minister, but may I point out that every single argument that he has used is simply mathematical? He has considered no other aspect of Wales at all, culturally, politically or socially, and he has based that on a very selective reading of the British Academy report.

[Lord Wallace of Tankerness]

I do not believe that it is simply mathematical. It relates to the principle of equal value, and one value for one vote. That is not a mathematical concept but a matter of fairness. It is equally wrong to suggest that the provision does not have regard to the cultural and historical matters in Wales. I indicated that to the noble Lord, Lord Elystan-Morgan, in the previous debate. I recognise Wales as a constituent nation of our United Kingdom, but other parts of the United Kingdom have their own historical and cultural importance and ties, as indeed do parts of England as well as England as a whole. What I have not yet heard answered by anyone who has argued the case is why a vote in Swansea should carry more value than a vote in Newcastle, Coleraine or Aberdeen. Each of those other cities have their own importance and distinctiveness, and I have not yet heard an answer to why the citizens of Swansea should have a vote to the United Kingdom Parliament that is worth more than the vote of a citizen in Newcastle, Aberdeen or Coleraine.

[Lord Touhig]

I understand the point that the Minister is making, but how does he stand that argument up when his Government are making a deliberate exception for Orkney and Shetland? Their votes will not be equal to the rest of the votes in the United Kingdom.

[Lord Wallace of Tankerness]

That case has been argued, and we have had specific debates on that and an amendment from the noble Lord, Lord McAvoy. What we have said—and I think I have said it about three times already, this afternoon and in Committee—is that the Government have put into the Bill two exceptions in places with extreme geographical situations and no ready link to anywhere on the mainland. In the rest of the United Kingdom we are seeking one vote and one value.

[Lord Anderson of Swansea]

My Lords—

[Lord Wallace of Tankerness]

Perhaps the noble Lord, Lord Anderson, will tell me, if I let him intervene, why a vote in Swansea should be worth more than a vote in Aberdeen.

[Lord Anderson of Swansea]

Because, historically, there has been a Welsh exception and no exception elsewhere. The Minister is crucifying Wales on a mathematical altar and deliberately reducing the voice of Wales in Westminster.

[Lord Wallace of Tankerness]

The simple answer to that is that there was an exception in respect of Scotland under the 1986 Act. I think that the noble Lord, Lord Morgan, mentioned that the 1986 Act said that there would be no fewer than 35 seats; the same Act said that there would be no fewer than 72 Scottish seats. Yet the last Labour Administration repealed that. I do not criticise them for that—indeed, I supported it. The number was reduced by some 18.5 per cent.

[Lord Elystan-Morgan]

I greatly respect the integrity and ability of the noble and learned Lord, but his whole argument is based, is it not, on the question of equality? He equates equality totally with arithmetical consistency. Is not that a total fallacy?

[Lord Wallace of Tankerness]

This is not down simply to mathematics. The principle at the core of this part of the Bill is to ensure the equality of the ballot, which all of us hold very dear indeed and which is not a purely mathematical thing. One elects one’s representative to sit in the other place and, by doing that, contributes to what the Government of this United Kingdom will be. There is a merit in that vote having equal value in all parts of our United Kingdom.

[Lord Howarth of Newport]

Even on his own basis—that numerical equality is the only thing that really counts—the Minister is under an illusion in supposing that, by achieving numerical equality between constituencies in Swansea and Aberdeen, he necessarily creates votes of equal value. The value of votes will also depend on registration, turnout and marginality in particular constituencies. He is pursuing a chimera in this respect, while at the same time ignoring that the basis of parliamentary representation in the United Kingdom has historically been that constituencies should be expressive of communities. Communities in Swansea and Aberdeen are, of course, of equal value, but the design of their parliamentary representation should reflect their particular characters.

[Lord Wallace of Tankerness]

My Lords, we have rehearsed the arguments before about matters such as turnout, on which, I accept, the Government cannot legislate—and turnout will have an effect—but on the morning of the election before anyone has turned out, at least what we are seeking to do gives a greater likelihood of equality before factors such as turnout come into effect. It does not say much for the quality of the value of a vote if, before you have even gone to the polls, an imbalance is already implicit in the system.

[Lord Kinnock]

Does the Minister accept that he can offer what we could call the Swansea-Aberdeen question in the form in which he puts it only because, without an electoral mandate, this Government are proposing to cut the number of seats in the House of Commons at one cut by 50 seats, from 650 to 600? Were it not for that, he could certainly have his equalisation of constituencies, and even a reduction in the number of Welsh seats, without inflicting on Wales or the rest of the country all the difficulties that have rightly been identified in the course of this debate.

[Lord Wallace of Tankerness]

My Lords, we have had many debates on the size of the other place, and I think that we voted on it yesterday evening. Certainly, there have been many counterproposals to 600, but 600 is the number in the Bill. We have passed that point in our deliberations. It is what the other place agreed to, and it has not been defeated or changed by any debates or votes in your Lordships' House. With 600, I have not yet heard the argument why Wales should be treated preferably to other parts of the United Kingdom. It cannot be related to devolution because, if we did that, we would have to calibrate different parts of the United Kingdom depending on the different powers that respective Parliaments had.

[Lord Morris of Aberavon]

Will the Minister put on one side this dogmatic reliance upon simple arithmetic? Why, over decades, have our predecessors agreed that the magic figure of representation to meet the needs of Wales was 35? Is it not a recognition of the need of a small nation to have a voice? If a small nation is incorporated into a larger nation in a union, is there not a case for the voice of the smaller nation to be adequately represented, hence our predecessors’ magic figure of 35?

[Lord Wallace of Tankerness]

My Lords, I would passionately defend a united kingdom, but I do not honestly believe that it is doing service to all parts of the United Kingdom if we say that some part of it needs a hand-up. I believe in each of the constituent parts of our United Kingdom—Scotland, Wales, Northern Ireland and England—having equal status. That is why, when the other place is dealing with issues such as defence or macroeconomic policies, the votes of a person in Wales should carry equal value to those of a person in Scotland, Northern Ireland and England. That is not unfairness or inequality. In fact, to do otherwise would put inequality into the system. I therefore ask the noble and learned Lord to withdraw the amendment.

[Lord Falconer of Thoroton]

My Lords, as the noble and learned Lord said, “I have not heard why Wales should be treated differently”. Our amendment simply proposes getting to the same point as everyone else but doing it in a gradual way that does not put the union under strain. Not once did the Minister address that argument. I wish to test the opinion of the House.

Parliamentary Voting System and Constituencies Bill

Lord Wallace of Tankerness Excerpts

Monday 24th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I start by apologising on behalf of my noble friend Lord McNally, who, as some of your Lordships noticed, left some moments ago feeling somewhat unwell. I know that that is not something that he would do lightly. I have the slight difficulty of having not having been in the Chamber for the whole debate, and I intend no discourtesy to the Committee in that. I shall do my best, although some of the arguments are perhaps familiar from previous times.

The amendments adjust the factors that the four national Boundary Commissions are to consider in drawing up boundaries. In some cases, they give the commissions additional tasks or they take away their discretion. In most contributions, the size of the House of Commons was raised. We debated that at considerable length last week and I do not propose to rehearse the arguments again.

As the noble Lord, Lord Bach, indicated when he spoke concisely to his amendment and those in this group, the criticism that would appear to come from the other side of the Committee is that although the Boundary Commission is given discretionary factors which it can take into account to the extent that it thinks fit, it is nevertheless subject to rule 5(3), which says that the discretion,

“has effect subject to rules 2 and 4”,

with rule 4 being the area, which has already been debated today, and rule 2 being the electoral quota and a 5 per cent variation either way.

I appreciate that I repeat myself from previous discussions when I say that these rules are designed to ensure that we rein close to the electoral quota whereas, while the quota is the focus of what the Boundary Commission is currently expected to do, circumstance and the factors of flexibility that noble Lords seek in this case have taken boundaries reviews ever further away from it. It is worth repeating that the British Academy Policy Centre, in commenting on the Bill, states that,

“the rules set out in the Bill are a very substantial improvement on those currently implemented by the Boundary Commission”.

We believe that the rules set out in the Bill strike the right balance. Some noble Lords have argued that we should remove the English Boundary Commission’s ability to take European regions into account. Others say that we should compel it to do so. The Bill says that the commission should have the discretion if the regions help them to manage the review, which is the right balance.

The noble Lord, Lord Foulkes of Cumnock, moved an amendment that would have added wealth as a factor. The Government cannot agree on principle that people should be banded together in constituencies on the basis of similar income. I am not quite sure how such a thing would be measured by the commissions even it was desirable. I can confirm that wealth was not a factor in previous boundary legislation. Our view is that the factors in the Bill are broadly those that are in existing legislation and that have worked well in previous reviews. Again, I believe that this is the right balance.

As I have indicated, some amendments compel the commissions to have regard for the rules, and some remove the primacy of the parity requirement. Our position is that the rules give due discretion to the commissions, but I reassure noble Lords that while the legislation says, “may take into account”, it is not open to a commission simply to disregard the factors on a whim, as has perhaps been suggested in some contributions. So further tightening up of the wording is unnecessary and could prove unhelpful.

I have already said, as we have indicated in debates on previous amendments, that the Government will consider how we can add wards to the list of local government boundaries that the commissions are asked to consider at present. As for parity, the rules give flexibility within a 10 per cent variation from the smallest to the largest constituency. Again, I believe that that strikes the right balance, giving us flexibility to recognise properly local factors while ensuring that votes are fairer and have more equal weight—a principle to which even Members on the Front Bench opposite have said that they agree. On that basis, I apologise for not being able to answer as fully as my noble friend Lord McNally would no doubt have wished to, but I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I agree with the noble Lord, Lord Davies of Stamford, and very much with my noble friend Lord Lipsey. I agree with the important amendment moved by the noble Lord, Lord Tyler, which is in his name and that of the noble Lord, Lord Rennard. They obviously understand history. They know what happened in the 1950s when, as the second boundary review came around after the Second World War, MPs rebelled at the thought that there were going to be so many changes in constituencies. That was completely reflected in debates that we had earlier in this Chamber, in which ex-MPs and non-ex-MPs pointed out that, if you break the link between a Member of Parliament and his constituency, you undermine democracy and you create uncertain relationships. The then Conservative Government produced a Bill that, in effect, made the disruption much less. From this Front Bench, we support the principle underlying what the noble Lords, Lord Tyler and Lord Rennard, are seeking to achieve, which is to reduce the disruption.

However, the speech that my noble friend Lord Kinnock made has to be borne in mind, because we can reduce the disruption only by so much if we have what he described as the “eunuch” clauses. I anticipate that there will be those on the Benches on which the noble Lords, Lord Tyler and Lord Rennard, sit who think that the way to deal with the points made so persuasively by my noble friend Lord Kinnock would be by moving the 5 per cent up to 10 per cent; they think that that would make a substantial contribution to dealing with the point about the ongoing relationship with a Member of Parliament.

So, yes, I support the amendment proposed by the two noble Lords, but I also hope that they will engage in this debate properly. By that I mean that I hope that they will put forward arguments and amendments that they think will genuinely improve the Bill. I read the amendment that the noble Lord, Lord Tyler, has put forward as doing that, but I very much hope that they will feel able to express honestly their view as to whether the threshold should be 5 per cent or 10 per cent. If they did that, they would, I think, unlock one of the principal problems in the Bill.

I very much hope that the noble and learned Lord, Lord Wallace of Tankerness, whom I congratulate on dealing with the last amendment—he was rather given it beyond the last moment—will find it in his heart to support what the noble Lords, Lord Tyler and Lord Rennard, have proposed. However, I also hope that he will address the issue that the amendment goes only so far and that it is only if we add more discretion—5 per cent to 10 per cent—that we make it meaningful. It is important to take into account what has been said in these debates quite widely across the House—that it is not a good idea to have a constantly changing constituency with a constantly uncertain Member of Parliament.

[Lord Wallace of Tankerness]

My Lords, this amendment proposed by my noble friend—in a way that, I am sure, if I may take the words of the noble and learned Lord, Lord Falconer, he genuinely thinks will improve the Bill—would add existing constituency boundaries to the list of factors in rule 5 that the Boundary Commissions may take into account when drawing up their recommendations for new constituency boundaries. I think that it is a perfectly reasonable proposal and we certainly agree with noble Lords that this would aid the Boundary Commissions in drawing up their recommendations, not only in the first boundary review but obviously in the subsequent ones as well. As has been said, it is the case that, particularly in the first review, the Boundary Commissions expect that there will be a considerable change owing to the reduction in the number of seats from 650 to 600. Nevertheless, I believe that this amendment will allow for the merits of existing boundaries to be taken into account where appropriate, thereby ensuring that the boundary commissioners do not have to start with a blank page. Therefore, the Government are content to accept this amendment.

Amendment 74BA agreed.