Parliamentary Voting System and Constituencies Bill

Lord Wallace of Tankerness Excerpts

Monday 13th December 2010 Lords Chamber

[Lord Foulkes of Cumnock]

Yes, I can. Ireland is a good example of a country in the European Union.

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

But we always have reciprocal arrangements with Ireland.

[Lord Foulkes of Cumnock]

Indeed, but that is just one example; I was asked for only one example and I gave it to my noble friend. I knew what he was getting at but I was not going to fall into that trap. Maybe he would like to come back.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, in this group there are two amendments and the clause stand part debate. The first, Amendment 39, is in the name of my noble friend Lord Foulkes of Cumnock, and seeks to delete Clause 4(3) on taking,

“The polls for the referendum and the Scottish parliamentary general election”,

together. The second amendment, Amendment 39A, is in the name of the noble Lord, Lord McNally. I have also given notice of my intention to oppose the Question that Clause 4 stand part of the Bill. I will come back on anything that the noble and learned Lord, Lord Wallace, says about Amendment 39A. That might be the fairest way to deal with it, unless the noble and learned Lord wants to speak before me on Amendment 39A. I am entirely in his hands.

[Lord Wallace of Tankerness]

If the noble and learned Lord thinks it would be helpful for me to speak to Amendment 39A, I will also deal with the other points that have been made and perhaps come back to him after he has had an opportunity to speak.

This has been an interesting debate. Some of the arguments have been well rehearsed before. In a debate a week ago tonight in Committee, the noble Lord, Lord Foulkes of Cumnock, sought in a very similar amendment not to have the referendum on 5 May. My noble friend Lord Strathclyde, the Leader of the House, responded, and the House took the view quite clearly that the amendment should not pass. I am always slightly wary of this position. I can understand the noble Lords, Lord Lipsey and Lord Campbell-Savours, who I think are basically in favour of some form of electoral reform, counselling against the date, but when the noble Lord, Lord Foulkes, who I know wants a no vote, tries to tell Liberal Democrats what is in their best interests, Greeks bearing gifts tend to come to mind. It is also interesting that the two sides of the argument—the one side that wants no and the other side that wants yes—think that there are equally good reasons for not having the referendum on 5 May. In some respects, they cancel each other out.

[Lord Foulkes of Cumnock]

The noble and learned Lord will recall that when I said that, I was talking about a conversation that I had had with a Liberal Democrat Peer, whom I wanted to remain anonymous, who argued with me that the date should be separate and that he should support my amendment. I was saying that this was the advice that I was being given from one anonymous Liberal Democrat.

[Lord Wallace of Tankerness]

I know that the noble Lord is always willing to give advice to Liberal Democrats. It is for Liberal Democrats to judge when and when not to accept his advice.

We rehearsed some of these arguments with the noble Lord, Lord Browne of Ladyton, during the debate in the House last Thursday on the order relating to the Scottish elections in 2011. The point about this debate on the amendment in the name of the noble Lord, Lord Foulkes, which indeed relates to Scotland, in combination with the clause stand part debate on local elections and perhaps some mayoralty elections in England, elections to the Welsh National Assembly, and a series of elections and other local referendums in Northern Ireland on the same day, is that the effect of the noble Lord’s amendment—

[Lord Falconer of Thoroton]

What the Government are doing in the Bill is saying that the polls to be taken together are local authority elections in England, local referendums in England not Northern Ireland, and mayoral elections in England, as well as the Welsh Assembly general election, the Scottish parliamentary general election, the general election of Members of the Northern Ireland Assembly, and the Northern Ireland local elections.

[Lord Wallace of Tankerness]

That is correct. I am grateful to the noble and learned Lord for setting that out ad longam. However, the point about the amendment, or indeed the clause failing to pass, is not that the poll for the referendum on the electoral system for the alternative vote could not take place on 5 May; it is, rather, that two polls could take place but would not be combined. It is important that we recognise just what the impact would be either of not letting this clause stand part or of passing the amendment in the name of the noble Lord, Lord Foulkes.

[Lord Falconer of Thoroton]

That is an interesting point. Clause 4(1) states:

“Where the date of the poll for one or more of the following is the same as the date of the poll for the referendum, the polls are to be taken together”.

That refers to,

“a local authority election in England … a local referendum in England … a mayoral election in England”.

What the noble and learned Lord has said in relation to that is right; that is, if they are on the same day, they can all take place in the same polling station. However, Clause 4(2) to (4) appear to be different. They state that it is compulsory for the polls to be taken together, so they have to be on the same day.

[Lord Wallace of Tankerness]

That point was raised on Report in another place. In fact, it does not need necessarily to be the referendum. I think that I am right in saying that the Scottish Parliament, the Welsh National Assembly and the Northern Ireland Assembly have the powers themselves to move the date. Therefore, if they were to use those powers, it would not make sense that they should be stuck together. Amendment 39A seeks to address that point.

[Lord Falconer of Thoroton]

Will the noble and learned Lord confirm what I am saying? Under Clause 4(1), it is permissive, if they are on the same day, for the three named elections to be dealt with together—for example, in the same polling station. Subsections (2) to (4) refer to the Welsh Assembly elections, the Scottish parliamentary elections and the Northern Ireland Assembly elections. As a result of this wording, they have to take place on the same day.

[Lord Wallace of Tankerness]

If that is taken along with Amendment 39A, which provides:

“If any of the elections referred to in subsections (2) to (4) are not held on the same day as the referendum, this Part has effect with any necessary adaptations and in particular … if the Welsh Assembly general election in 2011 is not held on that day, subsection (2) and Schedule 6 do not apply”.

There is a similar provision for the Scottish parliamentary election. Paragraph (c) to be inserted under Amendment 39A states that,

“if any of the elections referred to in subsection (4) are not held on that day, that subsection and Schedule 8 either do not apply or apply only in relation to the elections that are held on that day”.

So there is provision for a separation.

[Lord Falconer of Thoroton]

To come back on that, I found the drafting of Amendment 39A extraordinary. Under Clause 4(2) to (4), there is a requirement, as the noble and learned Lord has just confirmed, to have the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly elections on the same day. But if they are not held on the same day—for a hurricane or something like that—then provision is made. Surely, subsections (2) to (4) would need to be amended as well in order to give meaning to Amendment 39A.

[Lord Wallace of Tankerness]

The purpose of the combination is that if the elections take place on the same day and are not, for some other reason, separated, they should be combined. If they are not combined, the amendment would have the polls being conducted on the same day, but separately. For example, there would be no effective provision for administrators to use the same ballot boxes. There would have to be separate polling stations, which, technically could be within the same building, but they would have to be separate, or they might not necessarily be in the same building. As I am sure that the noble and learned Lord realises, that is the purpose of the combination.

[Lord Falconer of Thoroton]

I am sorry, but if the noble and learned Lord looks at the wording, there is a distinction. Clause 4(1) refers to the fact that where they are on the same day they can be held together, which is plainly the point about not having to be in separate polling stations. Subsections (2), (3) and (4), as I thought the noble and learned Lord had confirmed, are drafted in different terms and are put on the basis that:

“The polls for the referendum and the Welsh Assembly general election … are to be taken together”.

So there is a requirement that they must be taken together, which means that they must be on the same day.

[Lord Wallace of Tankerness]

The noble and learned Lord will recall—he is stating the obvious—that when this Bill was brought to this House from the other place the referendum, prior to the successful amendment of the noble Lord, Lord Rooker, would have been on the same day. Therefore, as they were going to be on the same day, it made good sense, as I hope the House would agree, that the polls should be combined. I do not think that the Government should stand accused because there has been an amendment—the consequential amendment was not necessarily made here. In the debate last Wednesday, the noble Lord, Lord Rooker, was encouraging the Government to bring forward an order which would make it 5 May but could be subject to change as long as it was before 31 October.

So, when the Bill came to this House it stated that the referendum would be held on 5 May. That is the date for elections to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. Therefore it makes sense, if the referendum is still to be held on 5 May, and indeed it is still the Government’s position that they can achieve a referendum on that date. The Bill that was passed by the other place, published and brought to this House provided that the referendum would take place on the same day. I hope the noble and learned Lord and other Members of the Committee would agree that if they are held on the same day, it makes eminent common sense to combine the polls, and that is what is sought in Clause 4.

[Lord Falconer of Thoroton]

What the noble and learned Lord says is correct. If they are to be held on the same day, it is wholly sensible to combine them. Why are subsections (2), (3) and (4) set out in different terms from subsection (1)? If the reason for Amendment 39A is the result of my noble friend Lord Rooker’s amendment, why not just amend it and say that if the polls for the referendum and the Welsh Assembly take place on the same day, which is the effect of subsection (1), then they are to be taken together?

[Lord Wallace of Tankerness]

My Lords, I think that I have explained this. It has been a matter of some debate, but nevertheless it was expected that the elections to the Scottish Parliament would be held on 5 May 2011. It was expected that the elections to the Welsh Assembly would also be held on that day. Therefore, given that that was the date originally set out in the Bill as it came to the House prior to amendment, it makes sense to combine them. But before I sit down I will try to set out why the terms are somewhat different for the polls that will be taking place in England on that date. It could be that a particular date has not yet been set for a particular local referendum. That could be a possible explanation, but before I conclude, I hope there may be some explanation as to why the terminology is somewhat different.

[Lord Hamilton of Epsom]

Could my noble and learned friend address the whole issue of confusion? On 5 May, two important issues are going to be debated with the voters. One is who gets elected to all these local bodies, the Scottish Parliament and so forth, and the other is the question of the referendum on the alternative vote. But as we have discovered already, the noble Lord, Lord Lipsey, may campaign in favour of the alternative vote and in favour of a Labour candidate. The noble Lord, Lord Foulkes, will campaign in favour of a Labour candidate and against the alternative vote. Is this not going to create confusion among the electors? Even on the Conservative Benches, if we look hard enough we may find someone here who is in favour of the alternative vote. I do not know who it is, but if we look hard enough, perhaps we will find somebody. They would ask voters to be in favour of the alternative vote in the referendum while at the same time supporting a Conservative candidate, while the overwhelming number of Conservatives would probably ask voters to vote against the alternative vote and in favour of the Conservative candidate.

These are two important issues. Is there not a very strong argument to consider them on separate days so that they can be debated properly and separately? They will not then be mixed up in the way that they are due to be at the moment.

[Lord Wallace of Tankerness]

In reply to my noble friend, these issues were rehearsed when considering a specific amendment not to have the referendum on 5 May next year. The amendment was defeated by 210 votes to 166. I do not doubt for a moment that there will be a campaign on the yes and the no sides for change to the alternative vote and that people will also be campaigning on the local elections. I do not believe that that will confuse the voters. There will be a clear question on what system of elections they want for the other place in the future and there will be clear questions on who they want to elect to the local council, the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly. While I suspect that the co-operation between parties may not be as cordial as it might otherwise be, as we have already seen embryonically, various people across the parties are coming together to mount joint campaigns for the yes or the no vote. It is rather a sad reflection on our politics that people who want to come together to argue a particular case for a future voting system cannot do that and campaign for a local candidate of their own party at the same time.

[Lord Campbell-Savours]

May I remind the noble and learned Lord that he is speaking to his amendment, and that the contribution he has just made should follow on the next contribution, which comes from my noble friend who will wind up the debate prior to the Minister’s reply?

[Lord Wallace of Tankerness]

With respect, my noble friend asked a question and I thought it only courteous to give him an immediate reply.

[Lord Rooker]

I had not really studied this amendment, and it did not cross my mind that it was a reaction to last week’s amendment. However, Amendment 39A says:

“If any of the elections referred to in subsections (2) to (4)”—

that is, the elections in Scotland, Wales and Northern Ireland—

“are not held on the same day”.

What are the circumstances envisaged in which they will not take place on the same day? I did not think that they controlled their own dates at present, so which circumstances have brought about Amendment 39A whereby those elections would not take place on the same day as the referendum? I am not clear about that.

I have another point. The accounting officers of those Parliaments will be driven by subsections (2), (3) and (4), which order those elections to be taken together at the same time as the clause envisages that they will not be. The lawyers in those areas will be spending money on planning, but it looks as though there are two different and contradictory instructions on what will be in the same clause. But my main point is the first one—what are the circumstances envisaged?

[Lord Wallace of Tankerness]

I am hugely grateful to the noble Lord, Lord Rooker, for allowing me the opportunity to explain the origin of this. I do not want to disappoint him; it was not as a direct response to his amendment which was carried. As I indicated, the Bill provides in this clause for a combination of the poll on a referendum with the polls for the elections to the devolved legislatures. During the Bill’s Report stage in another place concerns were raised that the current drafting of the clauses restricts the ability set out in existing legislation for the date of the elections to the devolved Assemblies to be moved to a day which would be different from that on which the referendum is scheduled to take place. In order to avoid confusion, we have tabled this amendment to make it clear that the existing legislative powers to change the date of the polls for the Welsh Assembly, the Scottish parliamentary election and the Northern Ireland Assembly elections are not affected by the combination provisions in the Bill.

I think I am right in saying that the Scottish Parliament can bring forward the election. I am getting reassurance on that from a Member of the Scottish Parliament for the Lothians region, the noble Lord, Lord Foulkes. It can bring it forward by six months on a two-thirds vote or resolution of the Parliament. Concern was expressed—I do not think that it was specific to Scotland—that it might be felt that the statutory provisions in the Scotland Act, and in the parallel provisions of the legislation establishing the Welsh National Assembly and the Northern Ireland Assembly, were being impeded or restricted in some way by this provision. It was to avoid any confusion of that nature that this amendment was tabled, to make it clear that the existing powers are not affected.

I hope it is accepted that that is a perfectly valid position to take. If any of these Parliaments or Assemblies wish to change it within their own statutory powers, for whatever reason, that should not be inhibited by the provision in the Bill. This is for clarification. I defer to one of the noble Lords who saw through the Scotland Bill all of 12 years ago.

[Lord Sewel]

Not only that, my Lords, but I have form in that I put a referendum Bill through this House at one stage. Does the noble Lord accept that the empirical evidence, both from this country and from one which has used referenda many times in a quasi-political role, France, is overwhelmingly that when it comes to referenda the electorate votes not on the question before them but on the popularity of the Government of the time? On this issue, does not conflating the issue of the merits of the electoral system with the popularity of a Government fill him with horror, particularly in Scotland?

[Lord Wallace of Tankerness]

Given that one part of the Government is likely to be supporting the yes campaign and one part, as likely as not, will be supporting the no campaign, I rather think that that might encourage people to look at the merits rather than find the best way to take it out on the Government. If there are two parties in a coalition and they are on either side of the argument, it is difficult for that argument to hold as much water as I accept that perhaps it has in the past. I am sure that the referendum on 1 March 1979 was not helped by coming immediately on the back of the winter of discontent. Nevertheless, that allowed a fair amount of cross-party support to try to get the yes vote out, and indeed the no vote. It is up to those of us who want to campaign to ensure that we are campaigning on the issues and not on some test of the parties in power. The fact that the poll is being held on the same day as other elections may mean that some of the more partisan effects that referendums—or referenda, whichever is your preference—may have on the question could be channelled into the elections being held that day. It may mean that we can have a proper debate on the relative merits of changing to the alternative vote system or of sticking with first past the post.

[Lord Falconer of Thoroton]

The Minister is giving a very helpful explanation of why he has put this amendment forward. In the light of what he has said, I now understand why he has done so, but the amendment does not seem to achieve its end. I understand him to be saying that the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly have the power to change the date of their elections and that, if they did so, the Government would not seek to move the date of the referendum. So the Government’s position is that if the polls are on the same day, they should be combined.

Clause 4(1) says precisely that. Why on earth are the Government drafting the Bill in the terms in which it appears to be drafted—that the polls for the referendum, the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly have to be held on the same day? Why are they not drafting it on the basis that, if the polls for the referendum and the Welsh Assembly are on the same day, they are to be taken together?

We do not agree with combination—we will come to that later when we say that Clause 4 should not stand part—but I cannot understand why the Minister is being advised that this is the way to achieve what he so clearly describes. Why are the Government not just saying that if the polls are on the same day, they are to be taken together?

[Lord Wallace of Tankerness]

As I have already explained, 5 May was the date originally set out in the Bill. I do not think that anyone is disputing that. It was the date set down for the elections for the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. I shall speculate, and I hope that I can get confirmation for this, that there could be a local authority election in England that may not necessarily be on 5 May, whereas the Scottish parliamentary election has been set for 5 May.

[Lord Falconer of Thoroton]

But it could be changed.

[Lord Wallace of Tankerness]

The noble and learned Lord says that it could be changed. That is why we have brought forward the amendment. I do not believe that it contradicts at all.

I shall recapitulate. There could be a local authority election in England that need not be on 5 May. When the Bill was brought to this House, having been passed by the other place, it had been agreed in the other place that the referendum should be on 5 May. That was the date set for the Scottish election, the Welsh Assembly election and the Northern Ireland Assembly election. It therefore makes sense, and I think that this has been widely conceded, that if the elections were to be held on the same day, as was anticipated when the Bill was brought to this House, the polls should be combined for a host of good, sound administrative reasons. Subsequently there has been a change.

It was drawn to our attention on Report in another place that there was a potential problem. Because of the inherent powers in the statutes establishing the three devolved institutions, the election might not be on 5 May if they chose, for whatever reason, to exercise those powers. That is why Amendment 39A has been tabled. The noble and learned Lord may wish to debate whether it achieves its purpose. I think I have explained what its purpose is; it is to ensure that there was no dubiety and that the powers given to the Assemblies and the Parliament were not in any way infringed by the provisions.

That is it, very simply. I think it is relatively simple. The dates were anticipated, because of the way the Bill stood, to be the same. There could be a local authority election in England that did not necessarily fall on 5 May. The purpose of the government amendment is to provide that, if the Scottish Parliament—for the sake of argument—wished to change the date, it would be allowed to do so. It would not be inhibited from doing so by these provisions.

That is why the political arguments around whether the date is right or wrong are not relevant to this clause, which is, in some respects, a technical clause. It links to the various schedules. I pick up the point of the noble Lord, Lord Lipsey, who pointed to all the schedules when my noble friend Lord McNally said that this is a simple Bill. The schedules have been put into primary legislation, making provision for combining polls in England, Wales, Scotland and Northern Ireland. There are four separate schedules, covering matters that, in many cases, would be put into secondary legislation. However, for simplicity and given the nature of this matter, it made more sense for them to appear in primary legislation in the Bill. This led to extending the length of the Bill considerably, but that is why the schedules are there: it was thought better to have the combination of provisions in the Bill.

I rather hope the noble Lord, Lord Foulkes, will accept that the consequence of his amendment—this is why I ask him to withdraw it—would not necessarily be to change the date of the poll. He has already lost an amendment specifically on that. It would, however, mean that if the two polls were held on the same date, they could not be formally combined. Therefore, there might be people who would have to go to two separate polling stations. That is not in anyone’s interests.

I know that this is perhaps more technical than I anticipated but it is not a political argument about the date of the poll. It is a technical one, which says that if the polls fall on the same date—it is still the Government’s intention that we should achieve that on 5 May—it is in the interests of those who would take part, not least those who are administering it, such as the returning officers, that the situation should be simplified as far as possible. I recall a Question in the House, asked by the noble Lord, Lord McAvoy, in July, about a letter from the convenor for the Interim Electoral Management Board for Scotland. He asked formally for the polls to be combined if the election and the referendum took place on the same day. This is our response to the spirit of that request.

No doubt we will come back to this if issues are raised by the noble and learned Lord, Lord Falconer, but I hope the noble Lord, Lord Foulkes, will appreciate that, whatever the political argument—there has been plenty of political debate—the technical argument means that it makes much more sense to combine the polls, as proposed in this clause. His amendment would have the rather unfortunate effect of splitting them, should they take place on the same day.

[Lord Falconer of Thoroton]

It is important to see what Clause 4 says. That is why it is worth taking some time over these things. Clause 4(1) says:

“Where the date of … a local authority election … a local referendum”,

and,

“a mayoral election in England”,

is the same as that of a referendum, the polls can be combined. That does not commit the Government to having them on the same day. It is expressly conditional on their being on the same date.

The drafting of subsections (2), (3) and (4) is in different terms for reasons that are inexplicable, unless their purpose is to make it compulsory to have the polls on the same day. As far as that is concerned, although I completely accept that the Government intend that the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly should be able to exercise their powers to move the date, the fact that you have what appears on the face of it to be compulsion to hold the relevant polls on the same day appears to me, constitutionally, to lead to a situation whereby subsections (2), (3) and (4) would override the power of the Scottish Parliament to do that. The Government do not intend that outcome and therefore they should amend subsections (2), (3) and (4) to make them the same as subsection (1).

--- Later in debate ---

[Lord Falconer of Thoroton]

The American experience, which is part of the evidence relied on in these debates, suggests that in the polls in November, either in mid-term or general election years, the tendency of the public is not to focus on the proposition but to focus primarily on the people they are electing. In the coverage in November I did not spot the result of the proposition in California; all I spotted, which is where all the coverage was in America, was who was going to win in California. So the American experience tends to confirm what the Select Committee said—that the referendum question gets swamped in the question, for example, of who you want to be your Government in Scotland, Wales or Northern Ireland.

Why is it being done like this? Is it only to save money or are there other reasons? The amendment of the noble Lord, Lord Rooker, to which we have all agreed, has given the Government the opportunity to hold the referendum on a different day. In answer to my opposition to Clause 4 standing part, it is necessary for the Government to say why they think it is right that this critical question should be dealt with on a day when there are other polls; when it has never before been done in our history; when experience in other jurisdictions suggests that the referendum question gets swamped; when anyone who has any care for our constitution wants the result to be decisive. I do not want a situation where whichever Government are in power seek to change the electoral system; I want something that is settled as far as the people are concerned. That has always been the purpose of referenda in the past. Furthermore, quite separately from those points of principle, there is inevitably scope for confusion with so many elections going on with different electorates.

I shall listen very carefully to the noble and learned Lord, Lord Wallace of Tankerness, justifying why an issue as important as this is being dealt with in a way which seems to make it harder to come to a legitimate result than easier.

[Lord Wallace of Tankerness]

My Lords, as I indicated when I spoke earlier in dealing with these amendments, the nature of Clause 4 is of a technical combination; it is not one of the political arguments. The political argument was debated in this House quite thoroughly last Monday evening in Committee and, indeed, my noble friend Lord Strathclyde gave the answers to the questions of the noble and learned Lord, Lord Falconer. He may not have liked the answers, but that is a different matter. The House then came to a view and endorsed the argument put forward by my noble friend Lord Strathclyde. The amendment seeking not to have the referendum on 5 May—which I think was tabled by the noble Lord, Lord Foulkes; he will correct me if I am wrong—was defeated.

The purpose of Clause 4, as I have indicated, is of a technical nature. It ensures that if the polls take place on the same day they are combined. That makes good sense for the voter—who I hope is still the most important person in this—and it makes good sense for those administering the elections. The Opposition have acknowledged and conceded that that is the case and that the technical arguments are very strong.

The London mayoral referendum took place on the same day as London elections, so the idea that having a referendum on the same day as elections is unprecedented does not hold water. As that was brought forward by the party of the noble and learned Lord when it was in government, one assumes it thought that it was quite an important referendum. Given that we have had only one UK-wide referendum in our history, I do not think we can use it to set a precedent. As I said, the arguments on the politics have already been made in a previous debate. This is very much a debate on the technical nature of combination.

The reason why the terms are different in subsection (1) is that the elections to the Scottish Parliament, the Welsh National Assembly and the Northern Ireland Assembly are fixed by statute. The particular local elections are not necessarily fixed by statute, hence the different wording. The amendment of my noble friend Lord McNally has the same effect.

[Lord Falconer of Thoroton]

Why does the fact that it is fixed by statute but can be changed make a difference?

[Lord Wallace of Tankerness]

Sorry, I do not follow the noble and learned Lord’s point. In the Bill as it originally stood prior to any amendment, the date was to coincide with the statutory dates for the other elections—hence the wording of these proposals. My noble friend’s amendment makes provision that, if the referendum was not on the same day as a poll for the Scottish Parliament, the Welsh National Assembly or Northern Ireland Assembly, the relevant schedule will not apply and, therefore, they will not be combination. That is what this clause is about and what this amendment is about. I ask the noble Lord, Lord Foulkes, to withdraw his amendment, as it could have an unfortunate effect, which I am sure is not what he intends. I ask the Committee to support the clause, which is important from a technical point of view, not least in the interests of voters.

[Lord Foulkes of Cumnock]

This has been a very interesting and revealing debate. If noble Lords were not confused before they came into the Chamber, I am sure that they are now. My amendment would remove the subsection that says:

“The polls for the referendum and the Scottish parliamentary general election in 2011 are to be taken together”.

Nothing could be clearer than that, could it? Then we have the amendment, which the noble Lord, Lord McNally, tabled in a panic, because of something that happened on Report elsewhere. It refers to a circumstance “if” they are,

“not held on the same day”.

Which takes precedence? Surely saying that they are to be taken together means that they are to be taken together. Nothing could be clearer than that. Even the noble and learned Lord, Lord Mackay of Clashfern, the former Lord Chancellor, said that if that said that they were to be taken together, they were to be taken together.

Scottish Parliament (Elections etc.) Order 2010

Lord Wallace of Tankerness Excerpts

Thursday 9th December 2010 Lords Chamber

Moved By

[Lord Wallace of Tankerness]

That the draft order laid before the House on 25 October be approved. 6th Report from the Joint Committee on Statutory Instruments

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

My Lords, the draft order consolidates the rules for the conduct of the Scottish Parliament elections and ensures that the accepted recommendations from the Gould report will apply for the May 2011 election. The draft order has been available to electoral administrators and political parties since it was laid in Parliament on 25 October, more than six months ahead of the 2011 election. Indeed, an earlier version of the draft order was circulated to electoral administrators in April and to political parties in June. Most of us in this House who are still here will recall that more than 180,000 votes were lost due to rejected ballot papers in the 2007 Scottish parliamentary and local government elections. It was agreed across the parties that that is totally unacceptable in a modern democracy and, understandably, there was widespread public outrage at the time.

Mr Ron Gould, who was commissioned by the Electoral Commission to review the 2007 Scottish elections, concluded that six main factors contributed to confusion and to the level of rejected papers. First, he identified many problems on the design of ballot papers. Secondly, a new proportional voting system for local government elections had been introduced and voters were confused by combined elections that used two different electoral systems. Thirdly, there was poor co-ordination of the publicity campaigns of the Electoral Commission, the Scottish Government and others. Fourthly, Mr Gould identified problems caused by electronic counting. Fifthly, he found that there was fragmented and late legislation and a lack of involvement from electoral administrators in the legislative process. Sixthly, he said that there was a lack of co-ordination within the electoral community and a fragmented approach to planning.

There is no doubt that public confidence needed to be repaired after the problems experienced in 2007, but I believe that a successfully administered UK general election in Scotland earlier this year will have gone some way towards doing that. I am pleased to say that the Scotland Office has continued the work started by the previous Administration on implementing those Gould recommendations that were accepted by the Government at the time.

In relation to Gould’s recommendation that there should be a six-month cut-off period for changes in the law governing the conduct of elections, we have made sure that electoral administrators and political parties are well versed in the changes to legislation well in advance of May 2011. The target date of 5 November for making the order was always going to be challenging for whichever party won the recent general election. However, the projected date for making the order is still considerably earlier than at the previous Scottish Parliament election, for which the relevant order was made less than two months before the poll.

The draft order applies to next year’s election the Gould and Scottish Affairs Committee recommendations that were accepted by the previous Government. I accept that the draft order is large, so I will focus on the main changes since 2007. However, before doing so, I want to refer to a correction slip that Members may have seen associated with the order. The correction slip makes a number of typographical corrections to the instrument that will become part of the final order for printing if it is approved by Parliament.

It is also appropriate to comment on the four points on the order raised by the Joint Committee on Statutory Instruments. Article 2 defines “European Parliamentary Election”, although that term is not used in the text of the order. Rule 20(3)(a) in Schedule 2 includes within the minor errors in nomination papers that returning officers can correct,

“errors as to a person’s electoral number”.

However, unlike the nomination papers for election to the other place, the nomination papers for Scottish parliamentary elections do not contain proposers’ electoral numbers, which renders the reference unnecessary. Both those errors, while regrettable, have no effect on the operation of the order. The Scotland Office will ensure that returning officers are aware that the reference to electoral numbers can safely be ignored and the unnecessary provisions will be removed at the first suitable opportunity to amend the order.

The committee also highlighted Article 3(1), which deals with disregarding late alterations to the register of electors, and Article 4(5), which deals with the effect of alterations to the register where there has been an appeal against a registration officer’s decision. Those provisions have been in substantially similar form in previous versions of the order since 2002 and, so far as I am aware, have not prejudiced voters or the effective administration of previous elections. On reviewing the articles in light of the committee’s comments, we are of the view that there is an overlap with the provisions of the Representation of the People Act 1983 that renders them largely unnecessary. Unfortunately, those points were not raised until after the draft order had been considered by the Electoral Commission and had been laid.

We propose proceeding with the order in its current form and will revisit the provisions once we have had the benefit of consultation with the Electoral Commission and other interested parties. Since the equivalent provisions in previous orders have apparently not caused difficulty for voters or electoral administrators at the elections in 2003 or 2007, we do not anticipate there being any difficulty with the provisions being made as drafted.

[Lord Browne of Ladyton]

I thank the noble Lord for giving way. Before he moves too far away from the issue of defective drafting, perhaps I may raise a point with him. As he knows, I lived through part of this process in government because I became Secretary of State after the 2007 election and received the Gould recommendations and the Electoral Commission report. I accept entirely what the Minister says about the errors having little, if any, effect. My concern is that, to others, such errors may appear to show a consistent inaccuracy in the machinery for dealing with these issues. The Minister will not be able to check this now, but I refer him to the observations of his right honourable friend Mr Alistair Carmichael, who was the shadow Secretary of State for Scotland when I reported to Parliament on the report. Mr Carmichael suggested that history revealed that the electoral machinery that was servicing elections in Scotland was not fit for purpose. I am concerned that dismissing these errors in this way does not draw Ministers' attention to what may be a fundamental systemic problem in the machinery that is in danger of repeating the previous problem.

[Lord Wallace of Tankerness]

I hear what the noble Lord says. I could not quite remember where he was in the chronology of the Gould report, but he has now confirmed that he was the Secretary of State who received the report. The point that he makes is perfectly fair. However, the errors were spotted only very late in the day and have been drawn to the attention of the Joint Committee on Statutory Instruments. They were not spotted by the Electoral Commission when it looked at the draft order, nor by the electoral officers to whom the drafts were sent out, either on this occasion or on two previous occasions. That does not excuse the fact that the errors are regrettable and must be looked at. The point is fairly made that perhaps such errors flag up the need to have a thorough-going review of the orders. That said, as the noble Lord acknowledged in his intervention, there is nothing in the draft order that should impair in any way the operation of the elections in May next year. As I have indicated, we will draw the matter to the attention of the Electoral Commission for further consideration. Indeed, I think it has been suggested that the orders could possibly have been withdrawn and relaid. However, given the statutory obligation to consult the Electoral Commission, timing was one of the key issues that Mr Gould’s report flagged up. Therefore, it is important that we proceed with the draft order, while acknowledging, with regret, the errors that exist.

I turn to the substance of the draft order. The draft order consolidates legislation on the conduct of Scottish Parliament elections, so that the majority of rules governing those elections are now in one document, which we hope will make it easier for electoral administrators and political parties to use. The draft order sets out for the 2011 elections that we will return to a manual count of ballot papers for both the Scottish Parliament constituency and regional elections. There will be separate ballot papers for the constituency and regional votes, unlike in 2007, when both the constituency and regional votes were on a single ballot paper. Registered party names must be used on ballot papers and the design of the ballot paper follows the principles set out in the Electoral Commission’s publication Making your mark—Good practice for designing voter materials: guidance for government policy-makers.

There will be a longer timetable for running the election—increased from 21 days to 28 days—and, to accommodate administrative demands of increased postal voting, there will be a longer period between the close of nominations and the date of election, with an increase from 16 days before the poll to 23 days. The deadline for registering to vote by post and the earliest time that postal votes can be issued is still 11 days before the poll. The longer period between close of nominations and the date of election will help to accommodate the increased demand to vote by post. Once all the names of all the candidates are known, ballot papers can be printed without any further delays and sent out immediately after the deadline for registering for a postal vote has passed. For consistency, we have brought the control of donations to candidates and limits on candidates’ expenditure into line with the principles set out in the Westminster rules.

Apart from the consolidation of the 2008 and 2009 amendments to the 2007 order, the main new changes that have been made are: new requirements for the review of polling districts and places; the application to candidates at Scottish parliamentary elections, other than party list candidates, of the regime for control of donations to candidates that applies to UK parliamentary elections; limits to the expenses that may be incurred by or on behalf of candidates, other than party list candidates, in the pre-candidacy or so-called long campaign period before a Scottish parliamentary general election; revised requirements for candidates’ returns as to election expenses; revised requirements for the information that has to appear on election publications; an increase in the minimum period between the dissolution of the Scottish Parliament and the day of poll from 21 days to 28 days, which reflects the increase in the overall timetable for Scottish Parliament elections recommended in the Gould report; and provision for electoral registration officers to supply returning officers and other persons or organisations with a consolidated version of the register that takes account of any alterations, as opposed to having to provide a copy of the original register and individual copies of the notices of alteration. There is no longer to be a separate timetable for by-elections.

In addition, the draft order provides for: minor errors on nomination forms to be corrected by either the constituency or regional returning officer; grandparents or grandchildren to assist a person with disabilities to vote at a polling station; a requirement on the voter to sign the tendered votes list; the responsibility for the storage of election documents to be transferred from sheriff clerks to constituency returning officers. The provisions on the death of a candidate during the election period have also been revised. Changes have been made to what information on Members should be entered in the Scottish Parliament’s returns book and to restrict the availability of the returns book for public inspection to the life of the Parliament or to such later date as the Presiding Officer of the Scottish Parliament may direct. The electoral registration officer is now required to inform people that they have been appointed as a proxy and of the length of their appointment.

The draft order provides for limited access to, and for the supply of copies of, absent voting records, such as the postal voters list, for candidates, political parties and elected representatives as well as for public inspection of those records under supervision. The draft order allows the returning officer to determine which of a candidate’s proposed agents are to be appointed for the purpose of attending the postal voting proceedings if the list submitted by the candidate contains more names than authorised by the returning officer.

As Members of your Lordships’ House know, the Government wish to proceed with the referendum on the UK general election voting system on 5 May next year. The Bill dealing with that is currently under consideration in your Lordships’ House—indeed a number of noble Lords have participated in those debates. On Monday, your Lordships’ House rejected an amendment that would have prevented the referendum poll from taking place on 5 May 2011, when the elections are scheduled.

In closing my introductory remarks, I wish to make reference to the Scotland Bill, which signals the Government’s commitment to implement the proposals contained in the Calman Commission on Scottish Devolution, including the recommendation to devolve responsibility for the administration of elections. Indeed, no doubt the comments made by the noble Lord, Lord Browne, will be taken into account by those who administer elections in the future. The Scotland Bill was introduced in the House of Commons on 30 November, but it is clear that the Bill will not receive Royal Assent ahead of the May 2011 elections.

Of course, not all of Ron Gould’s recommendations were for the United Kingdom Government to act on; some of them were for the Scottish Government, the Electoral Commission or, indeed, for electoral administrators to implement. I hope that this House is reassured that the draft order will ensure that we take the necessary steps recommended by Ron Gould—accepted and adopted by the previous Administration and incorporated into the draft order—and ensure a successful election in May 2011. I commend the order to the House.

[Lord Browne of Ladyton]

My Lords, I support and welcome this order, despite the defects. I am grateful to the Joint Committee on Statutory Instruments for its sixth report and the work it has done in identifying these defects. Together with other Members of your Lordships’ House, I received a letter from a man who has been described in the other place as an SNP lawyer. It contains a briefing that sets out a number of points relating to drafting in areas where this order could be improved. I do not support the general thrust of the argument that we should have taken this opportunity to go beyond consolidation of the legislation and gone into substantial revision in interpreting Mr Gould’s thinking and changing parts of the existing legislation. That would have involved the whole scope of consultation which was not possible in the time that was available. I am pleased that the coalition Government have continued the work that was started under the previous Government—and indeed that I started as Secretary of State. I welcomed Ron Gould’s recommendations in the main, although I did not welcome or accept all of them. I am pleased the coalition Government are setting about the painstaking and difficult work of implementing those recommendations.

I cannot avoid making one or two points because I think they have to be on the record. As I have said, I was the Secretary of State who received Mr Gould’s report via the Electoral Commission. I have to say that the environment in which that report was received was unedifying in many ways. Many people in Scottish politics were trying to avoid responsibility for what had happened in May 2007, and there was one particular pretty appalling attempt to load all the blame onto one individual. I will come back to that in a moment.

The Gould report, read properly, did not reflect well on Scottish political parties, or on the machinery that existed for conducting elections. It clearly was not able to accommodate the level of complexity that it had imposed upon itself by decisions and was not able to conduct the elections on the day—the joint elections with complicated ballot papers—in a way that ensured that everybody who turned up and properly presented themselves could vote. That was a collective failure, but there were many people who were scattering to the winds and re-writing history to avoid their responsibility for that time. However, problems in the machinery were identified, and I think that those problems were shared by all. I do not exclude the Electoral Commission or any of the other organisations, individual returning officers or some local authorities; everybody bore a share of that responsibility.

--- Later in debate ---

[Lord Davidson of Glen Clova]

That is certainly an ambition that I would applaud. It is the execution with which I perhaps have a degree of concern. When one has seen what has been done with the Explanatory Memorandum, even a short guide for the increase of understanding by ordinary lay people would help. It is a matter on which we will never know the answer, I suspect.

In conclusion, despite the points that I have made in relation to the matter so far, I welcome the useful changes that have been produced by the order, which should enable a more rational, modernised election process in Scotland.

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have participated in this debate, notwithstanding some of their criticisms about the technical details and some of the content of the order. Nevertheless, they have welcomed the generality of the order and indicated their support for it. I shall try to deal with a number of the important, serious and constructive points that have been made, which merit a response. First, I will deal with perhaps the politically more controversial part—the elections being held on the same day as the proposed date of the referendum on the voting system to be used for the other place. The noble Lord, Lord Browne of Ladyton, indicated that Mr Ron Gould, in his submission to a Select Committee in the other place, had made comments on this; and I accept that he expressed a preference for separate dates. However, it is important to put on the record that he said:

“The marking of yes or no on a referendum ballot is much easier to understand and carry out than the requirements of marking an STV ballot”,

which, of course, was the other ballot paper that voters had to fill in for the election in 2007. He went on to say that there were benefits to combination with reduced and higher turnout. He specifically said,

“I do not believe that the same factors which led to voter confusion and the large number of rejected ballots at the last Scottish Parliamentary and Municipal elections would arise if both the Parliamentary Election and the Referendum were held on the same date”.

[Lord Browne of Ladyton]

My Lords, I am significantly disappointed in the Minister, because I set exactly for him where the trap was and he walked right into it. In my view, it is entirely inappropriate to edit this man’s words. They have to be read in their entirety. The debate about his recommendations was bedevilled by the editing of his words, sometimes down to parts of paragraphs in order to make points. This man is an expert. He reported in full. He wrote a memorandum, every word of which I am sure he pored over, to the Scottish Affairs Select Committee. In the sentence immediately before the one that the noble and learned Lord chose to read, he clearly made the point that if a referendum was conducted at the same time as an election, it would overshadow the election, and that would not be an appropriate thing to do.

That is the argument that I make. Of course it is possible to conduct these two mechanisms at the same time. Of course it is possible for Scots to get their brains around putting Xs on different bits of paper in the right order. The point that he makes, which is consistently ignored, is one that has been made repeatedly to this coalition Government: they are doing a disservice to the Scottish Parliament, to the Scottish people and to their election by creating an environment in which another issue will overshadow that election. That is the point that he makes and the one that needs to be addressed.

[Lord Wallace of Tankerness]

I do not think that I walked into any trap; I acknowledged that Mr Gould had said that he would prefer a separate date.

I ask the noble Lord to reflect that the first election to the Scottish Parliament in 1999 was held just a matter of weeks after the NATO engagement in Kosovo. That issue dominated much of the election period. Indeed, he will no doubt recall the leader of the Scottish National Party starting the election campaign by saying that it was error of some proportion—I think he said that it was an unpardonable folly. That was a huge issue that dominated the news, but no one suggested at the time that it detracted from the proper discussion and debate about the issues that the new Scottish Parliament was going to debate.

The noble Lord will also recall that in 2003, some six weeks before the election, under the leadership of his right honourable friend Mr Tony Blair, this country invaded Iraq. The noble Lord supported it; I did not. Nevertheless, it was an issue of considerable importance—neither of us would disagree with that. The whole invasion campaign dominated the period of the Scottish election campaign. I do not think that anyone suggested that debates on the issues that the Scottish Parliament was responsible for, be that health, education, transport or local government, were in any way impeded and that politicians did not engage in those debates as they went to the hustings in the May 2003 election.

I suspect that, by comparison, however important we may think a referendum on the alternative vote system for the House of Commons is, in my view that does not compare in gravity with the invasion of Iraq. I have no doubt that when it comes to the lead-up to the election, the people of Scotland will be able to distinguish clearly between the issues involved in the election of Members to the Scottish Parliament and the issue that they will be asked to address of how the other place should be elected in future.

The noble Lord seemed to suggest in his remarks that it was a constitutional outrage to link two polling opportunities together. He will no doubt recall, or maybe he does not, that in May 1998 the Government, of which I suspect he was not a member then but was subsequently a member, actually combined the referendum on the London mayor with the London local elections. I look back and consider that the general election of 2001 was linked to the local elections; indeed, they were both moved—at least, the local elections were moved and the general election piggybacked them—to June 2001 because of foot and mouth disease.

I think that I am right in saying that in 2009 the Government of which the noble Lord had recently ceased to be a member moved the local elections to coincide with the European election, and that the right honourable gentleman Gordon Brown was quite happy this year to combine the general election with the English elections that were already taking place. The combination of elections is not exactly unprecedented; there has been quite a lot of it in recent times.

[Lord Davidson of Glen Clova]

While it is always fascinating to have a lengthy analysis of many things that have nothing whatever to do with the Scottish parliamentary elections, I remind the Minister, if he is going to continue with this theme for many more minutes, that the Gould report dealt with the point that if one has two particular votes being made at the same time, the concern is that there would be a dominance of one campaign by the other. He considered that it was wholly inappropriate to have the Scottish parliamentary contest potentially dominated by another election or vice versa, as I indicated earlier. If the Minister might answer that particular point as opposed to proceeding with his historical analysis, we might gain some light on the matter.

[Lord Wallace of Tankerness]

The only reason I proceeded with an historical analysis was that the noble and learned Lord’s noble friend said that it was “almost unprecedented”. I was identifying a number of occasions on which it had happened, under the auspices of the Government of which both noble Lords were, at some time, members.

[Lord Browne of Ladyton]

The coincidence of elections with foot and mouth, or with events such as conflicts, may be things we have to live through. I understand all that. I will not rehearse a speech I made at a Committee stage; the Minister was in the House when I made it. My point then was that I concede that there are, in some circumstances, arguments for what I call analogous elections, where the same parties are competing broadly over the same body of policies, either at local, regional, mayoral or national elections. There is some argument for combining them. My point, which I thought he understood, was that there is a strong body of academic, analytic and political opinion that says, “To conduct a referendum, which because of the nature of a referendum involves cross-party working and confusion, potentially against a background of party-political politics, with a party-political contest, is designed to confuse”. My point in the other debate, which I will allude to briefly, was that, particularly in Scotland, where our media is and will be dominated by arguments from London, this will do an extraordinary disservice to the Scottish people and the Scottish Parliament. Of all Members of this House, the Minister, having been a Member of that Parliament, and knowing how much it is valued by the people of Scotland, should recognise that. He should have listened to that Parliament’s view.

[Lord Wallace of Tankerness]

I am not sure about the confluence of interests between a European election and local elections; they are somewhat far apart. However, I take the noble Lord’s views that referendums are somewhat different. Of course, he will no doubt give us an explanation of why the Government in which he served brought together a referendum with local elections in 1998.

On what the noble and learned Lord, Lord Davidson, said, I indicated in my earlier remarks to the noble Lord, Lord Browne, that I have fought two elections to the Scottish Parliament in 1999 and 2003, both against the backdrop of war. It did not impede the people of Scotland from being able to address and identify what the issues were in the election. The fact that there is a concurrent referendum campaign in May next year will in no way impede them from evaluating from what the parties are putting before them—nor, indeed, from making up their own minds as to whether they wish the alternative vote system to be used for future elections to the other place or not.

I fully understand the absence of the noble Lord, Lord Foulkes of Cumnock, as I am sure that he wishes to be in the Scottish Parliament today to express his support for the Scotland Bill. He has amendments tabled for later stages in Committee on the Parliamentary Voting System and Constituencies Bill, and I rather suspect that this argument has got some way to go yet.

On the timing, the order will not be made until within six months. Nevertheless, the order was also laid within the six months. Subject to the typographical errors in the draft, it will be the same order that had been laid and circulated to political parties, returning officers and electoral administration officers. Therefore, while the form did not meet the six months, the substance certainly did. I hope that noble Lords will accept that. The timetable was set in motion by the previous Administration. I have no criticism of that, but it was always going to be very tight.

National Assembly for Wales (Representation of the People) (Amendment) Order 2010

Lord Wallace of Tankerness Excerpts

Wednesday 1st December 2010 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That the draft order laid before the House on 25 October be approved.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

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

My Lords, this draft order makes a number of modest policy and technical changes to the National Assembly for Wales (Representation of the People) Order 2007. The 2007 order makes provision for the conduct of elections to the National Assembly for Wales and was made under the powers in the Government of Wales Acts 1998 and 2006. It also comprehensively reflects changes made to electoral law since the previous order in 2003 and, in particular, by the Electoral Administration Act 2006.

While this draft order only numbers some 10 pages, the 2007 order runs to some 273 pages in total, so I do not intend to speak in any great detail about its contents. I do intend, however, to outline the main changes that will be made to it by the amending order before the House this evening.

Article 3 amends the definitions of Assembly constituency, Assembly electoral region and elector in the 2007 order to ensure that they are consistent with the Government of Wales Act 2006. The relevant provisions in the Government of Wales Act 2006 did not commence until after the 2007 order was made. The definition of elector also reflects changes to the Representation of the People Act 1983, which were made by the Electoral Administration Act 2006. This includes references to anonymous voters.

Article 4 makes amendments relating to registration appeals, where decisions on appeals about entries in the register in respect of postal votes are determined before the election. These decisions will now take effect and the register altered. The article also clarifies the relevant provisions under which an appeal can be made and a notice of alteration issued. Article 5 makes an important change to the 2007 order, under which the election agent for a candidate who stands in an Assembly regional election must have an office in that region.

A number of political parties raised concerns about this requirement during the 2007 elections, as a political party might wish to appoint only one election agent to represent all the regional candidates for that party in an Assembly election. The previous provision, which required the election agent to have an office in the region, prevented them from doing so. Following a recommendation by the Electoral Commission, made after the 2007 Assembly election, this requirement is being relaxed so that an agent’s office must be located within Wales.

Articles 6 and 7 make minor changes to the 2007 order that reflect changes made by the Legal Services Act 2007. If a legal professional is found guilty of a corrupt practice during an election campaign, an election court must inform bodies capable of exercising regulatory functions over the legal profession. Article 6 expands the definition of these bodies. Article 7 amends the relevant part of the 2007 order which expands the definition of who the Director of Public Prosecutions may send as his representative to attend election courts.

Articles 8 and 9 amend references in Schedules 1 and 3 of the 2007 order respectively which we subsequently found to be incorrect. Article 10 makes perhaps the most substantive change to the 2007 order by changing the design of the constituency and regional ballot papers. In October 2009, the Electoral Commission published its guidance on designing voter materials, Making Your Mark. This guidance highlights best practice when designing voter materials, such as ballot papers, to ensure that they are as accessible and intelligible as possible for voters. It is clearly in the interests of democracy that every eligible elector is able to participate in elections and that the voting process is as clear and simple as it can be. In designing the new ballot papers, we have worked closely with the Electoral Commission to ensure that we adhere to the spirit and the letter of the guidance. Apart from the design, the key change is the removal of the names of those on the party list from the regional ballot paper. Noble Lords will wish to know that this also occurs in Scotland.

Noble Lords will know that the Parliamentary Voting System and Constituencies Bill before this House provides for the referendum on the alternative vote system for electing Members to the other place to be combined with the elections to the National Assembly on 5 May next year. The provisions within this draft order are not affected by the combination provisions.

The Government and the Welsh Assembly Government are committed to working together to ensure that the polls next May are a success. Jenny Watson, chair of the Electoral Commission and chief counting officer for the alternative vote referendum, who will have the lead role in the combined polls, said last month that the commission believed that,

“enough progress has been made … to allow the National Assembly elections and referendum on 5 May to run smoothly”.

In conclusion, in preparing this order, the Wales Office has worked closely with electoral administrators, including the regional returning officer for Wales, the Electoral Commission, the Welsh Assembly Government and the four major political parties in Wales. I commend the order to the House.

--- Later in debate ---

[Lord German]

My Lords, perhaps I may make a short intervention in support of my noble friend Lord Roberts of Llandudno on the issue of the regional ballot paper. It will give me the opportunity also to answer one of the points raised by the noble Lord, Lord Elystan-Morgan, about the coincidence of elections. It is incidental to the order, but I cannot resist the opportunity of answering that point.

There is a long and noble tradition in our electoral system of people being able to vote for people. If I have to look at the wall of a polling station to find out who will be elected if I put my vote against a party’s name, it is not quite the same as having the name there on the ballot paper. I understand the point about numbers, but only four people can be elected from the regional lists for any constituency in Wales. If the top four names for each of the parties are given, people will be able to say, “If I am voting for this party, I am voting for these four people in this order”. It will be quite clearly laid out on the ballot paper. I therefore ask my noble friend the Minister to consider this matter and see whether it chimes with political parties and the Electoral Commission for the elections next year.

On the coincidence of elections, we now have four elections in Wales: a European election, a National Assembly election, local council elections and elections for the other place. After the Bill passes, as we assume it will, there will be two five-year terms, for the European elections and the elections to the other place, and two four-year terms, for local authority and National Assembly elections. The National Assembly has previously moved elections for local government so that they do not coincide. The one, obvious way out of this difficulty whereby elections might clash on any number of occasions in the future—just as local elections and National Assembly elections would have clashed in the past—is to make all elections have five-year terms. We have two elections with fixed terms, European and Westminster; it seems that we should do the same for National Assembly and local elections.

These are personal views. I am testing them on this House so that people might consider them as a way out of the confusion created by having two sets of elections occurring at different intervals. Those of your Lordships who are good at mathematics will know that, if you have two fives and two fours, the fives and the fours will eventually clash. If it is logical to have fixed-term Parliaments for Europe and for the other place, it might be logical also for the National Assembly and local councils. If the logic is that fixed terms give you more time to make your programme of government work, that logic can be applied also to the National Assembly and local government.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Baroness and the noble Lords who have contributed to this debate. I am grateful for the general welcome that has been given to the order. I noted that the noble Lord, Lord Elystan-Morgan, rehearsed his speech for the debate that we will undoubtedly have during the passage of the Parliamentary Voting System and Constituencies Bill. I rather suspect that it will fall to me to answer that part of the Bill. At least I am well prepared by knowing from where the attack will come, and I can expect it also from the noble Lord, Lord Jones.

There will undoubtedly be an opportunity to consider the coincidence of elections when we come to debate the Fixed-Term Parliaments Bill—I hear the point made by my noble friend Lord German. The noble Lord, Lord Elystan-Morgan, and the House will perhaps be reassured to hear that the Government are aware of the concerns that have been expressed in some quarters about the coincidence of polling dates in 2015. They are consulting the Welsh Assembly Government, all political parties represented in the Assembly and representatives of the Assembly itself on options for moving the date of elections to the devolved legislature—a similar consultation is taking place also in Scotland and Northern Ireland. We will decide whether further legislation is needed in the light of the consultation.

The two issues of concern to my noble friend Lord Roberts of Llandudno related to the location of the agent’s office and the names on the ballot paper, which my noble friend Lord German mentioned as well. The relaxation of the rules for agents is only for the regional election. The order states that the office must be “in Wales”. It could be in the respective regions, given that they are all in Wales. Only if political parties choose to have one agent for every regional election will it now be possible for an office not to be in every region. That arose during the 2007 election and has been taken forward. No party has objected to the change. I remind my noble friend that this rule applies to the agent’s office and not to the candidate’s offices. Candidates will still have offices in the respective Assembly constituencies. I hope that that gives some reassurance to my noble friend, who I know will engage in the electoral battles with the same gusto as I have seen from him over many years.

It shows just how much attention I pay that I had thought that names had been on the regional list for the previous Scottish elections; I am told that they were not, that that already is the case in Scotland. Such was my enthusiasm to vote for Scottish Liberal Democrats, I did not pause to notice whether the names were there or not. The names of the candidates will be displayed in the polling stations. My noble friend asked whether it would be possible to amend or reduce the number of names to four. That could happen only with the agreement of all the political parties that would be putting up more than four candidates; and although that agreement has been sought, it has not been forthcoming. It could be done by primary legislation, but clearly there will not be an opportunity for primary legislation between now and the elections.

The Government did give careful thought, and did consult the main political parties in Wales, before deciding which was the appropriate way to go forward. In the regional elections voters cast their votes predominantly on the basis of party affiliation rather than individual candidates, although independents can of course stand; and we believe that the change will help ensure that ballot papers do not become unduly unwieldy if all the names are on them. I am advised that representatives of Plaid Cymru and the Welsh Labour Party agreed the proposal, while the Welsh Liberal Democrats did not object. No comments were received from the Welsh Conservative Party, although it was circulated with it. The change is strongly supported by the Electoral Commission and by the representatives of the Association of Electoral Administrators in Wales, including the regional returning officer for Wales.

After every election there is a wash-up by the Electoral Commission. No doubt in May next year, this may be something that the respective political parties may wish to reflect on with the Electoral Commission in the light of that experience.

With regard to the sample names that have been mentioned, I had noted—the noble Lord, Lord Jones, beat me to it—that the candidate on the constituency ballot paper representing the farmers of Wales was Sarah Gale. I am not sure of the Welsh origin, if there is any Welsh origin, of the name which the noble Baroness is no doubt proud—

[Lord Elystan-Morgan]

What struck me was not the name of the candidate but the bovine that represented the logo. It was not a Welsh black, it was a Friesian.

[Lord Wallace of Tankerness]

Even more damning, I suspect. I rather suspect that the names were put there to be neutral. I only conclude on this point by noting that in the regional ballot paper, where there is one independent named, he goes under the name of Xavier Alfonso. I may be wrong, but it does not sound like the name of a boy from the valleys to me.

In conclusion, the noble Lord, Lord Elystan-Morgan, said that this was perhaps a unique moment given that all sides were applauding a particular order; and the noble Baroness, Lady Gale, commended the order for its evidence base, for being practical and for being sensible. I think there is general agreement. I have no doubt that when the time comes, the respective parties will engage in electoral combat with great passion, but no matter which party we belong to—or none—it is in all our interests that these elections are conducted effectively and efficiently, and I believe that with this order, we put in place the machinery for doing so. I commend the order to the House.

Motion agreed.

National Assembly for Wales Referendum (Assembly Act Provisions) (Referendum Question, Date of Referendum Etc.) Order 2010

Lord Wallace of Tankerness Excerpts

Thursday 25th November 2010 Lords Chamber

Moved By

[Lord Wallace of Tankerness]

That the draft Order laid before the House on 21 October be approved.

Relevant documents: 5th Report from the Joint Committee on Statutory Instruments.

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

My Lords, for convenience I shall refer to the National Assembly for Wales (Legislative Competence) (Amendment of Schedule 7 to the Government of Wales Act 2006) Order 2010 as the Schedule 7 order; the draft National Assembly for Wales Referendum (Assembly Act Provisions) (Referendum Question, Date of Referendum Etc.) Order 2010 as the referendum order; and the draft National Assembly for Wales Referendum (Assembly Act Provisions) (Limit on Referendum Expenses Etc.) Order 2010 as the expenses order.

The draft referendum and expenses orders make arrangements for a referendum to be held in Wales on further law-making powers for the National Assembly for Wales, and the draft Schedule 7 amendment order makes changes to Schedule 7 to the Government of Wales Act 2006, which sets out the subjects on which the Assembly could legislate following a yes vote in a referendum.

The circumstances in which a referendum can be called, and the parameters of the referendum question, have been prescribed in legislation already passed by Parliament—the Government of Wales Act 2006. That Act provides for primary law-making powers for the National Assembly for Wales in devolved areas of policy, if and when the people of Wales decide in a referendum that that is what they want.

On 9 February this year, the National Assembly unanimously passed a resolution calling for a referendum in Wales. When the First Minister wrote to the previous Secretary of State on 17 February giving formal notice of the Assembly’s resolution, he triggered the process under the Government of Wales Act 2006 which meant that the Secretary of State had 120 days from the day after receipt of the notification either to lay the draft referendum order or set out the reasons for not doing so.

Following the general election, it fell to my right honourable friend the Secretary of State for Wales to respond to the Assembly’s call within the statutory deadline. This she did on 15 June, confirming that she would lay a draft referendum order as soon as practicable and, as agreed with the First Minister, work towards a referendum in the first quarter of 2011.

The coalition Government have taken seriously our commitment to hold a referendum. Since we have been in office, we have driven forward working with the Welsh Assembly Government and other key stakeholders to ensure that we would deliver on that commitment. There has been good co-operation, showing that the respect agenda continues to work well.

First, I should like to explain the rationale for bringing forward the draft Schedule 7 amendment order, which, I think it is fair to say, is the most technical of the three draft orders before the House this afternoon. Schedule 7 to the Government of Wales Act 2006 sets out the subjects on which the Assembly could legislate following an affirmative vote in a referendum on full law-making powers and the Assembly voting to commence the provisions in Part 4 of the Government of Wales Act 2006. The subjects cover a broad range of areas over which the Welsh Ministers currently exercise executive functions, including housing, planning, local government and the environment.

Schedule 7 also lists exceptions and general restrictions to the Assembly’s legislative competence. Subjects such as economic policy and social security would remain non-devolved in the event of the schedule coming into force. The Assembly’s current powers to legislate are set out in Schedule 5 to the Government of Wales Act 2006. The schedule lists these powers as “matters” under 20 fields, which correspond to the subject areas in Schedule 7. Matters have been added to Schedule 5 incrementally in recent years by legislative competence orders—LCOs—and framework powers in Acts of Parliament. The effect of this devolution of powers is that the Assembly can now legislate in relatively specific areas in many of the fields listed in the schedule, but its current powers to legislate are narrow when compared with the range of subjects which would be devolved in the event of a yes vote in the referendum. However, some of the amendments which have been made to Schedule 5 enable the Assembly to legislate on specific issues which go beyond the competence in Schedule 7.

The last order updating Schedule 7 was made in 2007, and there is now a need to update the schedule in advance of the referendum to take account of the powers the Assembly has accrued in recent years. There are three main reasons for making the changes set out in the draft order: first, to make clear the full range of powers which would be devolved to the Assembly in the event of a yes vote; secondly, to ensure that the Assembly would not lose any of its current powers if Schedule 7 comes into force; and, thirdly, to ensure that exceptions to the Assembly’s legislative competence accurately reflect the boundaries of the Welsh devolution settlement.

Many of the changes to Schedule 7 made by the draft order insert powers the Assembly currently exercises under Schedule 5. For example, it inserts a new subject on the provision of automatic fire-suppression systems in residential premises, to reflect a matter which is currently included in Schedule 5 and on which the Assembly is currently considering draft legislation. The draft order also amends subjects and exceptions in Schedule 7 to take account of the Assembly’s current powers in areas such as waste, educational transport, the protection and well-being of young adults, and trunk road charging schemes.

The draft order inserts a limited number of exceptions to the Assembly’s competence, where they relate very clearly to areas which would remain non-devolved following an affirmative vote in the referendum. It also makes some minor and drafting changes to simplify the schedule, update references to other legislation and rectify errors in the original drafting.

The Welsh Affairs Committee in the other place undertook scrutiny of the draft order. The committee concluded that the Government are right to ensure Schedule 7 is amended in advance of the referendum on full law-making powers for the Assembly.

The Government worked closely with the Welsh Assembly Government to agree to these changes. The draft order was approved by the National Assembly for Wales on 9 November and by the other place yesterday. The order makes sensible changes to Schedule 7 in advance of the referendum to ensure that the schedule accurately reflects the current Welsh devolution settlement.

I move on to the two other draft orders, which would make arrangements for a referendum to be held in Wales on further law-making powers for the National Assembly for Wales. The draft referendum order consists of 28 articles and six schedules and makes the bulk of the provision relating to the arrangements to hold a referendum on further powers for the National Assembly for Wales. Provisions contained in the 2006 Act and in the Political Parties, Elections and Referendums Act 2000 also apply to the referendum, but the draft referendum order is necessary to fill out the detail of the arrangements, including the key provisions on the date of the referendum and the referendum question.

The purpose of the draft expenses order is to specify the limits on spending by those campaigning for a particular outcome in the referendum. Both draft orders are subject to approval by both Houses of Parliament. The draft referendum order is an Order in Council which must also be approved by a majority of at least 40 Assembly Members before it can be recommended to Her Majesty in Council. The requisite approval was obtained in an Assembly debate on 9 November.

I turn first to the draft referendum order. The provision that has possibly attracted most attention to date, perhaps not surprisingly, is the referendum question and its preceding statement, as set out in Article 4. There was relative silence before the general election relating to the referendum question. Work had commenced on the drafting of the detailed provisions in the legal instruments. However, at the request of the First Minister, no work had taken place on the key provision within the draft order relating to the question. It is fair to record that in just five weeks following the general election, my right honourable friend the Secretary of State for Wales met her statutory obligations, as set out in the Government of Wales Act 2006, reached agreement with the First Minister and referred the question to the Electoral Commission on 23 June.

The commission required 10 weeks to assess the question and report to the Secretary of State. During that time, the commission conducted a thorough assessment of the preamble and question, including carrying out public opinion research, inviting and gathering views from interested parties, including political parties, and seeking advice on both the English and Welsh versions. The commission produced its report on 2 September and my right honourable friend the Secretary of State discussed the findings with the First Minister and the Deputy First Minister, agreed to the commission’s recommended revision of the question and its preamble, and confirmed the legality of the question as set out in the Government of Wales Act 2006. It is my understanding that the noble Lord, Lord Elis-Thomas, the Presiding Officer of the National Assembly for Wales, had also indicated his agreement to the decision to use the revised question.

Apart from the referendum question, the other aspect of the proposed referendum which has attracted attention is the date on which it is to be held. Article 3 provides for the referendum to be held on 3 March 2011. My right honourable friend the Secretary of State gave careful consideration as to the date of the referendum. The First Minister had made clear representations that he would not be in favour of holding the referendum on the same date as the Assembly elections and that he favoured a referendum in early spring. The coalition Government are committed to working with the Assembly Government in a spirit of mutual respect, and the Secretary of State was prepared to consider carefully any reasonable request from the First Minister in relation to the referendum date.

The Assembly Government had made a commitment to hold the referendum on or before the Assembly elections in May 2011. In October this year, the First Minister announced that his preferred date was 3 March and asked the Secretary of State to agree to this date. The Secretary of State considered the request and agreed that it was feasible to hold the referendum then. A yes or no vote on 3 March would provide certainty on the extent of the law-making powers available to the Assembly in advance of the Assembly elections on 5 May. It was also believed that a 3 March referendum would put enough distance between the campaigns for the referendum and for the Assembly elections to allow arrangements for both to be administered efficiently. My right honourable friend the Secretary of State for Wales considered that the request to hold the referendum separately was reasonable, and agreed to the date.

While the other provisions in the draft referendum order have not attracted much attention, they are none the less important, as they deal with how people can vote in the referendum, and set out the rules for how the referendum will be run by the chief counting officer and local counting officers.

I turn now to voting. All those registered to vote in the Assembly elections will be able to vote in the referendum. Schedules 1 and 2 make provision for absent voters—those who vote by post or by proxy—and for the issue and receipt of such ballot papers. These provisions are similar to those that apply for elections. With regard to the running of the referendum, the provisions relating to the chief counting officer, deputy chief counting officer and counting officers are relevant. The chief counting officer will be the chair of the Electoral Commission. Under Article 9, she must do all such acts and things as may be necessary for effectively conducting the referendum in the manner provided for in the draft order.

A counting officer will be appointed for each voting area in Wales, which will be the same as the local authority area. Under Article 11, the chief counting officer can direct counting officers on how they should discharge their functions relating to the referendum, or direct them to take specified steps to prepare for it. Counting officers must also conduct the referendum in accordance with the detailed rules set out in Schedule 3 to the draft order.

The timing of the count itself is not yet decided. The default position is that the count should take place as soon as reasonably practicable after the close of the poll. However, the chief counting officer may direct that the count should take place on the following day. The Electoral Commission has invited views from interested parties, including broadcasters, on when the count should take place. The commission has not yet announced its decision on the timing of the count, but will do so as soon as possible after taking account of all views submitted to them.

There are two further points relating to the draft referendum order that I will make briefly. The first relates to the costs of the referendum. While the costs of the Electoral Commission will be met by the coalition Government, all other costs will be met by the Welsh Assembly Government through the Welsh Consolidated Fund. The bulk of these costs are those of the local administration of the referendum by the counting officers. It will therefore be for Welsh Ministers to make an order dealing with the counting officers’ fees and charges, subject to the draft referendum order being approved and made by Her Majesty in Council.

Secondly, the commission’s report on the intelligibility of the question highlighted the low level of awareness in Wales of the proposed referendum and its subject matter. While of course it will be a matter for the yes and no campaigns to make the case for either vote, there is value in having available an independent and impartial source of information on the subject matter of the referendum. To this end, Article 16 of the draft order provides for the Electoral Commission to take such steps as it thinks appropriate to promote public awareness in Wales of the referendum, its subject matter and how to vote in it. The Government of Wales Act 2006 already gives powers to the Assembly Commission to promote awareness of the system of devolved government, and the commission has launched its Vote 2011 awareness campaign.

The expenses order is a short draft order that sets the spending limits for campaigners who have registered as permitted participants spending more than £10,000, and whose expenditure is therefore subject to regulation. My right honourable friend the Secretary of State for Wales consulted the Electoral Commission on what those limits should be, as she was required to do under the Political Parties, Elections and Referendums Act 2000. She accepted the recommendations, so the spending limits specified in the draft order are as recommended by the commission. Of course, they are set at a significantly lower level than the statutory limits set for a UK-wide referendum campaign. The 2000 Act provides a framework for the referendum and enables the Electoral Commission to ensure that it is run fairly. This draft order varies the time period for individuals and organisations to register with the Electoral Commission and apply to be the lead campaign organisation to campaign for either the yes or no vote by increasing the period to five weeks, taking account of the Christmas and new year holiday period.

This period will be followed by a further two weeks, during which the Electoral Commission will decide whether to appoint a lead organisation for each side. The remaining period of four weeks up to the poll will be for the campaign proper.

I emphasise that what we are talking about here are the limits imposed on spending by campaigners from their own funds, not the spending of public money.

Finally, the draft order makes it explicit that media coverage is not to be regarded as a referendum expense, and therefore broadcasters and newspapers need not register as permitted participants in the referendum in Wales.

I hope the House will agree that it is important that these draft orders are approved and that the people of Wales are given the opportunity to vote and have their say in the referendum next March. I commend them to the House.

[Baroness Gale]

My Lords, first, I thank the Minister for bringing these orders before us today and for his clear explanation of the quite technical but very important details.

These orders represent an important milestone on the long devolution road which I and many others have been travelling for a number of years. Therefore, I can say today that I am a very happy traveller, seeing us go one step further along that road.

However, even with a successful yes vote, it will probably not be the end of the journey. As the Welsh Affairs Committee in another place said in its report, published on 22 November, on Schedule 7:

“We note that the nature of the Welsh devolution settlement is quite different from those relating to Scotland and Northern Ireland. Schedule 7, in the form it would have after this draft Order was approved, is unlikely to be the last word on the shape and nature of the constitutional arrangements for Wales. We have sought and received assurances that Parliament and the Welsh Affairs Committee will be properly involved in the examination of any future changes to the constitutional arrangements for Wales”.

Following a successful yes vote on 3 March, we are sure to be asked to look at other constitutional matters regarding Wales in the future.

The question to be asked in the referendum, and its timing, have been debated and agreed by the Welsh Assembly, and prior to its drafting the question was subject to significant assessment and revision by the Electoral Commission, as the Minister said. This has now resulted in widespread agreement that the question on the ballot paper is clear and simple to understand.

The date of the referendum has now been agreed. After significant discussion in Wales, it will be held on 3 March 2011—a date that will take us clear of the campaigning period for the Welsh Assembly elections in May. There was concern over holding them on the same day, so it is very good that the referendum will be held on 3 March. However, there may of course be another referendum on the day of the Welsh elections after all.

The order relating to expenses did not need to be approved by the Welsh Assembly. However, it has been subject to scrutiny by the Electoral Commission, whose recommendations were accepted by the Secretary of State for Wales.

The formula for calculating the level of expenses based on the percentage of the vote for each political party is, again, simple and clear, as it is for other permitted participants. That is important as it will enable political parties and other organisations to know what the funding is, as well as ensure that the electorate is fully informed of both the yes and the no campaigns. I think that that information is really needed.

I also welcome the clarification on expenses relating to media coverage, which the Minister mentioned, as there has been some ambiguity about that in the past. It is now clear that such coverage is excluded from declared expenses. In the past, that has been a worry for political parties and those responsible for election returns.

On the order that deals with Schedule 7, if there is a successful yes vote, that part of the Act spells out the full range of subjects over which the Assembly has full legislative competence. The order under debate today is designed to secure that the amended Schedule 7 takes full account of all the changes to the powers of the Welsh Assembly that have been conferred on it by various means since the passing of the Government of Wales Act 2006. This will be a much more effective and less expensive way of legislating across the full extent of the devolved subject areas than the present system of legislative competence orders.

The All Wales Convention has concluded that the changes will save around £2 million per year, which is money that is currently being spent by the rather lengthy process of LCOs. More importantly, they will allow the Welsh Assembly Government to respond to changing circumstances that may require legislative action. I believe that the Welsh Assembly Government and the Assembly Members will be able to deal much more effectively and respond much better to the needs and requirements in the devolved areas, for the benefit of the Welsh people, than they can under the present system. As the Minister said, these three orders were agreed to in another place earlier this week, so agreeing to them today will enable the people of Wales to have their say on whether they want the National Assembly for Wales to have legislative powers in the 20 subject areas.

I am very pleased to support these orders on behalf of my party, as I have campaigned for devolution for many years; I played an active role in the 1997 successful referendum that brought devolution to Wales, and I saw the establishment of the National Assembly of Wales in 1999. Today is an historic day for Wales, and I am pleased to have played my part on behalf of my party, which first gave devolution to Wales. I thank the Minister once again for bringing these orders before us today.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, first, I thank the noble Baroness, Lady Gale, and my noble friend Lord German, for their contributions to this important debate. As the noble Baroness said, this is a milestone debate. I also thank them both for the positive support that they have given to these orders. That reflects the fact that whatever side people take in the referendum campaign—it is my recollection that there was unanimity in the National Assembly for Wales that the referendum should take place—it is important that the orders give substance to that aspiration.

My noble friend Lord German asked me some specific questions, which I will attempt to answer. With regard to whether the powers over signs and pedestrian crossings relate only to special roads, the answer is no. They relate to all roads because that is the current position in Schedule 7, and that will not be changed by the order.

With regard to energy generation, as has rightly been pointed out, electricity generation is specifically excepted from Schedule 5 and Schedule 7. The amendment order before us today does not change that. The Welsh Assembly Government have made regular representations to the United Kingdom Government in respect of the boundary to the Welsh settlement on energy generation. This Government have considered those representations carefully, but we do not propose to change the boundary in respect of energy generation at this time.

The noble Baroness and my noble friend talked about their experience as regards LCOs and framework powers. In my short period as spokesperson with responsibility for the Wales Office in this House, I recall debating in Grand Committee in the Moses Room the LCO on housing. I certainly became aware of the path that an LCO takes to reach the House for approval. It will remain to be seen, with the outcome of the referendum, whether that process will continue or whether it will require the co-determination to which my noble friend Lord German referred.

It is important to mark that, while we are amending Schedule 7 today, there is also a legislative proposal before the House for framework powers in relation to the National Audit Office for Wales and the Auditor-General for Wales. There are also two current LCOs on organ donation consent and on highways and transport for cycleways and walkways. It would be wrong today to anticipate what the progress of those LCOs will be, but it may be that Schedule 7 has not yet finished being amended. Nevertheless, I can reassure my noble friend Lord German that the provisions in the draft order amending Schedule 7 ensure that there will be no restriction on the current powers of the Assembly. There will be no loss of powers for the Assembly as a result of the order.

The noble Baroness and my noble friend both referred to this important milestone and the journey. They are in the slightly advantageous position of being able not only to vote—which, obviously, I will not be able to do—but to express their view on the outcome of the referendum. The position of the coalition Government is neutral on the outcome. Through these orders, we are facilitating the referendum. However, perhaps I may conclude by saying that, as a Scot who had the privilege of serving in the Scottish Parliament when it was first established again in 1999, it is a great privilege for me to be able to move these milestone orders. I ask the House to support them.

Motion agreed.

National Assembly for Wales Referendum (Assembly Act Provisions) (Limit on Referendum Expenses Etc.) Order 2010

Lord Wallace of Tankerness Excerpts

Thursday 25th November 2010 Lords Chamber

Moved By

[Lord Wallace of Tankerness]

That the draft Order laid before the House on 21 October be approved.

Relevant Document: 5th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

National Assembly for Wales (Legislative Competence) (Amendment of Schedule 7 to the Government of Wales Act 2006) Order 2010

Lord Wallace of Tankerness Excerpts

Thursday 25th November 2010 Lords Chamber

Moved By

[Lord Wallace of Tankerness]

That the draft Order laid before the House on 21 October be approved.

Relevant Document: 5th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Scottish Parliament (Constituencies and Regions) Order 2010

Lord Wallace of Tankerness Excerpts

Tuesday 26th October 2010 Lords Chamber

Moved By

[Lord Wallace of Tankerness]

To move that the draft order laid before the House on 1 July be approved.

Relevant Documents: First Report from the Joint Committee on Statutory Instruments.

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

My Lords, as many noble Lords may know, the Boundary Commission for Scotland completed its first review of Scottish Parliament boundaries, as required by the Scotland Act, earlier this year. The commission submitted its Report on the First Periodic Review of Scottish Parliament Boundaries to the Secretary of State for Scotland on 26 May 2010, and a copy was laid before the Scottish Parliament and this Parliament on the same day. The Boundary Commission’s report was accompanied by two DVD-ROMs containing geographical information system data defining the constituency boundaries. This is referred to as “the deposited data” in Article 2 of the order.

This approach was necessary because a number of the recommended Scottish Parliament constituencies have boundaries that do not follow existing local government ward boundaries. Previous constituencies were made up of complete local government wards, which are defined in existing legislation and therefore could be referred to by listing the ward names. The level of detail required to define the constituency boundaries meant that they could not practically be shown on traditional maps at an appropriate scale. The local government wards and part-wards that fall within the constituencies are listed in the appendices to the Boundary Commission’s report, and the master copies of the DVD-ROMs have been deposited with the Secretary of State for Scotland for safekeeping. Reference copies are deposited with the Boundary Commission for Scotland, and copies are also available in the Library of each House.

The Scotland Act also requires the Secretary of State to lay before Parliament, as soon as is practicable after receipt of the report, the draft of an Order in Council giving effect to the recommendations in the report. Such a draft was laid on 1 July. It was debated in the other place on 15 September and approved, and now comes before your Lordships’ House. Ministers readily acknowledge that there have been some concerns about some of the commission’s recommendations. These have been raised with Ministers, but I emphasise that they have no power to direct the Boundary Commission to change any of its recommendations or to amend any boundaries through the order. The Boundary Commission is an independent and impartial body, and its statutory consultation and local public inquiry process allowed for consideration of concerns and representations about its proposals made by politicians, local authorities and others. Final decisions on recommendations were ultimately a matter for the commission. Details of the consultation, and local inquiries and their outcomes, are included in the commission’s report.

As I explained earlier, the order gives effect, without modifications, to the recommendations contained in the commission’s report. It defines the name, status and area of 71 of the 73 parliamentary constituencies, and the name and area of each Scottish Parliament region. The Orkney Islands constituency, which for eight years I had the privilege to represent in the Scottish Parliament, and the Shetland Islands constituency, were excluded from the scope of the review because Schedule 1 to the Scotland Act provides for them directly. The order is required to be approved by both Houses before being made by Her Majesty in Council. Subject to it being approved and made, it will come into force on the day after it is made. At this stage, we envisage that being some time in November. The boundary changes will not affect the Scottish Parliament, or elections to the Scottish Parliament, until the next general election to the Parliament, whether that is an ordinary or extraordinary general election. Nor will they affect any by-election held before the dissolution of the Parliament.

The Scotland Office consulted electoral administrators and the Electoral Commission over the proposed timing of the Boundary Commission’s final report, and on the proposed timing of the commencement of the order. Following the consultation, administrators agreed to start the necessary preparatory work in advance of the legislation coming into force, given the proximity of the next general election to the Scottish Parliament in May next year. The Parliamentary Under-Secretary of State also wrote to the Scottish Government’s Minister for Parliamentary Business and the Presiding Officer of the Scottish Parliament, among others, in early July informing them of the proposed timing of the legislation.

The Scotland Office also consulted electoral administrators on the impact and risk of the boundary changes being applied to any extraordinary general election called between the legislation coming into force and 5 May 2011, and on the impact of having to run any by-elections between 1 December and 5 February, which is the latest that a by-election can be held, on old boundaries. Administrators supported running an extraordinary general election after 1 December on the basis of new boundaries. As for by-elections, their view was that this was a localised risk that could be managed, should the need occur.

It will of course be our intention to keep all interested parties informed of the proposed timing of the commencement of the legislation and, subject to the order being approved and made, the Scotland Office will write to them in due course to confirm the commencement date. I commend the order to your Lordships’ House. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I had considered whether, in speaking today, I should declare an interest. Not only am I a Member of this House but for a short while longer I shall be a Member of the Scottish Parliament. However, I shall not be standing again for the Scottish Parliament, which has delighted a lot of people, and I shall concentrate my efforts, such as they are, in this Chamber, which has upset a lot of people opposite. Therefore, as these boundaries will not affect me, I do not think that declaring an interest is necessary.

It is a great pleasure to see here so many noble Lords from Scotland and I hope that they will participate in the debate today. Many of them were in the other place and served with distinction, and others were in local government. Indeed, there are some who served on the other side in the other place for a long time and I still call them my noble friends. I hope that they will participate, because some very important implications arise from what is being proposed.

As the Advocate-General said, these boundaries have been proposed by the Boundary Commission for Scotland, which has undergone a long and detailed procedure. It has been the procedure for considering boundaries north and south of the border for generations, if not centuries. It is well worn, well trued, well tested and well tried, and it involves the local communities. Proposals have been put forward, submissions have been taken by the Boundary Commission and hearings have taken place, and in many cases substantial revisions have been undertaken to take account of the representations made. Account has been taken of community cohesion and of local views on local authority boundaries. The Advocate-General said that they are not wards but he will concede that all the proposals take account of existing local authority boundaries. Throughout the time that I have been involved in these boundary reviews, community cohesion has been a very important part but unfortunately the equivalence of numbers now seems to be the only criterion that really matters. If that is the case in the future, it will be very worrying for local communities.

Let us compare that procedure, which has brought these proposals to us today, with what is now being proposed and has been considered in another place. I cannot remember the Long Title of the Bill but for simplification I call it the “gerrymandering Bill”, because that is what it is. It reduces the number of constituencies in the United Kingdom by 50—a totally arbitrary number. You might as well say that the MPs’ responsibilities have increased so greatly that the number should be increased, rather than reduced, by 50, but that would be equally arbitrary. I repeat: the proposal that is being put forward is totally arbitrary.

That is bad enough in itself but the really disgraceful part is that the whole democratic procedure, which, as I said, has existed for generations, is to be scrapped and set aside to rush these boundary changes through in time for the next general election. That is a total negation of democracy and is absolutely unbelievable. No account will be taken of community cohesion. No account will be taken of representation. No account will be taken even of local authority boundaries. The new constituencies, in some cases mega-constituencies, will not necessarily take account of local authority boundaries, unless, of course, you are one of the chosen few who—I say looking directly at the Advocate-General—come from Orkney or Shetland or the Western Isles; or happen to be Charlie Kennedy and represent a huge mega-constituency; or, in other words, who happen to be a Liberal Democrat. Maybe there is one SNP in this group just to cover it up, but basically, if you are Liberal, protection will be provided for you. That is the extent of the gerrymandering that is taking place.

I plead with the Advocate-General to go back to his colleagues in government and to ask them to think again about what we are considering here today. I have seen so many changes. I even remember that the late John Smith, the greatest Prime Minister we never had—his widow was here with us earlier, listening to our proceedings—considered that making representations to tribunals was so important that he was in Airdrie town hall the day before he died. All the extra effort might, sadly, have helped to bring on his death. That was how important he considered these democratic hearings.

It really would be outrageous if this gerrymandering Bill were to go ahead. We would then end up with the anomaly of having a democratic procedure for the Scottish Parliament—the Boundary Commission for Scotland would still have hearings, still consider representations, still consider community interest, still take account of local authority boundaries—while all that would have been swept aside for the House of Commons. So in the same United Kingdom we would have two completely different systems: one which continues to be democratic and involves the community and the other which would be a total gerrymander.

I urge the Minister to think again. The Bill will soon come to the House of Lords. I have no authority to warn the Government, but my gut feeling is that, even among Conservatives, Liberal Democrats and Cross-Benchers, there will be some for whom doing away with this democratic procedure will be so abhorrent that they will speak, and I hope vote, against it.

--- Later in debate ---

[Lord Hunt of Kings Heath]

I am grateful to my noble friend for illuminating our concern, because local inquiries allow for local matters and history to be brought to the attention of the commission. That cannot happen if you have simply a paper exercise.

Of course, the Government are determined to scrap the whole local inquiry process for Westminster constituencies, which means that the public will lose the opportunity for meaningful participation in it. That risks undermining the transparency and legitimacy of the current position. We then have the utterly absurd position, as I understand it, whereby the Government wish to hasten the abolition of public inquiries for Westminster constituencies in Scotland but such inquiries will continue for Scottish Parliament constituencies. I should like the Minister to confirm that that is the position of the Government and to have a go at justifying it.

While he is at it, the noble and learned Lord might comment on the boundary position more generally. On this side of the House, we have no problem with the principle of creating equal-sized seats, which has long been written into law and is the main purpose of the Boundary Commission’s work. However, the Parliamentary Voting System and Constituencies Bill pursues the objective of a rigid equalisation of seat sizes, which means that millions of eligible voters, predominantly younger people and those from lower-income groups, will be ignored by the Boundary Commission’s proposals and calculations. That will distort the results. Boundary Commission hearings will no longer be required to take account of history, local ties or geography, because the electoral quota will trump all other considerations. As a consequence, towns and villages will be divided between constituencies. Natural boundaries such as mountains, rivers and valleys will be overlooked. The vast majority of existing parliamentary constituencies held by representatives of all parties, regardless of the electorate, will undergo significant disruption as a consequence of the new rules and thousands of voters will be moved into and out of existing seats. In England, we have just gone through a boundary revision and we are just getting used to new constituencies, only to have them all ripped up.

This is a great pity and a tragedy. The future for Westminster constituencies represents a huge contrast to the way in which the Scottish Boundary Commission has gone about its work. I ask the Minister: why the difference in approach between boundary reviews for the Scottish Parliament and Westminster? It has no logic. It exposes the unsatisfactory and undemocratic nature of the parliamentary voting system Bill, which, I can promise the noble and learned Lord, we will subject to the most rigorous scrutiny possible.

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have taken part in the debate. It has been a very good one. My noble friend Lord Maclennan, who apologised that he would not be able to stay for the wind-up, put his finger on it when he pointed out that there was nothing that we could do. I suppose that we could vote it down, but neither Ministers nor noble Lords can amend this order. Possibly that is why we have ranged slightly more widely than the order itself. I did not expect when I came into the Chamber that I would have to respond, in a debate on a measure dealing with Scottish Parliament constituency boundaries, to questions about the number of peerages that are being created. I note what was said but I point out that a large number of Members have joined this House in recent months, of whom a number contributed today. Indeed, this debate benefited from what they said, so it would be unfair to say that the large increase is necessarily a bad thing when the contributions that we heard today were very good indeed.

I welcome the noble Lord, Lord Hunt, to debating Scottish matters. No doubt the excitement that he felt when he piloted the Marine and Coastal Access Bill and had to deal with all these important devolution issues whetted his appetite for dealing with even more Scottish points. I join him in thanking those who served on the Boundary Commission for their work, which comes to fruition in the report and in the order that we debate today.

There have been contributions from all parts of the House. I hope that I may mention without offending anyone the point made by the noble Baroness, Lady Liddell of Coatdyke, who talked about the passion that Members of the other place have for their constituencies. I reflect that there were a number of contributions to this debate from noble Lords who were once Members of the other place and some of that passion has not been lost. I understand it and think that it undoubtedly coloured and flavoured the debate. Perhaps we have had a foretaste of debates that are still to come and noble Lords have had a chance to rehearse their speeches for a piece of legislation that will come to us probably sooner rather than later.

I will deal with some of the specific points that were raised. My noble friends Lord Maclennan of Rogart and the Duke of Montrose pointed to the reference in the Explanatory Memorandum to complex wording and references. I note that paragraph 3.1 states:

“The Scotland Office recognises that the enabling powers could have been more clearly expressed so as to permit the amendment of those provisions”.

Certainly, I agree that we should look at the wording of the relevant provisions. It is well known that a Bill will be presented in this Session of Parliament to amend the Scotland Act. I say without commitment that that might be an opportunity to look at the matter and take on board some of these points about very complex wording.

The noble Lord, Lord Foulkes, said that there is a reference in the 2004 legislation to the Electoral Commission. In fact, responsibility stayed with the Boundary Commission and did not go to the Electoral Commission. Therefore, it is the report of the Boundary Commission that we are dealing with today.

The question of by-elections was raised by my noble friend Lord Maclennan and by the noble Lord, Lord Watson of Invergowrie. There is no question, as my noble friend seemed to suggest, that this is legislation with regard to by-elections. I will make the position very clear. If the order is approved by your Lordships’ House and subsequently approved and made when it is submitted to the Queen in Council, that will set the boundaries for the next election to the Scottish Parliament—be that the election scheduled for May next year or an extraordinary election that takes place before then. The election will be fought on the new boundaries and the electoral administrators are confident that that can happen from 1 December. With regard to by-elections, if they occur between now and 5 February—because any vacancy that occurs after 5 February would be held open until the election in May—they would be undertaken on the existing constituency boundaries.

[Lord Watson of Invergowrie]

I can accept that—the order is quite clear on it. My question concerned how he and his officials, or indeed the Boundary Commission, dealt with the electoral administrators’ suggestion that they could hold an extraordinary general election on the new boundaries and, it seems, that they could even deal with a by-election before 5 February, which is the cut-off date under this system. That is what I fail to understand. Obviously they lost that argument, but the fact that they could put the argument seems a little alarming.

[Lord Wallace of Tankerness]

Although the order was laid on 1 July, the Boundary Commission’s report was made available on 26 May and has obviously been in the public domain. Although the legislation is not in place, the electoral administrators have been working towards its implementation on the basis of what is in the order.

The noble Lord, Lord Hunt, asked what the main issues are. One of the most important issues is the compilation of the electoral register for the new constituencies. It is my understanding that the new electoral register will be published on 1 December and will reflect the new constituencies for the Scottish Parliament. It will be compiled on that basis. Obviously, if a by-election occurs, it will have to be fought on the existing constituency. It will require some work to put the electoral register together again for the existing constituency but, in the event of that happening, the electoral administrators are confident that it will be possible. It will not have to be done for the whole of Scotland but will be confined to one constituency. I hope that that answers the noble Lord’s question.

More generally on by-elections, the noble Lord, Lord Foulkes, made an interesting point about the different arrangements that can occur. Several noble Lords who have spoken in this debate contributed to, or at least were present at, the debates when the Scotland Bill went through another place and no doubt there are other noble Lords here who were present when the Bill went through this House. A number of us were also members of the Scottish Constitutional Convention, which proposed a scheme leading to the kind of situation that the noble Lord, Lord Foulkes, mentioned. Therefore, we all share the credit for that.

[Lord Foulkes of Cumnock]

The Minister’s noble friend Lord Steel of Aikwood has said to me privately—he has also said it publicly—that, having seen it operate, he now regrets that system and would like it to be changed. Does the Advocate-General agree?

[Lord Wallace of Tankerness]

It is certainly not the Government’s policy to change the system but I think that my party’s view on which system it would prefer is well known. Let us also recall that the voting systems commission was established under Sir John Arbuthnott at around the time of the 2004 legislation and it did not recommend any substantive change to the system. However, I can think of an election system in Scottish local government which would ensure that all vacancies were contested by way of a by-election, but I think that I am probably straying too far on that point.

Also on by-elections, I say to my noble friend Lord Lyell that these boundaries will apply to elections to the Scottish Parliament and not to general elections or elections to the United Kingdom Parliament—indeed, they will apply to the elections in which my noble friend can vote. I am not sure which constituency he is in, but I can certainly confirm that they apply to elections for the Scottish Parliament.

Perhaps I may pick up on some of the other points that were raised. I wondered whether the noble Lord, Lord Foulkes, was going to declare an interest, but he has no interest to declare because these matters will take place after he ceases to be a Member of the Scottish Parliament. The Scottish Parliament’s loss is no doubt our added gain, but we will wait to see. The noble Lord raised the issue, as did a number of noble Lords, about the inquiry system, but he also asked about the power of the Presiding Officer to change the date of the election. It is my understanding that the Presiding Officer can change the date by one month either way. My right honourable friends the Secretary of State for Scotland and the Deputy Prime Minister have spoken relatively recently to the First Minister and to the Presiding Officer about the possibility of the two elections being on the same day in 2015 and whether there are other ways of dealing with that to try to avoid that happening. No firm view has been taken yet, but the matter is under active consideration.

On the issue of inquiries, it is the case that a system of inquiry led to this order, which has been so greatly welcomed, lauded and praised that I am sure it will have no difficulty in getting through. That said, I could not help but reflect that my noble friend Lord Maclennan complained about the size of the north Highland constituency that has been produced under this system of inquiry. The noble Lord, Lord McAvoy, also indicated that he had argued, under the existing system, for Rutherglen not to be in the Glasgow regional area but to be in a different area. Of course, the present system did not assist him in giving him what he wished, although my friend in the Scottish Parliament who is a list Member for Glasgow obviously managed successfully to persuade the Boundary Commission.

[Lord McAvoy]

My Lords, would the Minister accept that the MSP to whom he refers went completely against local interests?

[Lord Wallace of Tankerness]

My Lords, that is clearly beyond this point. People from different political parties took different views.

I would also like to reflect on what was said by Professor Ron Johnston, who is a professor of geography at the University of Bristol whose research interests include electoral and political geography. On oral inquiries, he said that they are,

“very largely an exercise in allowing the political parties to seek influence over the Commission's recommendations—in which their sole goal is to promote their own electoral interests”.

Far be it from me to suggest that that was what happened, but I just ask noble Lords to wonder whether there might have been something of that when people needed to get lawyers—even if they had to pay for their lunch—to argue their case.

[Lord Martin of Springburn]

My Lords, we were not alone in bringing in the big guns. The Liberal Democrat Party had an eminent QC called Ming Campbell. I do not know whether he got a lunch, but our QC got a decent lunch anyway.

[Lord Wallace of Tankerness]

My Lords, there is no such thing as a free lunch. I take the point that one could not say that the Union of Catholic Mothers and the other organisation to which he referred were in any way partisan.

[Lord Hunt of Kings Heath]

My Lords, surely the substantive point is that, whatever the motivation of the parties who may come to the hearings, the proposals are put under public scrutiny. That will be missing from the Bill that will reach us very soon.

[Lord Wallace of Tankerness]

Let me make it clear that anyone, including members of the public, will still, under the proposals being discussed currently in another place, be able to have their say on the proposals. In fact, the proposal in the Bill is to extend the period for representations on proposals from one month to three. Furthermore, if proposals are revised, the Boundary Commission will be obliged to consult once more.

[Lord Hunt of Kings Heath]

My Lords, the point is that there can be a paper-based exercise in which comments are sent in and considered as part of the bureaucratic process, but the point about the local hearings is that the commission’s provisional proposals are really put to the test in a way that I doubt will happen if there is simply a paper-based exercise.

[Lord Wallace of Tankerness]

My Lords, I do not think that that is a fair characterisation of what one would hope would happen. I do not think that it is fair to say that members of the public who write in would be part of just a paper-based exercise by some bureaucratic crunching machine. Surely if people bother to write in—and they will be given more time to do so—one would expect that their views would be given proper consideration by the Boundary Commission. At the start, we properly paid tribute to the Boundary Commission and I think that that is indicative of the fact that, whoever the commissioners are, they will act impartially and independently and will give proper consideration to representations made to them.

A question of timing also arises. In the general election that took place this May, the boundaries used, certainly for England constituencies, were based for the first time on an electoral register that was 10 years old. More frequent reviews can help to address that issue. Many issues contribute to fairness in elections—I do not depart from the passion about communities that has been expressed by noble Lords, not least my noble friend Lord Teverson, whose comments I am sure will have been noted—but it is also important to recognise that out-of-date electoral registers or boundaries based on electoral numbers that are 10 years old are not exactly the best way to try to secure the fairness that one expects from a modern democracy. Therefore, a system that will allow reviews to be shorter will ensure that we are more up to date. I think that that would befit a modern democracy, but I have no doubt that we will go through these arguments on many further occasions.

I hope that I have answered most of the procedural questions, although perhaps not to the satisfaction of those who will continue to raise the issue of reviews. The noble Lord, Lord Watson, asked about the future position of Scottish boundary proposals. There are no proposals to change the system, but it is important to point out that the next review will not take place until, at the very least, eight years’ time and, at the very most, 12 years’ time—that is, at some time between 2018 and 2022. We will have had plenty of opportunity by then to evaluate the alternative system that is proposed. One would hope that good practice will inform any subsequent view as to what should happen in Scotland, but there are no plans to change and no pressing need to change either.

With those words, I again commend the order to the House and beg to move.

Motion agreed.

Terrorist Asset-Freezing etc. Bill [HL]

Lord Wallace of Tankerness Excerpts

Wednesday 6th October 2010 Lords Chamber

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

This has been a useful debate. There has been a general welcome from all sides of the Committee for the Government’s amendments, which introduce an appeal mechanism rather than judicial review for the core designation or decisions to vary or revoke.

Perhaps I could give some of the underlying rationale for the amendments. As introduced, Clauses 22 to 23 set out a procedure for review by the courts of any decisions taken by the Treasury under the powers provided in the Bill, including decisions to make, vary or revoke a designation, decisions in relation to licences issued or applied for, decisions whether to publicise the freeze generally or limit the scope of the publication for reasons of national security or justice and decisions whether to request or disclose information.

A number of noble Lords raised this matter at Second Reading. There were calls to amend the procedure for challenging asset-freezing decisions through the courts from a judicial review to an appeal. It perhaps answers some of the points made by my noble friends Lady Hamwee and Lady Noakes, to which I shall return in more detail, to say that we still believe that judicial review can be a very flexible tool, allowing differing degrees of intensity of scrutiny depending on circumstances and the impact of the decision in question on the individual concerned. In its report prior to Second Reading, the Constitution Committee acknowledged as a result of various court judgments the intensity with which courts scrutinise control orders where the legislation provides for a review applying judicial review principles. That is broadly equivalent to an appeal. Such an in-depth judicial review has been shown to be an effective safeguard in these cases.

Nevertheless, the Government believe that a similar full merits review should be adopted for court scrutiny of asset-freezing designations; that is, decisions to impose, to vary or to renew asset freezes. We believe it because, due to the lack of case law in this area, there is no certainty that the court would choose to undertake such a rigorous judicial review procedure—I think that that is the sense of the comments that were made at Second Reading. We have responded by tabling amendments to introduce an appeal mechanism for asset-freezing designation decisions, spelling out that we would expect a full merits-based review of such decisions to be undertaken by the court. Such an appeal would require both parties to provide the material underlying their case to the court, which would then conduct that full merits-based review of the designation decision, taking all evidence and substituting its own decision if necessary. This level of scrutiny is appropriate for designation decisions, because it is the core decision that will most affect the designated person’s human rights.

Perhaps I may respond to one or two of the specific questions asked in this regard. My noble friend Lady Noakes asked whether it was just a right of appeal at one level. As with appeals generally, it will be possible for appeals to proceed along the normal route, either through the English system or the Scottish system, and ultimately, if it is appropriate, to the Supreme Court.

The noble Lord, Lord Pannick, asked about expedition. He made the point that the provision applies to interim orders. By virtue of that, there would be an expectation that the courts would respond. Indeed, there have been a number of cases where the courts have shown an ability to respond with expedition. That is certainly what we would anticipate if an appeal was brought. On the question on disclosure posed by the noble Lord, Lord Pannick, it is clear from the terms of the Bill that provision and reference is made to the rules of court with regard to the special advocate system. It is therefore envisaged that the rules of court should provide for that system. There is a later amendment in the name of my noble friend Lady Hamwee on which we might be able to discuss this in greater detail.

My noble friends Lady Hamwee and Lady Noakes both raised other decisions where the position would remain as one of judicial review rather than appeal. The Government’s position on that, as for other decisions concerning implementation of the freeze, is that these are not as fundamental to the citizen as the original decision to impose the freeze. That includes the granting of specific licences and the publicity of the fact of a designation. It is certainly our view that maintaining a standard judicial review is appropriate in these cases. I certainly recognise the concerns raised by my noble friend Lady Noakes about judicial review but, as I have said, the courts have already shown, certainly in relation to decisions on control orders, an ability to mount a very rigorous review indeed. These decisions are, however, more administrative in their nature and do not require the same in-depth consideration as a decision to impose an asset freeze. Nevertheless, we anticipate that judicial review of these decisions would include proper scrutiny of the material on which the Treasury decision is made and that the court would have the power to consider further information if it believed that to be necessary. Ultimately, it will be a matter for the courts to decide on the appropriate level of scrutiny to be applied, depending on the decision in question.

My noble friend Lady Hamwee asked whether the court would be able to substitute its own terms if, for example, that was with regard to a licence. The court has discretion to give whatever relief is appropriate; we certainly believe that that could include amending the terms of a licence.

The most reverend Primate the Archbishop of York raised the issue of people being subject to freezes for 30 days without access to funds and legal expenses. The point about that is that we provide licences. A general licence is given at the point where people are designated to ensure that they indeed have access to funds for living and legal expenses. This will be the subject of a set of amendments later in our proceedings. People do not need to go to a court to be able to access that legal aid funding.

Perhaps I might specifically refer to Amendments 5 and 6 and the consequential amendments, which would limit the period for which the Treasury could make asset-freezing designations to 30 days, so that any freeze going beyond 30 days would require confirmation by the High Court. This in many ways reflects some of our debate on the first set of amendments—not only the points raised by the noble and learned Lord, Lord Lloyd of Berwick, but the general issue of the balance between the decisions of the Executive and those of the judiciary. Perhaps not surprisingly, I endorse what was said by my noble friend Lord Carlile of Berriew, who indicated the importance of separating executive decisions from a robust review of those decisions by the judiciary. Indeed, that point was acknowledged by the noble and learned Lord, Lord Davidson of Glen Clova. He indicated that that was the former Government’s view, which they maintain. It is, quite clearly, a matter of important debate and, as my noble friend Lord Lester of Herne Hill indicated, these matters are complex. Ultimately, however, Ministers have the responsibility for national security and our accountability as Ministers is not only to Parliament, which is an important accountability, but to the courts. We believe that we have introduced a robust form of review, if those affected by designation wish to pursue it.

Unlike control orders, asset freezing is not only used against people in the United Kingdom who cannot be prosecuted or deported. In fact, only around 10 per cent of asset-freezing cases involve people who are in the UK or hold funds here and are not being prosecuted for terrorist offences. The noble and learned Lord, Lord Lloyd of Berwick, indicated that he thought that those who were subject to designation should also be prosecuted. I asked how many people who have been subject to asset freezes have been prosecuted. I was advised that 21 individuals in the UK have been convicted for terrorism offences. Six people within the UK have not been prosecuted. I also asked how many persons outwith the UK have been subject to designation for asset freezing; the answer is 36, of which 22 are entities and 14 are individuals. It would not be possible to prosecute them. Nevertheless, consistent with our obligations under the United Nations Security Council resolution and the importance attached to disrupting terrorism by freezing assets, it is important that we have been able to designate in those cases in which it would not be possible to bring prosecutions.

In that small number of important cases in which individuals have not been prosecuted and are within the UK, we believe that the opportunities that are open now through a full form of appeal are appropriate. It would not be appropriate to have a mandatory form of court decision-making, but there is a robust avenue for those who have been designated and wish to challenge that in the courts. In that way, we have strengthened judicial safeguards for asset freezing. For those reasons, I hope that the noble Baroness will be prepared to withdraw her amendment and that the Committee will be minded in due course to support the amendments that have been tabled by the Government.

[Lord Pannick]

Do the Government accept, on special advocates, that the AF case would apply in this context, as it does in the context of control orders, and that it would be necessary for them to disclose at least the gist of the allegations against the individual concerned?

--- Later in debate ---

[Lord Wallace of Tankerness]

I think that I am right in saying that the noble Lord represented successful appellants in the case to which he referred. Certainly we would take the view that the special advocate system and disclosure procedures are designed to ensure justice for individuals in difficult circumstances when, as the noble Lord recognises, public interest material cannot be disclosed. The special advocate system has been in effect for some time. With regard to the specific case, applying the AF judgment to asset freezing, the noble Lord is right that there is a relation to control orders, but the Government do not consider that there is an automatic read-across to all other proceedings involving the use of closed material for special advocates. It is fair to say that the requirements of fairness, which are vital, will vary according to the context and gravity of the consequences for the individual. It is engrained in both domestic and European Convention of Human Rights jurisprudence that fairness is context and fact specific. In the case before the Grand Chamber against the UK that immediately preceded the AF case, the point that it can vary was made. That is no doubt a matter to which we will return when we deal with the issue of special advocates under a later amendment.

[Baroness Hamwee]

My Lords, my apologies for ignoring the wonderful country of Caledonia, which I love very much. It was a particular gaffe, given the presence on the two Front Benches of eminent Scottish lawyers.

What I am going to say should be construed as constructive criticism, which is appropriate from these Benches. My noble friend referred to the human rights aspects of designations and how they had figured in the Government’s thinking in inserting the appeal procedure. The significance of the licensing regime must not be downplayed; the human rights aspects of the licences are enormously important. The Government have explained why they consider that a judicial review will be adequate to deal with licences, but the Minister has not explained—perhaps he does not think it necessary—why the appeal route is being rejected. I ask him these questions to get them on to the record. Perhaps I will come back to them next time.

Clause 22(2) allows for a person affected by a decision to apply for the decision to be set aside. The phrase,

“the decision should be set aside”,

is in Clause 22(3). I do not know whether “set aside” covers setting aside a decision and imposing an alternative, which might be varying a licence. If so, that might answer the point, but I suspect that it might not cover it; it is certainly not clear. Clause 22(4) says that this is the condition for the court giving whatever order it determines if it decides that a decision should be set aside. I want to be reassured that the court can take a view not to set aside the licence but to vary the terms of the licence. I do not know whether the Minister wants to comment on that at this point.

[Lord Wallace of Tankerness]

I thought that I had indeed indicated that it is our belief that the court has the discretion to give whatever relief it considers appropriate if it is dealing with a licence under judicial review and that that can include amending the terms of a licence.

[Baroness Hamwee]

I heard that; I took it as a general comment. I was particularly concerned about the words in what will apply—above and beyond, presumably, although I do not know—and whether the general position can trump what is in this legislation. Maybe we can discuss this between now and the next stage and, if necessary, come back to it. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

I shall speak also to Amendments 41, 42, 44 and 49. Here, we come to the prohibitions—again, creating offences—and there are a number of terms which I am seeking to understand through these amendments. The first is the term “indirectly”, whereby funds, services, economic resources and so on may not be made available directly or indirectly. I could just have sought to delete the word “indirectly” but I can see that it must mean something, and in the context of this issue I do not want to suggest that we are seeking to weaken the arrangements. Therefore, I have chosen instead to insert the words,

“with the intention of benefitting the designated person”,

but, as the Minister will have guessed, my real concern is to know what might be covered by the term “indirectly”.

The other term that concerns me is “partly”. To take the first point at which it arises—in Clause 9—the definition of “financial benefit”,

“includes the discharge of a … obligation for which the designated person is wholly or partly responsible”.

My concern here is perhaps a little different because the situation might arise in which the spouse of a designated person wants to make a payment on a joint mortgage. It seems to me that that would be prohibited, although it could obviously be licensed.

This is all about the family. I accept that there is a proposed new clause about social service benefits, but I wonder whether it is extensive enough. Joint mortgage was one example. Obviously, joint accounts will be frozen—I say obviously, but maybe I will be corrected. Will a spouse’s separate account be affected? To take a different situation, if the spouse’s employer fears that the spouse’s wages are going to a designated person, how should the Treasury, or anybody else, react? Can we have reassurance that the spouse’s income will not be stopped because the terms of the legislation are such that the employer might fear that he is committing an offence?

Amendment 40 specifically addresses joint assets and requires the Treasury to grant a licence, so I am coming at this from a number of different directions. I look forward to hearing what the Minister has to say and beg to move.

[Lord Wallace of Tankerness]

My Lords, as the amendments in this group enjoy a similar theme, it is perhaps not surprising that the Government’s position on the amendments also is similar. Amendments 38 and 42 relate to Clauses 8(1) and 10(1) respectively. These clauses prohibit the making of funds, financial services and economic resources available directly or indirectly to a designated person where the person providing the funds, financial services or economic resources knows or has reasonable cause to suspect that the ultimate recipient is a designated person and, additionally, in the case of economic resources, knows or has reasonable cause to suspect that the designated person would be likely to exchange them or use them in exchange for funds, goods and services. As for my noble friend’s initial question on the import of the word “indirectly”. Quite simply, it means that the benefit is directed through a third party and not the designated person.

The amendments would mean that a person could be prosecuted for breaching these prohibitions only if it could additionally be proved that that person intended the funds, financial services or economic resources to benefit the designated person. There is a concern that that would add a layer of complexity to the prohibitions and make it much more difficult effectively to enforce them. In these circumstances any prosecution would require proof beyond reasonable doubt that the person harboured the intention that the designated person should benefit from such funds, financial services or economic resources.

The Government do not support these amendments for two reasons. First, the amendments increase the difficulty with which the prohibitions can be enforced. Secondly, the Government do not believe that they achieve what is believed to be their intended effect, which is to provide a further protection to parties who unwittingly make funds, financial services or economic resources available directly or indirectly to a designated person. The prohibitions are already drafted so that persons who do not know or have no reasonable cause to suspect that they are breaching them, are not caught. It is therefore somewhat superfluous to require further that the prohibitions should apply only to those who intend that the funds, financial services or economic resources provided should benefit the designated person.

--- Later in debate ---

[Lord Pannick]

My Lords, I am very sympathetic to the amendment for two reasons. First, it seems to me right and proper to allow a person to use as much of their financial resources as they see fit to pay for legal advice and assistance. To impose restrictions on them in that respect is simply to interfere with the administration of justice. Secondly, I cannot see that the Treasury has any interest whatever in preventing a person using their own funds to pay for legal advice and assistance. The Treasury’s only legitimate interest is in preventing the use of the funds for the purposes of terrorism. If the money is being paid to someone who is regulated by the Law Society or the Bar Council—I appreciate that the amendment may need some tinkering to cover those points—I cannot see that the Treasury can have any legitimate concern as to the improper use of the money for purposes associated with terrorism. If the Minister takes a different view and there is evidence to suggest that persons who are regulated by the Law Society or the Bar Council are or may be acting improperly in this respect, please will he tell the House and explain what steps the Government are taking to draw such concerns to the attention of the proper regulatory authorities?

[Lord Wallace of Tankerness]

My Lords, this is an important amendment, and one that is somewhat foreshadowed by the comments of the most reverend Primate the Archbishop of York when we debated an earlier set of amendments. The effect of the amendment would be that any payments the purpose of which was to pay legal expenses of a designated person would not require a licence. As a result, the Treasury would have no oversight of such payments.

It is important to emphasise that that would include payments not just directly to solicitors and law firms but to designated persons themselves if the purpose were to pay legal expenses. This could include payments made by one designated person to another if the first designated person had access to free funds.

I understand the legitimate concerns that have prompted the amendment. I emphasise without equivocation that a designated person must be in a position at the earliest possible opportunity to challenge a designation or any other related decision made by the Treasury under the Bill, but I believe that the existing licensing scheme meets this requirement. Licences already provide a controlled mechanism whereby designated persons can be provided with funds to pay for legal representation with adequate conditions in place to control the risk of funds being diverted to support terrorism. A designated person or any other affected party may also request a licence at any time.

Moreover, the Treasury has issued a general licence that applies to all designated persons to enable eligible legal aid payments to be made. I give the assurance that that will be replicated once the Bill is enacted. That general licence ensures that a designated person will have immediate access to legal representation where they qualify for legal aid. Any other party may request a licence at any time to pay for a designated person's legal expenses. I emphasise that the general presumption is that where a licence is requested to pay for legal costs, it will be granted.

The Government believe that this is the proper and effective way to deal with the provision of funds in relation to legal services provided both by the state, under the legal aid system, and by other persons. It does not and is not intended to impede a designated person's ability to access justice, which we think is very important, but it also ensures that the Treasury can maintain oversight of a designated person's expenditure. I hope that, against that background and with that reassurance, the noble Baroness will be willing to withdraw her amendment.

[Baroness Hamwee]

My Lords, we come up against the issue of policy and legislative provision yet again. The oversight by the Treasury could be provided by requiring reporting to the Treasury. I take the point about regulated providers made by the noble Lord, Lord Pannick, and the point about not permitting payment to the designated person made by the Minister. Subject to those points, I do not see a lot wrong and I see a lot right with my proposition and, again, I do not want to abandon it tonight. However, for the moment, I beg leave to withdraw the amendment.

Terrorist Asset-Freezing etc. Bill [HL]

Lord Wallace of Tankerness Excerpts

Wednesday 6th October 2010 Lords Chamber

[Baroness Noakes]

My Lords, I am sure that the Minister has “resist” written in large letters all over his speaking notes, but before he rushes to do so I shall add one example from the real world, which came to my party when we were preparing for the emergency Bill earlier this year. Our adviser at that stage, who was an eminent QC, gave us an example in relation to analogous legislation in which a company had been included on a blocked list because its shares had previously been held by a suspected person. Some months before his inclusion on this list, the person had sold his shares in the company on an arm’s-length basis and for value, but the company was nevertheless incorrectly included on a blocked list. It took a fair amount of time for the designation to be challenged and for the various other licences to be obtained, but in that intervening period the company suffered a considerable period of loss. My point in raising this is merely to say that there are real-world examples when loss can occur. We are not dealing with theoretical situations of safeguards to be included in the Bill. I hope that the Minister can give some reassurance to the Committee that remedies are available when that sort of situation arises.

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

My Lords, in responding to the amendment, I congratulate the noble and learned Lord, Lord Davidson of Glen Clova, on a very productive summer working on the Antipodean experiences, based on questions that he had already asked my noble friend Lord Sassoon, which are the origins of these new clauses. They raise important points about compensation in very real situations, such as the one described by my noble friend Lady Noakes, when an incorrect designation can lead to consequences of loss for those who have been wrongly designated, and also on the question of indemnity.

Amendment 46 introduces a new clause that imposes a duty on the Treasury to make an order providing for compensation for persons who have suffered loss as a result of an incorrect designation. The noble and learned Lord, Lord Davidson, said that this was based on Australian legislation in a similar field, and referred in his closing remarks to a parallel provision in the Anti-terrorism, Crime and Security Act 2001, under which the Treasury may include a provision for the award of compensation when a person has suffered a loss as a result of a freezing order or in relation to a licensing decision. The word “may” marks the distinction between the 2001 Act and the new clause before us today, which makes it a requirement by using the word “shall”.

With regard to our position, my noble friend Lady Noakes rightly anticipates the word “resist”, not because we do not recognise that there is an important issue here to be addressed but because the Bill already includes a number of important safeguards, including the right of any affected person to challenge a decision of the Treasury. Indeed, following our amendments, we have debated today the right of affected people to apply to the courts for a robust and in-depth consideration of a Treasury asset-freezing decision, as well as to apply for judicial review in terms of licensing matters. Should a designated person or any other person wish to seek compensation for loss suffered as a result of an incorrect designation, we believe that there are sufficient existing opportunities available for them to do so. It would be possible, in connection with a challenge of the sort that I have described above, for the person to claim damages.

I note that the new clause, as drafted, is in respect of an incorrect designation—in other words, it goes to the heart of a designation that has been made. That is in the terms of the new clause that has already been debated and which the House will vote upon later. The new clause relating to appeals to the court relates to a decision of the Treasury to make an interim or final designation of a person. I refer the Committee to the terms of that new clause, at Amendment 57:

“On such an appeal, the court may make such order as it considers appropriate”.

Therefore, as I have indicated, we believe that it would be possible, in connection with a successful challenge against the designation, for the person to claim damages, and it would be open to the court to award damages to a successful applicant. Indeed, there may be other circumstances—

[Baroness Noakes]

I apologise for interrupting the Minister. If I turn to Amendment 57, I see that it is the designated person who may appeal, which does not include all the potentially affected persons. Would he comment on that?

[Lord Wallace of Tankerness]

I acknowledge that point. My understanding is that if a person other than the designated person had suffered loss as a result of a decision of the Treasury, it would be possible for them to raise an action. I will get further information to confirm that to my noble friend, but the person whose designation is being challenged—the designated person—would have a forum and an opportunity in that context to seek damages. It may also, in some circumstances, be open to a person to claim damages under the Human Rights Act if the particular circumstances so arose, and therefore we not believe that any further provision for compensation is necessary.

The purpose of Amendment 52 would appear to be to increase the protection from prosecution given to a person complying with the provisions of Part 1 of the Bill. It would achieve that by specifying that no person complying with Part 1 was liable to court action as a result of such compliance. Again, the intention behind this is understandable, and we recognise that the rationale is to provide that additional protection from claims made against persons—it could be, for example, bank employees who have quite dutifully acted in compliance with the requirement under Part 1 of the Bill. However, we do not believe that the proposed clause is necessary. It is already a defence to claim that a person was acting in compliance with a lawful requirement, and the Government believe that this principle is sufficiently well established that the drafting of the Bill does not need to be amended. In fact, the basic principle is already there, and we do not need to add to it; indeed, it is often the case that when you add to something that is already well established in principle, you sometimes can give rise to questions about the extent of the principle. We believe that that principle is there, and it is well established. Accordingly, the amendment is not necessary. In the circumstances, I hope that the noble and learned Lord, Lord Davidson, will be prepared to withdraw his amendment.

[Lord Pannick]

I would like clarification in relation to compensation. As I understood the Minister, he suggests that Amendment 57, giving the court the power to make such order as is considered appropriate, would be broad enough to empower the court to award compensation to the affected individual who had been designated. Is the Minister saying that this provision is broad enough and is intended to overturn the general principle of English administrative law—and, I presume, Scottish administrative law—that the law does not normally provide compensation for those who have suffered direct loss as the result of invalid administrative action? One normally needs to show some tort, a misfeasance—that either the official knew that what he was doing had no lawful basis or he was at least reckless. If it is the intention to give the court a power to grant compensation simply for the invalid nature of the designation, would it not be better to say so expressly in the Bill?

[Lord Wallace of Tankerness]

I am grateful to the noble Lord for that intervention. I sought to draw a distinction, which I think my noble friend Lady Noakes made, under Amendment 57, where the question is of the designated person himself or herself. My noble friend made a different point, the position on which I indicated I would write to her and clarify.

My understanding is that it would be possible for the court to make, as he says, such orders as it considers appropriate. That is not qualified in any way, although I take the noble Lord’s point. If indeed it requires further specification then I will be willing to consider that. If it is felt that the nature of what is in the Bill, although it seems very wide, is insufficiently wide to cover the reassurance that I have given, I will undertake to look further at that.

[Lord Davidson of Glen Clova]

I am invited to withdraw, and the Minister has always been remarkably persuasive when I appeared against him in court. There are a couple of points though. First, one cannot write off the Antipodes with a wave of the hand in the way that the Minister sought to do; they face the same problems and have produced imaginative responses.

With regard to the question of imposing a duty in respect of compensation, true it is that that differs from the 2001 Act; but it does not avoid the dissonance that the 2001 Act actually refers to a possibility—that is, a discretion in relation to compensation. I invite the Minister at least to consider whether there might be a similar discretion, if not a duty, in the Bill.

In relation to the safeguards already in place, one may obtain damages whether one is the designated person or a non-designated person. I am still slightly confused as to where in the Bill one is to find this. If it is to the Appeal Court that one must go, then not only is there the issue that the noble Baroness, Lady Noakes, raised—we will find out in due course what the answer to that is—but there is also the question of how the Appeal Court is going to deal with damages. As the Minister well knows, simply because one asserts a damage, it does not follow that it will be accepted by the authorities. Is the Appeal Court to have a fact-finding role in relation to damages?

In relation to judicial review, again, for a party who is not the designated person to raise their own judicial review and proceed to damages is perhaps not necessarily—as a matter of law, as the noble Lord, Lord Pannick, suggests—the most obvious way of acquiring damages. Again, it would be helpful in due course to have some clarification on that. I welcome the Minister’s embrace of the Human Rights Act, for which I know he has a strong regard, although it has not always been demonstrated by other members of the coalition. The way in which this is to proceed leaves a certain gap as to where the Human Rights Act will go in these issues. I will accede to the Minister’s suggestion that I withdraw the amendment, but I also note that we may well return to this on Report.

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[Baroness Hamwee]

This is a short amendment to Clause 16, which gives the Treasury powers to request information. Under subsection (3) we are told that the power is exercisable only where the Treasury believes that it is necessary to monitor compliance or detect evasion. My amendment would take out “the Treasury believe that” so that it reads “only where it is necessary for the purpose”, to provide a more objective test and give one the basis to ask for confirmation that the belief—assuming the clause is unamended—that the Treasury must have is reasonable. I beg to move.

[Lord Wallace of Tankerness]

I thank my noble friend for this amendment. As she has indicated, the effect of the amendment would be to make the grounds for a request under this part into an objective test by requiring it to be necessary, rather than—as provided and drafted as present—a subjective test. My noble friend would do that through the removal of the reference to the Treasury believing it to be necessary. I understand the concern that prompts the amendment. The clause makes whether to seek certain information a matter of subjective judgment for the Treasury. However, if this is challenged we believe that, as a consequence, the court will look at the reasonableness of the belief that it was necessary, rather than at whether it was objectively necessary. It is a high test and threshold for there to have to be a belief that the information must be necessary. Ultimately, whether the information is needed or not it is a matter for the Executive. However, as drafted, there is a high threshold to be satisfied, but it is nevertheless considerably preferable to the objective test that would result from my noble friend’s amendment. Therefore, I urge her to withdraw her amendment.

[Baroness Hamwee]

I am grateful. I beg leave to withdraw.

--- Later in debate ---

[Baroness Hamwee]

This amendment is longer but I hope the debate will not take us very long. We have just dealt with Clauses 16 and 17, which allow the Treasury to request—though it really comes down to “require”—information or documents. Clause 18 makes it an offence to fail to comply with such a request. I am grateful, as always, to the organisations Justice and Liberty for the amendment, which makes provision in relation to that requirement where providing information or documents might result in self-incrimination.

The Human Rights Act provides under Article 6 the right to a fair trial and that includes privilege against self-incrimination. The amendment is modelled on provisions in existing legislation and would continue to require the person in question to provide the information, but would also provide that evidence which is self-incriminatory should not be admissible in any criminal proceedings against that person. I beg to move.

[Lord Wallace of Tankerness]

My Lords, as my noble friend has explained, the underlying concern which her amendment seeks to address is that there could be circumstances leading to self-incrimination. The amendment seeks to protect the privilege against self-incrimination. She has also indicated that it is based on provisions in other legislation. I think that the Companies Act may have similar provisions. The amendment appears to be born from a concern that the Bill infringes that right against self-incrimination. I seek to reassure my noble friend and the Committee that the privilege against self-incrimination is not overridden by the Bill. In particular, a concern held by a person that compliance with an information request would infringe that person’s right against self-incrimination would form a reasonable excuse. I draw the Committee’s attention to Clause 18(1), which states:

“A person commits an offence who—

(a) without reasonable excuse refuses or fails … to comply with any request made under this Chapter”.

We believe that the right against self-incrimination would form a reasonable excuse under Clause 18(1) to refuse to comply with such a request. I believe that this provision is sufficient to maintain the important privilege against self-incrimination to which my noble friend referred. I hope she will be reassured that it is sufficient and that she will therefore withdraw the amendment.

[Baroness Hamwee]

My Lords, indeed I am reassured and I beg leave to withdraw the amendment.

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Moved by

[Lord Wallace of Tankerness]

55: Clause 19, page 9, line 43, at end insert—
“(ba) to any law officer of the Crown for Jersey or Guernsey;”

[Lord Wallace of Tankerness]

My Lords, this is a short technical amendment. Clause 19 as a whole provides that the Treasury may disclose information obtained under Part 1 to various persons, organisations and bodies within the United Kingdom and elsewhere for the purposes of facilitating compliance with the asset-freezing regime, promoting co-operation among those on whom it falls to implement it and enabling effective enforcement of the financial restrictions within the United Kingdom and across borders. Therefore, the ability to share information is essential to the maintenance of an effective asset regime. However, I take the opportunity to stress that the Treasury will share information only when it is necessary to do so, and will disclose only those aspects of the information which need to be disclosed. However, the Government have tabled this small amendment to remove any doubt that the disclosure of information obtained under Part 1 may be disclosed to the law officers of Jersey or Guernsey. We have done so because the law officers of Jersey and Guernsey are appointed by the Crown in Right of Jersey and Guernsey but are independent of the two states. Because of this distinction, we felt that it was necessary to ensure that the original intention of the clause—namely, the ability of the Treasury to share information with these law officers—has been met. I hope that your Lordships will be able to support this technical amendment to the Bill.

Amendment 55 agreed.

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[Lord Wallace of Tankerness]

My Lords, Amendment 70 from my noble friend Lady Hamwee raises some important points about the use of special advocates and disclosure, as has been reflected in the speeches in this—albeit short—debate.

Amendment 70 relates to the supplementary provisions in relation to anyone wishing to challenge an asset-freezing decision. Clause 23(4), which the amendment seeks to delete, applies the procedures to be followed in determining an application made to the court for a Treasury decision to be set aside. The provisions of subsection (4) require the maker of the rules of court to have regard both to the need for a proper review of the decision that is subject to challenge and to the need to ensure that disclosures are not made where to do so would be contrary to the public interest such as—to give the most obvious example—for reasons of national security.

As asset-freezing proceedings relate to issues of national security, some cases will inevitably involve the use of sensitive, or closed, material such as intelligence material that it would not be in the public interest to disclose to the individual concerned. However, I emphasise that the starting point must be that the individual is given as much information as possible, subject only to the legitimate public interest concern. However, the provisions in Clause 23 ensure that closed material can also be used in court proceedings through the special advocate system, which is the system that Amendment 70 seeks to restrict but which nevertheless should, we believe, be part of the system that is used.

The special advocate system and the disclosure procedure are designed to ensure procedural justice for individuals in admittedly difficult circumstances in which in the public interest material cannot be disclosed to them. The special advocate, who is a specially cleared lawyer, will take instructions from the individual and will then have access to the closed material. Without this subsection, the court might not be able to appoint a special advocate, whose role would be to argue for more information to be disclosed to the individual and also, in effect, to mount a challenge against the Treasury decision involving closed information.

As this debate reflects, as other exchanges have reflected and indeed as court cases reflect, the Government recognise that a range of concerns have been expressed about the special advocate system. I assure the Committee that the Government are committed to meeting our obligations under the European Convention on Human Rights with respect to a right to a fair trial and we believe that the special advocate system is part of the process. I can advise the Committee that there will be an opportunity to raise the concerns that this amendment is aimed at more widely during a consultation on a government Green Paper on the use of sensitive information in judicial proceedings. That Green Paper will aim to develop a framework for ensuring appropriate judicial and non-judicial scrutiny of intelligence and security activities in line with the Government’s commitment to individual rights, the rule of law and properly protecting national security. It is anticipated that that Green Paper will be published next year.

Ultimately, we must constantly strive to secure in a modern legal framework the best balance between the interests of justice and the interests of security. We referred earlier to the case in which the noble Lord, Lord Pannick, represented the successful appellants. I indicated to him that that case obviously related to control orders and that the Government do not necessarily accept a read-across. I think he will understand why we are not in a position to make that read-across. I pointed out to him in an earlier exchange that fact and context are important in these circumstances. However, I reiterate what I said earlier: our starting point is that, so far as is consistent with the legitimate interests of national security, we should advise persons subject to a designation order what the grounds of that order are.

I acknowledge that this is a difficult and sensitive matter. I have indicated that we want to look at this whole issue next year on the basis of a Green Paper but, for the purposes of the present Bill and this amendment, we believe that it would be a mistake and not necessarily in the interests of the person who is subject to designation for this subsection to be removed. Controversial though the special advocate’s role may be, we nevertheless believe that it will be necessary in dealing with appeals or indeed judicial reviews that may arise under these provisions.

[Lord Pannick]

Can we be clear about this? Although the Government have introduced a very welcome right of appeal for persons who are designated, the Minister is telling the Committee that there may be cases where an individual is told absolutely nothing about the reasons for his designation and he will be left to rely on the special advocate, to whom he cannot talk and who cannot take instructions from him. Is that the Government’s position?

[Lord Wallace of Tankerness]

As I believe I indicated when I started to address this matter, the starting point is that the individual should be given as much information as possible, subject to a legitimate public interest concern. That is our position. We would wish to give as much information as possible, subject to the important question of where there may be legitimate national security reasons for not going beyond a particular area. Clearly, a special advocate can argue that that is insufficient. One of the duties of a special advocate is perhaps to challenge the Treasury about whether more information should be made available. Indeed, as court cases show, the courts look at this matter very seriously. However, in terms of the amendment, we believe it is important that the role of the special advocate is in place; otherwise, the amount of protection available to the person who is the subject of a designation order may be reduced.

[Baroness Falkner of Margravine]

The forensic intervention of the noble Lord, Lord Pannick, has gone to the heart of the problem. If I understood my noble and learned friend correctly, I think he was saying that we will have a Green Paper. That will be some time next year, but in the mean time my noble friend Lord Macdonald is conducting a review of the counterterrorism and security regimes which will report some time this autumn. Yet, we are asked with these events anticipated to leave the Bill as it is. What will we get? Will we have bad legislation which will be overturned shortly as it will be deemed inappropriate if my noble friend Lord Macdonald finds that that is the case; or will it be overturned as a result of the consultation? As this Bill is such an improvement on the previous regime, would it not be sensible to take this improving zeal forward slightly and stick with our consistent respect on this side of the House for the rule of law in civil liberties?

[Lord Wallace of Tankerness]

I recognise and appreciate the zeal with which my noble friend makes her point. I reiterate that the disclosure process is designed to ensure that the maximum amount of material that can be disclosed to the individual without damaging the public interest should be disclosed. We heard today of the Law Lords judgment in the case of AF and Others that in certain cases, such as control order hearings, even when public interest concerns arise, the disclosure obligations were considerable. Because of the legitimate concerns that have been expressed, we want to look at this issue. We do not need to reiterate the fact that this legislation has to be on the statute book. I do not think that anyone has advocated that we should extend sunset clauses. It is common ground that we wish this legislation to be on the statute book by 31 December this year. That is not sufficient time to allow this important review to take place, but I can give an assurance that the matter is of such importance that we are looking at it. However, I emphasise that removing this subsection could lead to protection that would otherwise be available through special advocates not being available.

[Baroness Hamwee]

The noble Lord, Lord Pannick, as my noble friend said, has described the situation very graphically. But his description, my noble friend’s flattery or my amendment will not get us further tonight. I am not surprised that the Government resist dealing with special advocates separately in this regime from how they might be dealt with overall. It occurred to me because of the counterterrorism review to suggest a sunset clause to this Bill so that we would be forced to reconsider it all when we had the outcome, but I thought that that would not endear me to my noble friends, and more importantly it is not entirely the proper way to go about things. However, it was quite tempting. I am not at all surprised at the response. I share the concerns that have been expressed and beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

71: Clause 23, page 12, line 4, after “on” insert “an appeal under section (Appeal to the court in relation to designations) or”

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

74: After Clause 23, insert the following new Clause—
“Initial exercise of powers to make rules of court
(1) The first time after the passing of this Act that rules of court are made in exercise of the powers conferred by section 23(4) in relation to proceedings in England and Wales—
(a) on an appeal under section (Appeal to the court in relation to designations), or(b) on a claim arising from any matter to which such an appeal relates,those rules (together with any related rules of court) may be made by the Lord Chancellor instead of by the person who would otherwise make them.(2) The first time after the passing of this Act that rules of court are made in exercise of the powers conferred by section 23(4) in relation to proceedings in Northern Ireland—
(a) on an appeal under section (Appeal to the court in relation to designations), or(b) on a claim arising from any matter to which such an appeal relates,those rules (together with any related rules of court) may be made by the Lord Chancellor instead of by the person who would otherwise make them.(3) Before making rules of court under this section, the Lord Chancellor must consult—
(a) in relation to rules applicable to proceedings in England and Wales, the Lord Chief Justice of England and Wales;(b) in relation to rules applicable to proceedings in Northern Ireland, the Lord Chief Justice of Northern Ireland.(4) The Lord Chancellor is not required to undertake any other consultation before making the rules.
(5) The requirements of subsection (3)(a) and (b) may be satisfied by consultation that took place wholly or partly before the passing of this Act.
(6) Rules of court made by the Lord Chancellor under this section—
(a) must be laid before Parliament, and(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which they were made, cease to have effect at the end of that period.(7) In reckoning the period of 40 days no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(8) If rules cease to have effect in accordance with subsection (6)(b)—
(a) that does not affect anything previously done in reliance on the rules, and(b) subsection (1) or (as the case may be) (2) applies as if the rules had not been made.(9) The following provisions do not apply to rules of court made by the Lord Chancellor under this section—
(a) section 3(6) of the Civil Procedure Act 1997 (Parliamentary procedure for civil procedure rules);(b) section 56(1), (2) and (4) of the Judicature (Northern Ireland) Act 1978 (statutory rules procedure).(10) But section 4(1) of the Statutory Instruments Act 1946 (statutory instruments which are required to be laid before Parliament) applies to any such rules applicable to proceedings in Northern Ireland as it applies to a statutory instrument which is required to be laid before Parliament after being made.
(11) Until section 85 of the Courts Act 2003 (process for making civil procedure rules) comes into force, in subsection (9)(a) above, for “section 3(6)” substitute “section 3(2)”.
(12) In this section—
“related rules of court” means rules of court that—
(a) are contained in the same instrument as the rules mentioned in subsection (1) or (as the case may be) (2), and
(b) relate specifically to the same kind of proceedings as those rules,
“rules of court” means rules for regulating the practice and procedure to be followed in the High Court or the Court of Appeal.”

[Lord Wallace of Tankerness]

This group of government amendments make provision for court rules for the hearing of challenges to decisions by the Treasury. Amendment 74 is designed to ensure that court rules tailored to the requirements of an appeal from a designation decision are in place shortly after the Bill is enacted. Having court rules in place might self-evidently be necessary to ensure that there is a procedure for hearing any challenges that commence shortly after Royal Assent.

Ordinarily, court rules are made by the relevant committee—in this case, either in the Civil Procedure Rule Committee or the Northern Ireland Supreme Court Rules Committee. However, the amendment gives the Lord Chancellor power to make the initial rules. It is important to explain that the reason for doing that is entirely one of practicality. Rules are needed immediately the Act is in force and, given the short timeframe, it would be very difficult for the committees to make such provision. We therefore think that the Lord Chancellor is best placed to do so. However, after that initial exercise of the power, any future changes to the rules would be solely for those committees to determine.

A similar situation arose in the context of tailoring court rules for asset-freezing proceedings under the Counter-Terrorism Act. Again, rules were needed to be in place immediately after designation, and provision in that case was made for the Lord Chancellor to make the rules in a similar way. I can assure the Committee that, before making rules, the Lord Chancellor will be required to consult the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland as appropriate. Rules must be laid before Parliament and be approved by both Houses within 40 days, failing which they will cease to have effect.

Amendments 92 and 93 make small technical changes to the existing court rules made by the Lord Chancellor under the Counter-Terrorism Act 2008 to apply these rules to any challenges to Treasury decisions other than designation decisions. These will fall to be determined by judicial review. Amendments 89 to 91 make consequential changes, primarily to set out the territorial extent of the amendments to the court rules made by Amendments 92 and 93. Anticipating a possible question from the noble and learned Lord, Lord Davidson of Glen Clova, when I saw these provisions I asked what was the position in Scotland. I am assured that the rules of court in Scotland can be made under the Court of Session Act 1988, that no additional power needs to be taken in the Bill and that the Office of the Solicitor to the Advocate-General has been in touch with the Lord President's private office about specific rules which need to be made. With those reassurances, I beg to move.

Amendment 74 agreed.

Elections: AV Referendum and Scottish Parliament

Lord Wallace of Tankerness Excerpts

Tuesday 20th July 2010 Lords Chamber

[Lord McAvoy]

To ask Her Majesty’s Government what is their response to the representations made by the Convener of the Interim Electoral Management Board for Scotland stating that any referendum on introducing the alternative vote could not be combined in Scotland with elections to the Scottish Parliament under that Parliament's current rules.

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

My Lords, the letter that my right honourable friend received from the convener of the board made no such representations. Specifically, there are no rules of the Scottish Parliament which deal with these matters as responsibility for election administration remains with the United Kingdom Parliament.

[Lord McAvoy]

My Lords, that then begs the question of exactly who arranges and legislates for the specific date. What the Minister has said contradicts what the election board convener has said and needs further clarification. When the Deputy Prime Minister made a Statement in the other place on the proposed referendum he made no mention of the position in Scotland regarding the date. The suspicion there is that in the rush to satisfy the Liberals, no proper consideration was given to ascertaining the correct position regarding the date. How does it meet with the Government’s policy of respect for the Scottish Parliament and for this House if we are asked to rush through legislation based not on the needs of the country but on the needs of a shabby collaboration between two political parties?

[Lord Wallace of Tankerness]

My Lords, I am grateful for the opportunity to clarify the position, because I have had the benefit of seeing the letter from Mr Tom Aitchison, the board convener, and have not had to rely just on press reports. In that letter Mr Aitchison indicates that he would encourage the UK Government to amend the order for the Scottish Parliament elections to allow a combined poll to be held. Under the current rules, under the order of 2007, it is not possible for that to happen. However, he goes on to say:

“Allowing a formal combination of polls, for the referendum and parliamentary elections, would have many advantages both for the voter and the electoral administrators”.

We were already seized of that, and it will be addressed in the forthcoming legislation to pave the way for the referendum and the alternative vote. I would only add that the noble Lord—whom I welcome to this House, having served with him in the other place—whipped the Scotland Act, which makes provision for the Scottish election polls to be combined with a poll for another election. It does not allow them to be combined with a poll for a referendum, but that is what the forthcoming legislation will seek to do.

[Lord Maclennan of Rogart]

My Lords, has my noble friend had an opportunity to consider the possible coincidence in timing of the elections to the Scottish Parliament and the general election to the United Kingdom Parliament in 1915? Would that require some alteration of our legislation?

[Lord Wallace of Tankerness]

My Lords, I am sure that my noble friend meant 2015—1915 is beyond my abilities. He makes a very important point. My right honourable friend the Secretary of State for Scotland has already written to the First Minister, the Presiding Officer of the Scottish Parliament, the other political leaders in Scotland, the Electoral Commission and election administrators to say that he is prepared to discuss this issue with them. I can assure my noble friend and the House that my right honourable friend will listen constructively to what they have to say on the coincidence of elections, as a result of fixed-term Parliaments, in 2015 and every 20 years thereafter.

[Lord Hunt of Kings Heath]

My Lords, in addition to the issue of a number of votes taking place on the same day next May, including potentially three votes in Wales, is there not also the issue of a differential turnout? Parts of this country, particularly London, will not have any vote at all except the potential referendum vote. There will be a differential turnout. Will that not call into question the very fairness of a referendum?

[Lord Wallace of Tankerness]

No, I do not think that it should. Indeed, I make no secret of the fact that there is a combination of polls in Scotland, Wales, Northern Ireland and many parts of England where there are local elections. One of the advantages will be increased turnouts for both the respective elections and the referendum. It will be up to the respective yes or no campaigns in places where there are no other elections to try to ensure that there is a good turnout for a referendum on a very important issue facing the country—how its elected House should be elected. It is an issue on which the noble Lord’s party brought forward legislation when it was in government. I look forward to receiving its support when we debate these matters when the Bill comes to this House.

[Lord Grocott]

Further to the answer that he has just given, does the noble and learned Lord not recall, as I do, that for years and years the Deputy Prime Minister and others have been assuring us that the British public are desperate to get rid of the first past the post system and will queue at the polling stations at the first opportunity to do so? Now we are being told that it is essential that we have the referendum on the same day as some other elections because it is the only way that you can guarantee that anyone at all will be bothered to turn out. Who is right?

--- Later in debate ---

[Lord Wallace of Tankerness]

The answer is the one that I just gave to the noble Lord, Lord Hunt, who is concerned that there might not be a good turnout in places such as London. It is an important issue, and these issues will be well debated. However, I think that those who are suggesting that, somehow or other, people in Scotland, Wales, Northern Ireland and parts of England cannot cope with dealing with two issues on the one day are totally underestimating them. It is an insult for them to suggest that it is not possible to vote on both matters on the same day.

[Lord Tyler]

Will my noble friend confirm whether there is a precedent for holding a referendum on the same day as local elections? I have been informed that the voters of London were able to vote in a referendum about the future governance of the city at the same time as local elections were taking place. Will he confirm that the people of Scotland are quite as intelligent as the people of London?

[Lord Wallace of Tankerness]

I am certainly happy to give that confirmation. I think—I will need to check, but I think—that my noble friend is right that the referendum on the mayoral system for London was on the same day as the London local elections. I think that I was registered in London at that time, when I was a Member of the other place. I remember going to the same polling station as my noble friend Lord Ashdown and, as we entered it, the then leader of my party asked, “Which way do we vote?”.

[Lord Foulkes of Cumnock]

My Lords, it is in no way connected with the lack of intelligence or otherwise of the electorate in Scotland. However, can the Minister confirm that should the Scottish Parliament make a decision that it does not wish the referendum in Scotland to be held on the same day as the Scottish Parliament elections, the United Kingdom Government will honour its wishes? In asking that, I declare an interest as a Member of the Scottish Parliament.

[Lord Wallace of Tankerness]

I recognise the noble Lord’s interest. My right honourable friend the Deputy Prime Minister has made clear what we wish to do. There are many examples from many places around the world of elections and referendums taking place on the same day. With the first Scottish election taking place in the shadow of the Kosovo engagement and the second Scottish election coinciding with the Iraq war, I do not believe that there will be any question of the Scottish elections being overshadowed by the referendum.

[Lord King of Bridgwater]

Can my noble friend give an assurance that if voters are queuing to vote in large numbers, there is some chance of their being able to vote and having their votes counted, after the shambles under the previous Government?

[Lord Wallace of Tankerness]

I think that all sides of the House would agree that that it is very important that anyone who wishes to vote and turns up in time to vote should be allowed to vote.

[Baroness Farrington of Ribbleton]

My Lords, what will the Government advise people who believe that a referendum on an alternative voting system for the House of Commons ought to be considered in the context of proposals from the Government for elections to this place? Surely it is logical for people to be able to view things in the round rather than having to make a judgment about one-half of the issue.

[Lord Wallace of Tankerness]

As my right honourable friend the Deputy Prime Minister has indicated, there is no doubt that proposals will be brought forward in a draft Bill to consider the constitution of this House and how part of it, if not all of it, will be elected. However, we should now move forward to determine the mode of election to the other place. That was clear in our coalition agreement, and it was supported by the Labour Party—indeed it was in legislation—at the last election. The sooner we get it done, the better.