Parliamentary Voting System and Constituencies Bill
Lord Wallace of Tankerness Excerpts(13 years, 9 months ago)
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Lord Wallace of Tankerness
That this House do not insist on its Amendments 1 and 8 to which the Commons have disagreed for their Reasons 1A and 8A:
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, we have now come to the consideration of the Commons response to your Lordships’ amendments. Perhaps two or three weeks ago, some of us wondered whether, or at least when, we would see this day. However, we considered the Bill in some detail, which we then sent to the other place. This House rightly took a view on important issues in the Bill and made amendments to the Bill, as the House saw fit, which asked the Government and the other place to think again on a number of issues.
The other place considered—it surprised me to see the number—104 amendments from this House. Many of those were of a technical nature, but even some of the technical amendments proposed by the Government were responding to points that had been made in both Houses on, for example, absent voting in the referendum, co-ordinating work, encouraging participation in the poll and adding clarity to some of the boundary provisions. However, a number of those amendments were significant concessions. Last night in the other place, the Government wholly accepted the principle of this House’s points by recognising as an exception the Isle of Wight.
Lord Wallace of Tankerness
I remember the vote very well. This House voted most emphatically, and the Government have listened.
We also listened on the matter of the date of the referendum and incorporated into the Bill the other famous amendment of the noble Lord, Lord Rooker. On public hearings, we agreed with the spirit of the points made and changed the Bill.
The other place having considered our amendments, two issues remain outstanding. The first is a decision by the other place, in relation to Amendment 1 and subsequent Amendment 8 that were successfully moved in this place—the former on Report and the latter at Third Reading—by the noble Lord, Lord Rooker. As the House will recall, the purpose of those amendments was to make the referendum result not binding, or indicative, should the turnout fall below 40 per cent. The Government resisted the noble Lord’s amendment on principle and because of the practical difficulties that it posed, to which I shall return in a moment. Following that debate on Report, the amendment was carried by 219 votes to 218. At Third Reading, the noble Lord, Lord Rooker, tabled Amendment 8, which sought to remedy some of the defects in his earlier amendment. As I made clear in my response then, the Government appreciated the making-good spirit behind the noble Lord’s amendment, which the Government accepted pending consideration of the whole issue in the other place.
That consideration took place last night. Our colleagues in the other place voted to disagree with the noble Lord’s amendment by 317 votes to 247—a majority of 70—which, I hasten to add, was a majority that comprised not only the coalition parties but Members from the SNP, Plaid Cymru, the SDLP and the Green Party. This House must now decide whether to insist on the amendments that it passed or to accept the message from colleagues in the elected Chamber.
Before we do so, let me return to the key arguments. I acknowledge that we will hear, as we did on Report, some strong and persuasive arguments from those who favour thresholds. I understand why many in the House found those arguments compelling, but I believe that, in the context of this Bill, they are misplaced and I shall do my best to explain why. I understand that, when considering this issue previously, many of your Lordships felt that the proposal of the noble Lord, Lord Rooker, was reasonable because, unlike most turnout thresholds, his proposal would not definitively have prevented the referendum from being implemented if the threshold was not met. Indeed, the noble Lord suggested that his proposal did not even amount to a threshold.
However, I cannot believe that this is quite right. The amendments would make the referendum result indicative, should the turnout fall below 40 per cent, rather than rule out implementation altogether—I hope that that is a fair assessment of it. However, that seems to me to set a threshold for interpretation of the result. In every real sense, it is a threshold. As the Minister in the other place said yesterday, it would mean that when people go to the polls on 5 May, they could not say that they would get what they voted for if the majority favoured changing the system. By definition, there would have to be further consideration of the matter. We would be saying that people might get what they vote for, provided that Parliament does not overrule or disregard the vote. That is a somewhat dispiriting message to give to the public.
One of our objectives in this and other constitutional reform legislation is to bring back into the political process members of the public who have lost faith. People have become disengaged not least because they feel that the process lacks the ability to deliver what they want. I want noble Lords to consider that, if we imposed a threshold which left in any sort of doubt the effect of people’s votes cast, people might well lose faith because they would not know what the outcome would be if the people delivered a majority yes vote.
Lord Elystan-Morgan
Will the Minister cast his mind back to the 1975 vote on joining the European Economic Community? That was not a mandatory but an indicative vote. There was no protest then of the nature that he describes, so the argument does not follow.
Lord Wallace of Tankerness
My Lords, that vote was not on a threshold. In the one case where there was a threshold, in Scotland in 1979—which I accept involved a different kind of threshold and consequences that were different, but it was nevertheless a threshold—those who of us voted yes felt, for at least the ensuing 18 years until there was a yes vote again in 1997, that we had been cheated. I do not think we treat the electorate well by providing for a situation where they may vote yes but that yes vote may not be translated into action.
Lord Lea of Crondall
Is the noble and learned Lord aware that the Government are very keen to have thresholds for trade union recognition votes?
Lord Wallace of Tankerness
My Lords, I am not sure whether the noble Lord is advocating that kind of threshold.
As I have indicated, one of the most convincing reasons for not having voter turnout thresholds is that, in a referendum which poses a yes/no question, the turnout threshold effectively makes every abstention a no vote. Under the amendments of the noble Lord, Lord Rooker, there might still be this effect because abstentions could mean that a majority yes vote might not be upheld. People might abstain from voting in a referendum for any number of reasons, including apathy and ambivalence. Given that the electorate as defined would also include the dead, by definition such people would not be able to vote. [Laughter.] Noble Lords may laugh, but that is the case. People with double registration, who would be allowed to vote only once, would also be included in the definition of the electorate. Under the amendments of the noble Lord, Lord Rooker, abstentions could mean that a yes vote may not be upheld.
The turnout threshold could incentivise people who favour a no vote to stay at home rather than to vote. The honourable Member Mr Mark Durkan of the SDLP made an interesting speech in the other place last night. He made the case that, in some of the referendums held in the Republic of Ireland, one of the campaign slogans was, “If you do not know, vote no”. He said that if this threshold amendment was to be passed, the message would be, “If you do not know, stay at home”. One of the many admirable things about our political culture in this country is that parties unite to encourage people to vote. Indeed, when my noble friend Lord Phillips of Sudbury proposed an amendment that the various authorities—the Electoral Commission, the counting officers and registration officers—should encourage participation, it was accepted on all sides of the Chamber. The noble and learned Lord, Lord Falconer of Thoroton, subscribed—and no doubt he continues to subscribe—to the principle and the objective that people should be encouraged to turn out to vote. The effect of the amendment could be to encourage people to stay at home or not to bother. “Stay at home on 5 May” is not, I hope, a message that any noble Lord wishes to hear at the hustings in the referendum.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, this is the Lords consideration of Commons amendments. There will be time for noble Lords to make their points in the debate. The noble and learned Lord, Lord Wallace, should be allowed to finish his speech.
Lord Wallace of Tankerness
My Lords, referendums are used only sparingly in this country but they provide an opportunity for people to have their say on issues of significance. We accept that a change of the voting system is an issue of significance. However, holding a referendum sets a higher hurdle for this constitutional change than is often the case in a number of other constitutional changes. To introduce the even higher hurdle of a threshold would dilute the democratic will of the people and would undermine the simplicity and strength of the referendum result. Insisting on the amendments would not only compromise this principle but would render the legal and practical positions far from straightforward.
I do not want to dwell on the technical difficulties of giving effect to the noble Lord’s proposal. Some of those difficulties were aired on Report and at Third Reading, but others were not, including in particular the question of what kind of process would follow a non-binding yes vote. I do not imply criticism of the noble Lord, Lord Rooker, but, although his original amendment appeared simple and straightforward, the detail is far more complex. When we considered its key provisions for the first time, the amendment was agreed to by the slimmest of margins. The other place has now had two opportunities to consider the issue of a threshold and has decisively rejected it on both occasions.
As I have said, the arguments in favour of a threshold are respectable, but they are wrong—not least because it would undermine the principle that, if the majority of the people vote yes, that is what should be delivered; it should not be “yes but, if” and subject to further political wheeling and dealing or Motions in either House. If the people vote yes on 5 May, a yes vote should be delivered. I beg to move.
Amendment A1 to Motion A
Lord Falconer of Thoroton
My Lords, we have had an absolutely scintillating debate on this issue. The issue for the House today is whether we should ask the other place to think again. I believe that that is an interaction of two issues: first, the extent to which we think it has been given adequate consideration already; and secondly, the importance of the issue. As for whether it has been given adequate consideration already, this proposal first emerged as a matter of debate a week ago last Monday, when the noble Lord moved his amendment and it was passed. It went to the other place yesterday. It was one of 104 amendments, of which more than 95 were not debated at all. This amendment was debated for 46 minutes. Of those 46 minutes, more than 30 were taken up by Mr Mark Harper speaking on the issue. I say in parenthesis that there may be times when Mr Mark Harper should emulate his near namesake Harpo Marx rather than Mr Mark Harper himself.
So Mr Mark Harper discussed it for more than 30 minutes, but in the course of his statements he misstated the effect of the amendment on a number of occasions. In relation to a vote in favour with a turnout of under 40 per cent, he said:
“So, even if the public had expressed a clear preference, it would not count”.—[Official Report, Commons, 15/2/11; col. 899.]
That was wrong. The same mistake was made this morning in the Times, which stated in its leader:
“In an attempt to derail the referendum on the alternative vote … system, Labour peers, led by Lord Rooker … and with the connivance of some Conservatives, have defeated the Government on an amendment stipulating that the result of the referendum should only be permitted if at least 40 per cent of the electorate turn out to vote”.
Again, that is wrong.
The position is that if less than 40 per cent of those entitled to turn out do so, it becomes an advisory referendum in exactly the same way. That deals with the critical issue: if there is a derisory turnout in favour of the alternative vote system, is it right that this country should then change its voting system, a voting system for which there would not be a majority in either House of Parliament? The legitimacy of a change of that importance must depend on getting more support for it than a normal change in the law, rather than less.
In my respectful submission to this House, it is pretty plain that this issue has not been properly considered either publicly or in the other place. It is pretty plain that it is a very important issue. It is pretty plain—and I pray in aid the very last speech we heard —that the argument in this House has been comprehensively won by those who support my noble friend Lord Rooker. In those circumstances, we on this side of the House will vote in favour of my noble friend's amendment.
Lord Wallace of Tankerness
My Lords, yet again, we have had a useful debate, with some powerful arguments made. I anticipated at the beginning of the debate that strong points would be made, but, nevertheless, we cannot depart from the central point. We are being invited to include in the referendum process a mechanism whereby, if a majority of the people vote yes, it will not necessarily deliver a yes outcome. I take the point made by my noble friend Lord Trimble. Although my noble friend Lord Forsyth was right to say that the 40 per cent rule in the Scottish referendum in 1979 is not the same as that proposed by the noble Lord, Lord Rooker, nevertheless, the point made by my noble friend Lord Trimble still holds. If people turn out and there is a yes vote, serious resentment would then be felt if somehow that was overturned by this House or the other House. At a time when we are trying to restore trust in the political process, to set aside the majority view of the people would be very serious.
The noble Lord, Lord Rooker, said that his amendment would not affect the outcome. I cannot accept that. It would not affect the result, but it could affect the outcome. Clearly, without his amendment, if there is a yes vote, the outcome is that the order would be laid to implement the system of an alternative vote for the next general election. His amendment could result in a different outcome, because if there was less than a 40 per cent turnout, it would not follow that an alternative vote would be used at the next election. Let us not shy away from the fact that his amendment would affect the outcome of the referendum in that important sense.
I take the point made by my noble friend Lord Lawson, who said that I had argued that it was a “stay at home” amendment. The “no” campaign could very well encourage people to stay at home to reduce the turnout. Because 84 per cent of the country will already be entitled to go to the polls on that day for the Scottish Parliament, the National Assembly in Wales, the Northern Ireland Assembly and local government elections in Northern Ireland and all parts of England bar London, if people want to vote no, we want them to turn out to vote no. We should not be giving people an encouragement to think that if they stay at home, they have the equivalent of a no vote, in as much as the yes vote may not bear fruit.
The Bill offers simplicity, clarity and certainty. It honours the promise to the electorate that they will decide how they return their representatives to the other place. They will do that as the result of a referendum without artificial barriers, without further complex, as yet undetermined, procedures and without political wrangling. It means that when they go to the polls on 5 May and want to vote yes, the outcome will not be “yes, maybe” or “yes if”. If they go to the polls to vote yes, it will count. Whatever the issues on the day are, their vote should be heard, listened to and given effect.
Lord Rooker
My Lords, I am incredibly grateful for the support for the amendment to ask the other place to think again. We have just spent a bit longer on it—seven minutes longer—than they spent on the whole of it last night, including the vote. I have made my point. I beg to test the opinion of the House.
Lord Wallace of Tankerness
That this House do not insist on its Amendments 16 and 19 to which the Commons have disagreed for their Reasons 16A and 19A:
Lord Wallace of Tankerness
My Lords, these amendments relate to amendments that were moved by the noble Lord, Lord Pannick, on Report. The House will be aware that the Members of the other place disagreed with them. The purpose of the amendments is to allow the Boundary Commissions to propose constituencies at plus or minus 7.5 per cent of the electoral quota where they consider that there are exceptionally compelling geographical circumstances or local ties. The Government remain of the view that these amendments should not form part of the Bill. A clear and unequivocal view was expressed in the other place on the matter, which is fundamentally about arrangements for elections to that House. The argument advanced by the noble and learned Lord, Lord Lloyd of Berwick, in the previous debate has an equally persuasive force in this debate, too.
The issue of variation from absolute parity dominated many of our debates throughout our deliberations and in quite a lot of other discussions. I believe that the House has performed an important role in focusing on the issue and indeed in trying to find some way that might command support on all sides of the House. The House made an exception in the case of the Isle of Wight and the Government have accepted that. However, it is important to make a distinction between the exceptions to the parity rule in the Bill that Parliament has decided should be exceptions—the Orkney and Shetland seat, the Western Isles seat and now the Isle and Wight seat—and the exceptions from the parity rule that would be determined by the Boundary Commissions.
It might be helpful if I set out the Government’s objection to the amendment. The Government’s proposal, as I have indicated, is for a 5 per cent range on either side of the UK electoral quota. That, of course, means a band of 10 per cent. We believe that that band has a clear rationale. It is the closest that we can get to achieving equality; I think that everyone recognises that absolute equality and no flexibility whatever would not be a proper way of proceeding. We believe that a 5 per cent range on either side is a way in which we can achieve equality in the weight of the vote and an equal say for voters in the outcome of a general election and at the same time allow the Boundary Commissions, particularly the Boundary Commission for England, to continue their practice of using wards as the building blocks of constituencies.
Let us remind ourselves that wards are drawn up with local factors in mind. We have had many debates about their importance in this regard and it would be unfortunate not to mention in this final set of debates Professor Ron Johnston, who has been quoted considerably. We will give him another airing. In his contribution in his first evidence session before the Political and Constitutional Reform Committee, he noted that much local political activity and engagement is based on the ward structure. The secretary to the Boundary Commission for England, in his evidence to that same committee, said that under the rules in the Bill it would be possible to allocate constituencies using wards in the majority of cases. While an absolute prohibition on splitting wards would not be appropriate, not least because in some cities the wards are so large that it might make more sense for local communities to be divided, we accepted arguments made in this House that the commissions should be explicitly empowered to take wards into account. Indeed, we tabled an amendment to that effect.
As I indicated, wards offer a clear rationale for striking a balance between the competing principles of one elector, one vote and local flexibility at 5 per cent of the quota. The figure of 7.5 per cent lacks that objective rationale and would increase the variation that was permitted, compromising more the principle of equally weighted votes in doing so. In particular, it is worth remembering that a 7.5 per cent variation on either side would not resolve the issue of the exceptional constituencies that has been raised in a number of our debates. It would not preserve the Argyll and Bute constituency and it would not guarantee the Tamar as a border, the borders of historic counties or the Isle of Wight comprising whole constituencies.
In debates, your Lordships concluded that there was a special case for treating the Isle of Wight as an island constituency. At the time, the Government expressed a different view, but we have now recognised the strength of cross-party support and have brought forward provisions to treat the island in a manner that is consistent with other island exceptions in the Bill. Therefore, Parliament, as I have indicated, has concluded that the Isle of Wight is a special case. We believe that that is the right approach.
The alternative approach before us would place the decision in the hands of the Boundary Commissions and open the door to further variations in a way that could cause practical difficulties for the review. We do not agree that the use of discretion will be as unusual as perhaps some of those who support the amendment think it might be. The noble Lord, Lord Pannick, sought to reassure us on this point on Report and has drafted the amendment with the benefit of his considerable expertise and in such a way as to protect commissions from successful judicial review. However, that is not the same thing as limiting the use of the discretion, as those who have practical experience of the way in which reviews operate and of the role played by political parties would testify.
The flaws in the 1986 legislation and the merits of the rules in the Bill as drafted were set out clearly in the British Academy report on the Bill. Those experts, who have the benefit of many years of practical experience in these matters, said that,
“the rules set out in the Bill are a very substantial improvement on those currently implemented by the Boundary Commissions (they have a clear hierarchy and are not contradictory)”.
Our concern is that, at a stroke, the clarity and fairness of the rules would be undone by this amendment, since theoretically there could be 600 claims for exceptional local ties. Even if there were not 600 claims, one could still anticipate a considerable number. In at least one part of the debate yesterday in the other place, one could already hear some of the arguments that were beginning to be worked up.
Local ties are genuinely important to communities. That is why, within the 10 per cent range that is provided for in the Bill, the Boundary Commissions can take them into account, as they always have. However, we all know, and the evidence is clear, that these are the means by which parties disguise arguments in their electoral interests. As we know from Professor Ron Johnston’s evidence to the Political and Constitutional Reform Committee in October last year, these inquiries were “dominated by political parties” and,
“very largely an exercise in allowing the political parties to seek influence over the Commission’s recommendations”.
There is also the risk of complex and often unknown knock-on effects; I think I described some of them when we debated this on Report. The knock-on effect of flexibility is applied, and not necessarily to the immediately neighbouring constituency. Again, I reference Professor Johnston, who has many years of experience in this. When studying the practical impact of the rules in the 1986 Act, he noted that it would be a problem, especially if the Boundary Commission proposed constituencies for an area within the 5 per cent constraint and then someone came up with an extremely compelling argument for 7.5 per cent, and that the knock-on consequences could ripple right through a region, indeed right through a country. He said that the Boundary Commission would then have to re-jig all the constituencies in that region, which would undoubtedly delay the process. Would they make the deadline?
To those who argue that the same argument applies to a 5 per cent band of tolerance as it does to 7.5 per cent, I would say that that is true up to a point, but the Government propose from the outset that all areas will be treated the same and that the options for boundaries in a specific locality will therefore be available to all those involved. If a change is made, particularly at later stages, under our rules it would still fall within the original 95 to 105 per cent range, but that would not be the case if a knock-on effect arose from a tolerance of up to 7.5 per cent in exceptional circumstances, because by doing that the envelope would be made smaller in some respects and the other constituencies would have to fit into that smaller envelope.
There is also an important distinction of principle to be made. The amendment asks the commissions to create a special band of electors who are outside the rules that apply to everyone else and whose votes might therefore carry more or less weight than elsewhere. That stands in contrast, as I have indicated, to the approach that has been put forward by the Government, which ensures that the overwhelming majority of UK parliamentary constituencies are treated on an equal footing, except those exceptions that Parliament has decided—the ones originally in the Bill and the one proposed by this House on the Isle of Wight, which has been accepted by the Government and voted for in the other place.
In conclusion, I believe that our House has had the opportunity to consider the amendment put forward by the noble Lord, Lord Pannick. It has been an important issue. The noble Lord, Lord Pannick, I think, would acknowledge that quite a lot of effort was made to see whether we could find a way forward. In that respect, a considerable amount of work was done—not only during the passage of the Bill through your Lordships’ House—in response to your Lordships’ clear views. The other place has also now had the opportunity to consider this amendment. A clear view has been expressed in the other place. Members of the other place have considered this and there were majorities of 67 and 71 respectively rejecting these amendments. The other place has expressed a clear view on these matters, which relate to its function and its membership. Your Lordships’ House asked it to think again. It has done so. I therefore urge caution before we ask it to consider the issue once more. I beg to move.
Amendment B1 to Motion B
Lord Falconer of Thoroton
This is also an important debate and, again, the question is whether or not we should ask the other place to think again. We on this side of the House think it is right that we should do so.
Again, there is an interaction of two issues: first, the extent to which the matter has been properly considered by the other place; and, secondly, the extent to which it is an important issue. On whether the Commons has had a proper opportunity to consider the issue, this debate was an hour long in the other place. In winding up for the Opposition, Mr Sadiq Khan pointed out that Mr Mark Harper had taken up two-thirds of the time available. Right across the debate there was the repeated theme that the Government were not listening and that there was not clarity about what was happening. I shall not quote from Labour Members but from coalition Members.
When addressing Mr Mark Harper, Mr Mark Field said:
“Does my hon. Friend not appreciate the concern that when we are discussing whether there should be any variance, be it of 5% or 7.5%, it is important to know how the process operates? … If we do not have at least a basic understanding of how it will operate, it will be difficult for us to make any value judgment as to where the variance should lie, which is the subject of amendment 19”.—[Official Report, Commons, 15/2/11; col. 864.]
That is what we are now talking about.
Mr Andrew George, a Liberal Democrat Member, said:
“Given the nature of some of the questions that the Minister has been asked in the past few minutes, does he agree that perhaps there should be an opportunity to review the wisdom of going ahead on the basis that he is describing?”.
Later again, the same Member—a coalition Member—went on:
“My hon. Friend is absolutely right, but I think that the inflexibility of the proposals will result in much more significant changes across the country … All I am asking is that the Government take a less intransigent and more flexible approach”.—[Official Report, Commons, 15/02/11; cols. 865-8]
One Labour Member is worth quoting. Mr Paul Murphy, who had a distinguished career and was Secretary of State for Wales, said:
“I do not understand why the Government and the Minister are being so rigid and fundamentalist on this issue”.— [Official Report, Commons, 15/02/11; col. 869]
The mood around the House, from reading Hansard, is that inadequate answers were given, that the Government were being unnecessarily rigid and that there was no proper understanding of how it would work. That is perhaps not surprising, because this amendment first saw the light of day—in the sense of it being passed by this House—a week ago today. The material in the other amendment is going back to the other place for further consideration. In my respectful submission, it would obviously be wrong if this did not go back with it.
Is this an important amendment? In my respectful submission it is. I do not know how many of your Lordships were present when the noble Lord, Lord Armstrong, told the story of Procrustes; or when the noble Lord, Lord Pannick, went through the detail of the work that he had done with the Government to get to a place with this extra 2.5 per cent. He was the only person in that debate—including the Government—who had done the work and thought through what the consequences were. For example, in relation to the point made by the noble Lord, Lord Butler of Brockwell, there are some wards that are so large that they will not be protected by 7.5 per cent, so obviously there will be even more wards that will not be protected by 5 per cent. The answer to the question put by the noble Lord, Lord Butler of Brockwell, is that more wards will have to be broken up under 5 per cent than under 7.5 per cent. I hope that blocks the retreat for the noble Lord, Lord Butler of Brockwell, at this particular point.
As far as the overall position is concerned, the noble and learned Lord, Lord Wallace of Tankerness, referred to the academics and the people involved in the area. Professor Johnston, the leading academic in relation to this issue, said he did not normally support public inquiries; however, what the noble and learned Lord, Lord Wallace of Tankerness, did not say was that he thought that, in the context of such a far-reaching change as is envisaged by this boundary review, there is a strong argument for the ability to make changes. Robin Gray, the former chairman of the Boundary Commission, said that some flexibility in addition to the 5 per cent was required.
In relation to the issues that were being considered in the previous debate, we considered the issue of judicial review in detail. Of course I respect the noble and learned Lord, Lord Mackay of Clashfern, in relation to the issues that he raised, but the noble and learned Lord, Lord Woolf and the noble Lord, Lord Pannick, both expressed the view that most judicial reviews, even on this, would fail. I also make the point that the courts, in looking at these issues, would be well aware of the deadline, which would be sometime in October 2013. These issues would arise during 2012, so the courts, in my respectful submission, would be well able to have timetables that would ensure that the deadline of October 2013 was met. They would not be faced with these issues late on in the process, but much, much earlier on. The application for leave for judicial review would take place at such a time that the court could deal with them quite smartly. The noble and learned Lord, Lord Scott of Foscote, made the point that hopeless applications for judicial review take time—which is absolutely true—but a court keen to meet a deadline set in statute would in my respectful submission be able to deal with that.
The final point dealt with in the debate in the Commons was the statement that it was not possible to craft a genuine exception—a point I should say that was not made by the noble and learned Lord, Lord Mackay of Clashfern, in this debate; but which was referred to by Mr Mark Harper, who cites a case called Al Rawi and others v Security Service, a case about the extent to which you can have a special procedure for terrorists. It is hard to imagine a case more different than the sort of case the courts would be dealing with here, and it may be an indication of the difficulty in finding support for that proposition. I do not ask that this House reaches a firm conclusion; all I say is that it is the right thing to do for this House to ask the other place to think again. That seems very little to ask. We support the noble Lord, Lord Pannick.
Lord Wallace of Tankerness
My Lords, once again I thank noble Lords who have participated in this debate on what is an important issue, as has been recognised many times during the passage of the Bill through your Lordships’ House. I start by picking up the points made by both the noble Lord, Lord Pannick, and my noble and learned friend Lord Mackay of Clashfern with regard to the lengthy delays in responding both to the report from the Political and Constitutional Reform Committee in the other place and to your Lordships’ Constitution Committee. I am not in a position to offer any explanation, but I do recognise that the time that was taken cannot have assisted either House and I therefore wish to apologise. Responding to the point made by my noble and learned friend, I will certainly take it upon myself personally to make sure that the comments made in your Lordships’ House—and indeed I will reflect the force of them too—will be conveyed to colleagues.
It has been argued that the role of the House in asking the other place to think again, and indeed in asking the Government to think again, has been well discharged in respect of these amendments. As has been acknowledged, the Government did engage to see whether there were ways in which we could find common ground and indeed there has been an opportunity for consideration in the other House. However, before inviting the House to send the amendments back again for further consideration, it is important that we perhaps reflect as to what this supreme constitutional principle that we are asking the other place to think about is. Is it just 2.5 per cent? One of the principles of the Bill, referred to by my noble friend Lord King of Bridgwater, is that of equal votes—one vote one value—as best we can throughout the United Kingdom. That is an important principle and one we believe is reflected in the Bill and which, bar the two issues that are now outstanding, has been accepted by both Houses. It is not slavish arithmetic, as I sought to explain. The 5 per cent variation, which gives 10 per cent in all, was not just conjured up—indeed my noble friend thought that it should have been lower than that. In response to the question from the noble Lord, Lord Butler of Brockwell, we believe that the 5 per cent is the closest we can get to achieving equality in the weight of a vote—I am repeating myself but it is important to do so—and an equal say for voters in the outcome of a general election while allowing the Boundary Commission for England to continue its practice of using wards as the building blocks of constituencies in England. I remind the House that the wards themselves are drawn up with local factors in mind.
The contribution of the now much quoted Professor Johnston, in his first session before the Political and Constitutional Reform Select Committee, noted that much local political activity and engagement was based on the ward structure. Crucially, the secretary to the Boundary Commission for England, in his evidence to that committee, said that under the rules in the Bill it would be possible to allocate constituencies using wards in the majority of cases. I did say, in my opening remarks, that an absolute prohibition on splitting wards would not be appropriate because there are some places—Birmingham is a case in point—where some wards are so large that it might not be possible not to split them. In these cases, the wards may even be so large that it might make more sense for local communities for them to be broken up to get a more readily identifiable sense of community. The basic point is that in the vast majority of cases it is believed that wards will be the building blocks for the constituencies in England. That is why the 5 per cent was chosen. We have yet to hear, with all due respect, a rationale for 7.5 per cent. I have sought to explain why 5 per cent is right and why there is a rationale behind it, but we have not yet heard a clear rationale for 7.5 per cent.
Lord Wallace of Tankerness
That this House do not insist on its Amendments 17 and 20 to which the Commons have disagreed, and do agree with the Commons in their Amendments 20A to 20E in lieu.
Lord Wallace of Tankerness
My Lords, during the passage of the Bill through your Lordships’ House there was a very important Committee debate on the Isle of Wight. As I indicated on behalf of the Government at that time, the fundamental principle underpinning the Bill is that one elector should mean one vote. At that stage the Bill was subject to only two exceptions. It was our view that a cross-Solent constituency, comprising part of the Isle of Wight and part of the mainland, was practicable as the island does not have the challenging geography of the other preserved constituencies. However, the arguments made in that debate, not least by my noble friend Lord Fowler, carried the day in this House. It did so by some margin and with considerable cross-party and Cross-Bench support. This undoubtedly gave us reason to reflect, and we have come to the view that the case against a cross-Solent constituency is persuasive.
That was the objective of the amendment proposed by my noble friends Lord Fowler and Lord Oakeshott. However, their amendment left open the question of whether there should be one seat or two on the island. That was left up to the Boundary Commission for England. There are practical reasons why we have reservations about that. The noble Lords’ amendment did not provide the Boundary Commission for England with any instruction on how it should determine the number of seats to be allocated to the Isle of Wight. Nor was any consequential amendment tabled to deal with the matter. The Government consider that if an exception is to be made for the Isle of Wight, it would be consistent and fair for it to be made on the same basis as for the other preserved constituencies in the Bill.
The amendments passed by the other place following a Division provide certainty for the commission by requiring that the island has two seats, and by taking those constituencies outside the formulae for the allocation of seats to parts of the United Kingdom and the calculation of the electoral quota elsewhere in the Bill. Two seats of around 55,000 electors each would be much closer to the electoral quota than one seat of around 110,000. That is consistent with the underlying principle of equality. Furthermore, I understand that the population of the Isle of Wight looks set to increase. Two seats would be likely to move closer to the quota, whereas one seat would move further away from it. It is practical and, as the honourable Member for the Isle of Wight in the other place confirmed in his speech yesterday, it respects the wishes of those who mounted a vocal and, as we have seen, effective campaign to prevent a cross-Solent constituency. I beg to move.
Lord Fowler
My Lords, I will be brief. I thank the Government for listening to what the House of Lords said on my amendment and for the decision that they have taken. My amendment was special in that we were dealing with an island that has only ferries connecting it to the mainland. I said in moving the amendment that it would allow there to be one or two constituencies on the Isle of Wight. The Government have decided to be specific and make two, and that is the right decision.
The only other options would have been to have one massive constituency on the Isle of Wight or, alternatively, a cross-Solent constituency. That cross-Solent constituency would have meant there being one constituency on the Isle of Wight itself, with the remaining 35,000 electors put together with part of, say, Portsmouth on the mainland. It would be divided by 10 miles of the Solent, with expensive ferries being the only means of communication. The constituency would be partly on the mainland and partly on the island. It is all very well to talk about community but the natural centre of that constituency would have been in the middle of the sea. There is no doubt that such a solution was rejected decisively by the people of the Isle of Wight. Eighteen thousand people signed a petition against it. The councils were against it, as were all the parties—the Liberal Democrats, Labour and the Conservatives.
In our previous debate the Minister suggested, without overstating his case, that there were some who had written in support of a cross-Solent solution. Very courteously, as always, he offered to investigate how many had done so. Unfortunately his reply was not entirely convincing. In his letter of 7 February, he said:
“You asked how many representations received about the Isle of Wight were in favour of the Bill’s original proposals and how many were against. The Cabinet Office does not record correspondence in a way that would enable us to readily identify whether the authors were for or against particular issues”.
Perhaps that is just as well in the Minister’s case, although it raises a few questions about the value of writing to the Cabinet Office on any issue. To be fair, the Minister went on to say that he,
“was not seeking to claim that there were an equal number of representations received both for and against the Bill’s proposals”.
The Minister was absolutely right. I congratulate him and the Government on reaching the decision that they have.
It has been a very long process but the Government have listened at the highest level and the Commons has decided. I thank all those concerned with this campaign, particularly the excellent Member of Parliament for the Isle of Wight, Andrew Turner, who has worked long and hard to achieve this outcome. No one could have done more. I also thank my supporters in the vote on 19 January from around the House—from all parties and the Cross Benches—including those who found pressing engagements when the vote was called and abstained. I thank the opposition Front Bench; it is the first time in my political career that Labour Whips have provided Tellers for any Motion or piece of legislation that I have introduced over the past 40 years.
I make just one further comment. Given the progress of the Isle of Wight debate, no one can be happy with the heavy timetabling in the other place. I know that it is inherited from the previous Government but it prevented the island’s MP putting the issue to the vote before it came to the Lords, and virtually prevented him making a speech. I hope that the Government will now look anew at that procedure. Having said that, this amendment, which the Lords have carried and the Government have accepted, seems to me to carry out the traditional function of asking the Commons and the Government to think again. They have done so and I congratulate them on their good sense and on the outcome.
Parliamentary Voting System and Constituencies Bill
Lord Wallace of Tankerness Excerpts(13 years, 9 months ago)
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Lord Falconer of Thoroton
I accept the noble Lord’s implied, or indeed express, criticism. My wording is not good and that is my fault. It would have been much better if the amendment had said: “Party election broadcasts during the referendum period will not be broadcast if they support any particular side in the referendum on the voting system”. It would have been much simpler if I had just said that, and then one would have known where one stood.
On whether the proposition put by the noble Lord in his question would fall foul of my amendment, if the six-week period is within the referendum period, then it would. I would have to check with the Minister because I am not sure whether the six-week period is within the referendum period. However, if we assume that it is within the referendum period, then saying, “We are strong supporters of constitutional change”, implies support, I would have thought. I beg to move.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, has indicated, this matter has been debated in Committee and on Report, and it is clear that the Government have taken a different view from him. However, I accept that it is helpful for us to be able to have a further exchange on the issue.
The Government believe that the framework that is set out in this Bill and indeed in other legislation is sufficient for this referendum. Perhaps I can establish some common ground. We agree with the principle that party election broadcasts should not be used as referendum campaign broadcasts. However, Section 127 of the Political Parties, Elections and Referendums Act 2000 prevents the main purpose of any broadcast other than a referendum campaign broadcast being to procure or promote an outcome in a referendum, which we believe is sufficient reassurance. In other words, it ensures that a party election broadcast does not become a referendum campaign broadcast. I think there is common ground here and that the mischief which the noble and learned Lord identified—although I would not necessarily accept it—is an incidental part of an election broadcast in which one side or the other is endorsed.
Our view is that there is clear merit in maintaining some flexibility in this area while acknowledging the clear limits already imposed by Section 127. Such flexibility might enable, for example, the inclusion of a brief statement during a party election broadcast that referred to the referendum and to whether the party supported a particular outcome. Although the noble and learned Lord did not say it, I understand from him that he would find nothing wrong with the existence of the referendum being referred to or indeed with an encouragement to vote; it is the endorsement of a particular yes or no position that he seeks to address.
If such a reference was an expression of a party’s wider policy on matters—for example, on political reform—that were of relevance to the elections on 5 May, one might say that precluding mention of that position in a related election broadcast could have an adverse impact on campaigning for a particular party in those elections. To pick up on the point made by my noble friend Lord Phillips of Sudbury, I can confirm that six weeks would be within the relevant campaign period for the referendum. I understood the noble and learned Lord to agree with the proposition that if in that broadcast a party was to support, let us say, constitutional reform—I do not think that my noble friend even specified a particular outcome of the referendum—that would fall foul of the law if his amendment were passed.
I ask the House to consider that to legislate to forbid a party to articulate its legitimate policy position is an important step to take.
Lord Campbell-Savours
I have an important question for the Minister as to what happens during the broadcast. He referred to flexibility. He is a Liberal Democrat Minister in the coalition. Will he assure us that the flexibility to which he referred will preclude in a Liberal Democrat broadcast any reference to the fact that more than 50 per cent of the electorate would be required to secure the election of a Member of Parliament? In other words, if there is flexibility, I seek to be assured that it in no way leads to misleading statements being made on the 50 per cent requirement.
Lord Wallace of Tankerness
I have two points in response. Speaking as a member of the Administration, I am in no position to offer detailed assurances on the content of a party political broadcast when that party is only one part of the coalition. However, I shall indicate what the dynamic might be in how the broadcasting authorities treat this issue and, indeed, are doing so—it is not hypothetical.
We believe that it is ultimately a matter for the broadcasters to see that the rules in Section 127 on the content of party election broadcasts, together with relevant guidance issued under the Communications Act 2003, are adhered to. That is the Government’s position. I accept that the noble and learned Lord might disagree with it, but we have not yet heard any compelling reason to convince us that that stance is wrong. The proposed approach would in any case still require broadcasters to take a view on whether the proposed content in a broadcast complied with the new rule. Broadcasters would have to make some sort of judgment as to whether the content of a party election broadcast indicated a preference for a particular referendum outcome. Such a judgment might well be in the field of whether a general endorsement of constitutional reform fell within that or whether the content had to be much more specific, endorsing a yes/no position.
As I indicated on Report, the chair of the Broadcasters’ Liaison Group has already written to the political parties, drawn their attention to Section 127 of the PPERA and asked them to contact him if they intend to include any reference to the referendum in a party election broadcast in order to ascertain whether any reference crosses the line into Section 127 territory and could in the group’s view be unlawful. We believe that these lines of communication will clarify how the legislative framework will apply in the context of the combination of the referendum with other polls on 5 May. The framework for regulating party election broadcasts sits under the Communications Act 2003 and within the broadcasters’ guidance. We believe that that, combined with the Section 127 provisions in PPERA 2000, provides the necessary clarity.
That said, the Government acknowledge the important issue that has been raised by the noble and learned Lord in tabling this and other amendments at earlier stages. The PPERA framework for referendum regulation was introduced by the previous Government and, despite the confidence that I have expressed in the legislation, aspects of the framework might need a longer-term refresh. I reassure the noble and learned Lord that the Government will reflect further on these points in the light of the referendum and the experience of the poll on 5 May. In the mean time, I urge the noble and learned Lord to withdraw the amendment.
Lord Falconer of Thoroton
I am grateful to the noble and learned Lord for his speech, but there is a fundamental problem with it; he referred to flexibility, but the amendment seeks to establish the principle that in a party political broadcast you should not be able to support an outcome in the AV Bill. The Electoral Commission says that it supports the intention behind the amendment, but goes on to say that it is not sure that it is necessary to achieve the intended outcome because of the main purpose issue in Section 127. Surely it is better that there should be clarity about what is and is not allowed—and what should not be allowed is support for an outcome in a party political broadcast, because that would drive a coach and horses through the expenditure limits. I seek the opinion of the House.
Lord Wallace of Tankerness
My Lords, the amendment of the noble Lord, Lord Rooker, seeks to clarify two points in relation to the amendment in his name carried at Report stage; namely, that if fewer than 40 per cent of the electorate vote in the referendum, the vote shall not be binding. The noble Lord, Lord Rooker, indicated that the amendment was directly consequential on the amendment passed on Report. Paragraph (a) of this amendment defines “electorate” in reference to Clause 2, which sets out who is entitled to vote in the referendum. The noble and learned Lord, Lord Falconer, says that the amendment was unnecessary. We on the other hand think that it is to some degree helpful to clarify what defines the electorate for the purposes of the referendum. It would exclude European Union nationals who can vote in some elections. It obviously includes Peers, who would not be entitled to vote at a Westminster parliamentary election.
However, this is more of a political point, because there is no way of dealing with it otherwise. The noble and learned Lord is absolutely right to say that those who come onto the roll, perhaps as a result of a campaign encouraging people to register, would be included in the electorate, but that account could not be taken of, for example, undergraduates—who, as the noble Lord, Lord Rooker, said, might be registered at two places but can vote only once—and those who have died since the canvass which took place perhaps some five months earlier. Those points are perhaps more of a political, rather than a technical, nature.
Lord Maxton
My Lords, I accept the point about people who have registered more than once in separate constituencies, but it is very demanding on their honesty. What checks will be made on whether they have voted more than once in the referendum? If any check is made, what action will be taken against someone who has voted twice?
Lord Wallace of Tankerness
My Lords, I cannot indicate what checks are likely to be made. It is obviously easier to check if that happens in the same constituency, but if a person is registered in two far-flung parts of the country, it is not readily obvious as to what check can be made, other than the fact that voting twice is of course illegal. Therefore, if it were somehow proved that that had happened, the person would have to face the consequences set out in the schedule to the Bill.
Paragraphs (b) and (c) of the amendment define 100 per cent turnout as the total number of people entitled to vote in the referendum under Clause 2, and “vote” as “votes counted” under Part 1 of the Bill. As the noble and learned Lord, Lord Falconer of Thoroton, indicated, that means that the turnout figure would not include those who had turned out to vote on the day, but whose votes, for whatever reason, were deemed to be void. That is because paragraph 42 of Schedule 2 to the Bill specifies that void votes should not be counted, albeit they are recorded by the counting officer.
If eligible voters go to the polling station on 5 May and vote, they have in fact turned out, and should be included within the turnout figure, even if their vote is subsequently deemed to be invalid. The noble and learned Lord agreed with that proposition.
The amendment is not ideally worded. It is silent on whether a single independent body should be made responsible for verifying the turnout and whether the 40 per cent figure has been met. It leaves it unclear whether that would be left to the Government or would be a matter for the Electoral Commission. However, despite the drafting issues, it would not be helpful for us to be obstructive, so it will be for Members of the other place to decide whether the amendment and the one that it supports are acceptable.
Perhaps the most important issue raised by the amendment is not what it does but what it does not do. It does not address the problem with the original amendment because it does nothing to change Clause 8(1), which still imposes a legal obligation on the Minister to implement the alternative vote. I fully accept the explanation of the amendment given by the noble Lord, Lord Rooker—that the intention is to make the referendum result non-binding if a 40 per cent turnout is not reached. He is right that it would not be fatal. Nevertheless, it is an important and significant provision. The effect of retaining Clause 8(1) is that the obligation to implement AV will apply even if the turnout is less than 40 per cent.
I am sure that that is not what the noble Lord intended by his amendment. I recognise that this matter should be dealt with before the Bill becomes law. We understand and share the concern that any statutory provision should be technically effective. We are considering the way forward on this issue and will set out our plans when the Bill returns to the other place. It will be for Members there to decide tomorrow how to respond when considering your Lordships' amendments. On the basis that the amendment goes some way to clarifying the position in the light of the earlier amendment, it is not our intention to resist it.
Lord Rooker
I am extremely grateful for that response from the Minister. I do not mind whether or not spoiled votes are counted as long as we have clarity and rules.
On Clause 8(1), the “may/must issue”, I fully accept that if this stayed in the Bill according to the wish of the other place, the Government would have to make available, in the exchange of amendments, the discretionary part for the constraint—it is not a threshold—to be made to work. That is all that I seek to do. If it comes down to having an argument about whether or not someone has died in order to determine whether we should have a major change to our constitution, we will have a serious problem on our hands. I am extremely grateful for the way that the Minister has dealt with the amendment. I beg to move.
Lord Pannick
My Lords, the amendment is entirely consequential on the amendment to Clause 11 that was carried on Report last Wednesday. It is a tidying-up amendment. I hope that it is entirely uncontroversial.
Lord Wallace of Tankerness
As the noble Lord, Lord Pannick, indicated, this is a consequential tidying-up amendment following the amendment that was passed last week. We had a good debate on the issues. The House made its decision and we share the concern that any statutory provision should be technically effective. The Government are considering the way forward on this issue. We will set out our plans when the Bill returns to the other place tomorrow and your Lordships' amendments are considered. On that basis, the Government do not object to the amendment.
Lord Brooke of Sutton Mandeville
My Lords, the amendment responds to the indication given on Report by the noble and learned Lord, Lord Wallace, that an accommodation could be achieved on the treatment of the City of London. Noble Lords who followed the exchanges on the City of London, in Committee and on Report, will know that the point at issue is the inclusion of the whole of the City of London in one parliamentary constituency. This requirement of current legislation is noticeably absent from the Bill. My earlier amendment sought to deal with the issue by requiring the whole City to be included in one constituency so far as practicable. A qualification was included to avoid an absolute obligation that might have collided with the allocation method enshrined in the Bill. I also related the requirement to the City being seen as a “special authority” to emphasise its individuality. The noble and learned Lord the Minister acknowledged that individuality in his response on Report, and I am wholly content not to include that reference in the amendment which I have now tabled in agreement with the Minister.
I shall briefly explain the effect of the amendment. It adds a reference to the City of London as a whole into the interpretation of “local government boundaries” in rule 11 of Schedule 2, which is inserted by Clause 11 of the Bill. That, in turn, makes the City of London as an entity a factor for the Boundary Commission to take into account in any future review. Unlike a number of amendments with which your Lordships’ House has been concerned, this is about keeping a small area with particular attributes but few parliamentary electors together in what will inevitably be a much larger single parliamentary constituency. That is why reference in the amendment to the City of London as a whole but not to its sub-divisions, such as wards, is so relevant.
One point not covered in the amendment is the inclusion of a reference to the City of London in the name of the parliamentary constituency. Although I appreciate that the question is ultimately a matter for the Boundary Commission, it is, I think, in order for me to invite the Minister to express a view on the appropriateness of such a reference in any future constituency which includes the City.
Finally, it would be remiss of me not to record my gratitude to all the Members of your Lordships’ House across the Chamber who have actively supported this case. In particular, I thank my noble friend Lord Jenkin, who has supported me throughout, the noble Baroness, Lady Hayter, who earlier tabled her own amendment, and finally my noble friend Lord Newby, who also added his name to my original amendment. I beg to move.
Lord Wallace of Tankerness
My Lords, as my noble friend Lord Brooke of Sutton Mandeville has explained, the amendment adds the boundaries of the City of London to the local authority boundaries which the Boundary Commission for England may take into account when drawing up constituencies. I thank my noble friend for his amendment and for the interest which he and the other noble Lords and the noble Baroness, together with others, have shown in this matter, and for their persuasiveness in pressing their argument. I believe that his proposed wording provides the best way of including the boundaries of the City in the commission’s considerations, and the Government are content to accept the amendment.
My noble friend raised the question of the name of the constituency and indicated that it is of course a matter for the Boundary Commission to decide. I see a very good argument for including the City by name in any constituency that it falls within, and no doubt those who feel strongly about the matter will be able to make representations to that effect to the commission as part of the review process. Therefore, I am pleased to be able to support my noble friend’s amendment.
Lord Falconer of Thoroton
My Lords, we support the amendment and we supported it previously. The noble Lord invited our appreciation of the amendment. I expressly appreciate the amendment for its drafting and also its mover who has spent a lifetime supporting participation of this sort. He thoroughly deserves to get his amendment.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Phillips for the amendment and I join in the general approbation of it. For all the difficulties that we have had during parts of this Bill, a common theme in all parts of the Chamber has been the importance of participation in the referendum process. As my noble friend indicated, this paragraph of the schedule does that anyway but he has highlighted the way in which it can be done even better. I am grateful to my noble friend for the constructive discussions we have had on this and the result of those is that the Government agree that the proposal adds useful clarification to the Bill, particularly by emphasising the importance of co-ordination and co-operation. I am pleased to urge the House to accept my noble friend’s amendment.
Parliamentary Voting System and Constituencies Bill
Lord Wallace of Tankerness Excerpts(13 years, 9 months ago)
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“(1) Once a Boundary Commission have decided what constituencies they propose to recommend in a report under section 3(1)(a) above—
(a) the Commission shall take such steps as they think fit to inform people in each of the proposed constituencies—(i) what the proposals are,(ii) that a copy of the proposals is open to inspection at a specified place within the proposed constituency, and(iii) that written representations with respect to the proposals may be made to the Commission during a specified period of 12 weeks (“the initial consultation period”);(b) the Commission shall cause public hearings to be held during the period beginning with the fifth week of the initial consultation period and ending with the tenth week of it.(2) Subsection (1)(a)(ii) above does not apply to a constituency with respect to which no alteration is proposed.
(3) Schedule 2A to this Act, which makes further provision about public hearings under subsection (1)(b) above, has effect.
(4) After the end of the initial consultation period the Commission—
(a) shall publish, in such manner as they think fit, representations made as mentioned in subsection (1)(a) above and records of public hearings held under subsection (1)(b) above;(b) shall take such steps as they think fit to inform people in the proposed constituencies that further written representations with respect to the things published under paragraph (a) above may be made to the Commission during a specified period of four weeks (“the secondary consultation period”).(5) If after the end of the secondary consultation period the Commission are minded to revise their original proposals so as to recommend different constituencies, they shall take such steps as they see fit to inform people in each of those revised proposed constituencies—
(a) what the revised proposals are,(b) that a copy of the revised proposals is open to inspection at a specified place within the revised proposed constituency, and(c) that written representations with respect to the revised proposals may be made to the Commission during a specified period of eight weeks.(6) Subsection (5) above does not apply to any proposals to make further revisions.
(7) Steps taken under subsection (4) or (5) above need not be of the same kind as those taken under subsection (1) above.
(8) A Boundary Commission shall take into consideration—
(a) written representations duly made to them as mentioned in subsection (1)(a), (4)(b) or (5)(c) above, and(b) representations made at public hearings under subsection (1)(b) above. (9) Except as provided by this section and Schedule 2A to this Act, a Boundary Commission shall not cause any public hearing or inquiry to be held for the purposes of a report under this Act.
(10) Where a Boundary Commission publish—
(a) general information about how they propose to carry out their functions (including, in the case of the Boundary Commission for England, information about the extent (if any) to which they propose to take into account the boundaries mentioned in rule 5(2) of Schedule 2 to this Act), or(b) anything else to which subsection (1), (4) or (5) above does not apply,it is for the Commission to determine whether to invite representations and, if they decide to do so, the procedure that is to apply.””
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, these amendments provide for public hearings as part of the Boundary Commission’s consultation on its initial recommendations.
In Committee last week, in response to the amendment put forward by the noble Baroness, Lady D’Souza, I undertook on behalf of the Government to bring forward amendments for a public hearing process, enabling an opportunity for the public and the parties to express their view in a way that the timetable for completion of that review is met. These amendments, which are in the name of my noble friend Lord McNally, fulfil that commitment.
Perhaps it will be useful if I start by setting out how we arrived at this position. Clearly it is vital that all those with an interest in the proposals have an opportunity to have their say. In the Bill, as it was brought from the other place and as it now stands, there is no provision at all for any oral participation. We believe, however, that the boundary reviews have taken far too long in the past. The last review in England took six years and seven months to report.
Let me be absolutely clear why the Government believe that is wrong. It is not simply a question of impatience or change for its own sake. Constituency boundaries—and this is at the heart of this part of the Bill—are the means by which representation in the other place is distributed. The point has been made on all sides of the House in debates on this Bill that they must accurately reflect that representation. That means work to increase the registration rate. The same principled concern applies to making sure that boundaries are up to date and reflect where people live, not where they used to live. If we took no action, the next boundary review may not take effect until 2020. This would mean that in 2018 there will be electors who reach voting age and register to vote who will not even have been born when the basis of the pattern of representation in the Commons was determined. That is unfair and unacceptable and drives inequality in the weight of a vote. It is one of the key principles that the Bill must address.
When we were drafting these proposals it became clear that the existing system of local inquiries was not fit for purpose. Yes, it satisfies the urges of political parties to put their case at considerable length at times, but it was rarely successful in engaging the general public. I cannot make this point forcefully enough to the House. We have, many times in these debates, traded quotes across the Dispatch Box in a bid to claim that the weight of academic evidence supports our case. However, it is clear that the academic literature supports the view, first put forward by leading expert in the field Professor Ron Johnston in 2008, that inquiries are “far too elaborate”. I accept—I think the noble and learned Lord, Lord Falconer of Thoroton, quoted this in our first debate on this—that Professor Johnston made a telling observation to the Political and Constitutional Reform Committee when he conceded that there was an argument against his view on the limited value of the public inquiry stage when he told that committee:
“This time you are going to have much more where the local people are going to be concerned because suddenly the pattern of representation is going to be very different from what they have been used to for a long time”.
The observation has been made on all sides of the House that there might indeed be a far greater degree of interest in the next review on the part of local people, because there will be a greater degree of change in the constituency map. We have reflected on those concerns and we have heard concerns during our debates. I think the noble Lord, Lord Brooke of Alverthorpe, mentioned his experience, when people having the opportunity to have their say was so important. The noble Baroness, Lady Liddell of Coatdyke, referred to an inquiry in the Monklands constituency—in which the late John Smith had his last public engagement—where local communities had a valuable opportunity to have their say. However, that is not the same as an argument for restoring the old system of local inquiries. If the concern is to give people the chance to have their say on proposals, old-style local inquiries will not do that. The body of evidence on that point is emphatic.
The amendments before your Lordships’ House today are the Government’s response to all these issues. They provide for a new public hearings stage as part of the consultation process. Their purpose is set out in new Schedule 2A, in government Amendment 39, and could not be plainer:
“The purpose of a public hearing is to enable representations to be made about any of the proposals with which the hearing is concerned”.
Representations to the commission in person will be considered in the same way as the written submissions. The commissions have sensible discretion as to how many hearings there are in each region and to vary the length of the hearing, but there must be a balance of process against the principle of up-to-date boundaries. We cannot have an unlimited number of lengthy inquiries—in some cases during the previous boundary review these lasted for 12 or 10 days—focused on one or two counties or boroughs, in which lawyers can speak at length on behalf of political parties, thereby crowding out the general public, unless they happen to suit a political party interest. We will protect the commissions by placing a clear limit of five hearings in each nation or region of a maximum of two days’ duration, which between them will cover the full range of the commissions’ proposals.
I should be clear that what we envisage here is genuine public engagement. The public hearings will take place during the period for written representations. They will not commence until week 5, so that everyone has time to consider the commissions’ proposals and form an initial view. There are four weeks for representations under the present system. The hearings will conclude by week 10, so that there will be two weeks from the date of the last public hearing for further written submissions. Those submissions might be put forward in the light of the arguments and alternatives that have been advanced during these hearings, or they might not be; other issues might have arisen.
In addition, we have recognised that there is value in the scrutiny of others’ proposals. That is why these amendments also provide that at the end of the 12-week initial consultation stage, all the representations, including the record of the public hearing, will be published. There will then follow a four-week period for counter-representations on these proposals. This will allow for the effective scrutiny of the arguments put forward by others, and will ensure that the commissioners’ deliberations are better informed and that the recommendations are more robust. This kind of scrutiny does not need a process akin to a court, whereby a witness is cross-examined. This part of the amendment fulfils our commitment to the noble Lord, Lord Lipsey, who brought the recommendations of the British Academy, including those of Professor Johnston, to the attention of the House. That aspect of this amendment is modelled on that British Academy report.
We recognise the legitimate stake that political parties have in this process and that they can assist in bringing the arguments of others to light. That is why the amendments provide explicitly for a role for the parties at each hearing; but they allow the chair to regulate that and not exclude other voices. I cannot emphasise enough that due process is exceptionally important.
Lord Clinton-Davis
Will the commission be able to extend the period of consultation where due notice is given? I am thinking of illness or other good reasons interceding.
Lord Wallace of Tankerness
My Lords, in order to give the Boundary Commissions a clear direction on this, we have indicated that there will be a maximum of two days. I do not think that anything would prevent a postponement of two days. We are giving the commissions a degree of flexibility, but the period will be a maximum of two days to make it clear that the hearings cannot go on and on. They are intended to be public engagement, not lengthy inquiry hearings.
In response also to the point made by the noble Lord, Lord Lipsey, it is open to the commissions to set clear procedures for the hearings to ensure consistency. However, the chair will be able to ensure that the procedure for the hearings can adapt to local or unexpected circumstances. This balance of discretion for the commissions and the clear powers for the chair set out in legislation makes the procedures robust against judicial review.
Let us not forget that the Boundary Commissions are each chaired by a High Court judge—or, rather, they are chaired by the Speaker, but the deputy chairs will be High Court judges or their equivalent. I have no doubt whatever that sensitivity to due process will be paramount among their concerns. There has been no suggestion throughout our long debates that the Boundary Commissions have been anything other than scrupulously independent and committed to fairness in their deliberations. They are guarantees of the process being fair. However, let me be clear what these amendments envisage. It is not a return to adversarial inquiries dominated by legal argument. That would be to invent what we know, from experience, does not work. It is new; it is a culture change; and we believe it is a better concept—an open hearing, neutrally and fairly chaired, at which the people can have their say. It is not a substitute for the deliberations of the Boundary Commissions, but another means for people to tell them what they think.
We will no doubt hear arguments about the importance or otherwise of legal professionals being involved in chairing hearings. The commissions will have absolute discretion to appoint individuals who may or may not be legally qualified, and we have tabled an amendment to broaden the purposes for which assistant commissioners may be engaged. If the commissions consider that there is merit in using a suitably legally qualified person to chair the hearings—and we recognise that a legal skill set may well be advantageous—it is open to them to do so. However, if there are other individuals, such as senior public servants or commission employees, who are equally able to chair these proceedings that are designed to engage the public, there is no way in which they should be disqualified from doing so—indeed, they should be allowed to do so.
It is worth considering that the Parliamentary Constituencies Act 1986 makes no provision that the existing inquiries must be chaired by a legally qualified person, or indeed be involved in any of the elaborate processes that have grown up around these inquiries. What that legislation fails to do—a failing that our proposals address—is to make the purpose of a hearing sufficiently clear. The result is that the commissions are exposed and inquiries are no longer about people having their say but about exhaustive legal arguments designed to avoid a judicial review.
I expect that we will hear also that an oral stage requires a chair who is independent from the commissions, and who must produce a lengthy deliberative report. The Government do not accept this premise. The commissions themselves are independent, so there is no need for further separation between a commission and the arguments being put forward. The representations made at the hearings will be taken into consideration by the commissions—the amendment requires them to do it—and it will be for them to consider how best to do this. Weighing the representations made in writing, and those put in person at hearings, against all the other factors in the legislation, and against the proposals made across the regions, is the point of having a Boundary Commission. We do not require a further intermediate step.
We propose something that is culturally different from what has gone before. I note the amendments to the amendment that have been tabled, and I am grateful for the dialogue that I have had with the noble and learned Baroness, Lady Scotland. However, at the end of the day it boils down to a difference in culture and approach. Several amendments state: “delete ‘hearing’, insert ‘inquiry’”. That is at the heart of what this is about.
Lord Rooker
I agree with much of what the Minister says, but if we are going to have a real culture change, it will be no good starting at 10.30 am and finishing at 3:30 pm, which is what the old culture does. If we are down to two days, let us have two real working days so that we have genuine participation even in the truncated time that I think is too short; I suggested five days. The new culture will be no good on the timescales that operated in the past.
Lord Wallace of Tankerness
I will not go down the road of wondering who the timescale was intended to suit. It is clear that Boundary Commissions have discretion in their proceedings. The comment made by the noble Lord, Lord Rooker, is very fair. We want to make sure that the time is best used and that people whose work patterns do not necessarily fit a 10.30 am to 3.30 pm programme have the opportunity to exercise their discretion, and that people have the maximum number of opportunities to contribute.
Lord Hamilton of Epsom
Perhaps my noble and learned friend would agree that the answer to this is not to have members of the legal profession chairing the inquiries.
Lord Wallace of Tankerness
My noble friend perhaps articulated the point that I was hinting at.
The government amendments complete the task of putting the public at the heart of the process, and of delivering effective public engagement with a clear but proportionate role for political parties. The complementary amendment on a counter-representations stage, suggested in Committee by the noble Lord, Lord Lipsey, will allow for the effective scrutiny of the arguments and proposals of others. People who, with the best will in the world, may not be able to attend a public hearing will still be able to make counterproposals in writing.
Also, importantly, this will be achieved on a timescale that will allow for up-to-date boundaries to be in place by the 2015 general election, and during each Parliament thereafter. This will give effect to a key principle underpinning the Bill: fair and equally weighted votes throughout the UK. The amendments respond to the spirit that has been expressed in many of our debates about the public having the opportunity to have their say, without adopting an unduly legalistic view that can exclude the public. I beg to move the amendment standing in the name of my noble friend Lord McNally.
The Lord Speaker (Baroness Hayman)
I have to inform the House that if this amendment is agreed to, I cannot call Amendments 27H to 27K inclusive for reason of pre-emption.
Amendment 27GA (to Amendment 27G)
Lord Martin of Springburn
I thank the noble Lord; I am obliged. I intervened on cross-examination but it was not my interest to worry about cross-examination by solicitors or QCs in an inquiry. Like the noble Lord, Lord Rooker, I have been to three inquiries, but they were in the city of Glasgow. They were very fair indeed. People from all walks of life turned up to put their case. Sometimes people would go along and say that they represented several community organisations. No lawyer present would have known how to test the case that was being put—that they belonged to those community organisations—but someone who lived in the community would. It was lay people who sometimes brought out in cross-examination that perhaps they were not, and could not claim that they were, truly representative of the community councils or residents’ associations as they claimed to be. Those lay people had local knowledge.
It is easy to talk about splitting up wards and putting one ward into another. However, often the argument for moving a ward from one constituency into another is based on where the local facilities, such as transport and schools, are. That is often why church leaders turn up where the local churches are based. Therefore, in the course of cross-examination, lay people can paint a picture of the true local situation for the examiner. I would be just a bit worried about discretion. People should be able to cross-examine as of right.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords and noble and learned Lords who have participated in this important debate. It has been a good and helpful debate, with views forcefully expressed but set out in a measured way. There is some agreement that we want to find the best way to achieve effective consultation on Boundary Commission proposals. However, it has also become clear—I made this point when I opened the debate and it was reflected on by my noble friend Lord Faulks—that the issue very much represents a choice of culture. Will we have what is essentially the old system of the local public inquiry—albeit with some timetable improvements; and I acknowledge the efforts made there—or a change of culture towards the public hearings proposed in the Government’s amendment? My noble friend Lord Faulks indicated that our proposal goes with the grain of making arrangements for similar matters to be dealt with.
The process we have set out combines written representations with a new public hearing stage aimed at providing for real public engagement, and involves a counter-representation stage to allow for scrutiny. We believe that that adds up to a comprehensive and rigorous process which learns the lessons of previous reviews and allows us to achieve the key principles of the Bill, whereby constituencies will become more equal and fair and their representation in the other place will be reflected by the time of the 2015 election.
It was suggested by the noble and learned Lords, Lord Falconer of Thoroton and Lord Woolf, that the representations made at an oral hearing would disappear into the ether. However, it is it is important to recall that not only after the end of the period will there still be an opportunity for follow-up representations, but, in response to amendments in Committee from the noble Lord, Lord Lipsey, there will be an opportunity for counter-representations to be made. It is a requirement set out in the amendment that the Boundary Commission shall give consideration not only to the written representations and counter-representations, but to the record of those who engage in the oral hearings.
The process that we propose is a considerable departure from the original proposals in the Bill. That was acknowledged by the noble and learned Lord, Lord Woolf. The Government have listened to the reasonable concerns on the importance of public engagement, not least at the first review under the new rules. We have listened to the argument that our process could be strengthened if there was an opportunity for the scrutiny of arguments put forward by others. We have shown that we are willing to move in the interests of a better outcome, but not at the cost of the key principles of the Bill. That cost would include delays that could undermine those principles.
The opposition proposals—whether those of the noble and learned Lord, Lord Falconer of Thoroton, or the suggested changes to the Government’s amendments—would, in effect, restore the existing inquiry process. They require a legally qualified chair and a report back to the commissions by the legally qualified person—we have had exchanges on whether there are to be two decisions or two determinations. The opposition proposals would remove the time limit on the number of days an inquiry will last. Those old-style inquiries would take place after the submission of written evidence, as they do now—albeit for a slightly longer period—in order that the parties can send their lawyers and that their legally qualified person in the chair can cross-examine them.
Even the noble and learned Lords among us can imagine that that process is unlikely to engage the general public at large. The work of academics who have researched these issues in depth means that we do not have to imagine what that would mean, because the evidence is in their reports. An in-depth study by Ron Johnston, David Rossiter and Charles Pattie in 2008 stated:
“It would be a major error to assume that the consultation process largely involves the general public having its say on the recommendations. The entire procedure is dominated—in influence and outcome if not in terms of the numbers of representations and petitions (many stimulated by the main actors)—by the political parties”.
There has been a flavour of the political parties’ heavy engagement.
It has also been said that somehow or other the public inquiry system assuages pent-up local demand. Before I came to the Chamber this afternoon, I looked at the last Boundary Commission review of the constituencies for the Scottish Parliament. In the case of East Lothian, Midlothian and the Scottish Borders, the inquiry process, which led to a recommendation from the reporter, who I think was Sheriff Edward Bowen QC, was completely and utterly dismissed by the Boundary Commission. I am not sure what that would do to promote public confidence in the system proposed by the Opposition.
Lord Foulkes of Cumnock
Will the Minister confirm that there was no application for a judicial hearing in relation to that? Everyone accepted it.
Lord Wallace of Tankerness
I am not aware that there was a judicial review. The noble Lord said that everyone accepted it. He should consult my noble friend Lord Steel of Aikwood about how effective he thinks the present public inquiry system is.
The role of the chair has been much debated. It was said that the chair should be legally qualified in order to provide clarity and consistency of practice, and to make the process resistant to judicial review. It was claimed also that there must be report back. We have just heard about the pros and cons of that. The Government do not agree. The hearings that we propose are about giving the public and the political parties a chance to have their say as part of the consultation process. The legislation provides that a commission shall take into account the representations made at hearings, as it does the written submissions.
Another of my concerns about the opposition proposals is that the value of the written submissions appears to be somewhat relegated. We propose that there should be a counter-representation period. As I understand the Opposition's proposals, any written counter-representations would have to be channelled into the public inquiry: there would not be a time period for them.
It is important to remember that the commissions are independent. They exist to weigh the arguments. It will be for them to decide how best to do that. There is no need to interpose an independent lawyer between the commissions and the arguments in order to allow the public to have their say. The commissions will be chaired by a High Court judge or equivalent and will be very sensitive to those issues. It will be open to them to appoint the chair that they think best for the job. I will not detain the House at the moment by speaking to Amendment 18E in this group, save to say that we have tabled it to broaden the purposes for which assistant commissioners may be engaged.
The Opposition claim that the process is flawed because the hearings will take place at a point in the process before all the written representations are known. This point was picked up by my noble friend Lord Phillips. Again, that is a concern if one has the mindset of a public inquiry. We say that parties will be able to feed in their views of the commission's initial recommendations, and others will be able to hear them. We have provided for counter-representation that will allow scrutiny of the arguments of others. Although we do not envisage a public inquiry with a quasi-judicial cross-examination, I say to the noble Lord, Lord Martin of Springburn, that our amendment provides for the chair to put questions or allow questions to be put to a person present at the hearing and, if the question is allowed to be put, to regulate the manner of the questioning or restrict the number of questions that a person may ask. Therefore, there will be an opportunity for the kind of engagement that the noble Lord clearly feels is of value.
The noble and learned Lord stated that the Opposition are arguing that if we adjust the number of weeks for written consultation there is time for oral inquiries to be held. Putting a deadline in the Bill does not guarantee that it will be achieved. The Boundary Commission for England was set a deadline in primary legislation in 1992. However, it reported months later because it felt the need to focus on the process under the previous legislation. I do not criticise it for that: it believed that the process was important. However, I ask the House to consider that the Boundary Commissions may think that the process is important, and that whatever deadline we set may not be met. If that happens, there is a danger that one of the key principles of the Bill will be seriously undermined.
The noble and learned Lord indicated that two days was not enough for an inquiry. Past inquiries have taken 12 days, or 10 under the previous review. Under the Government's proposal, there would be a maximum of 90 days of public hearings in England: five in each region, lasting two days each. That would be the upper limit. The Opposition would remove the limit on the number of days, and the period for counter-representations, meaning that the only place for scrutinising the arguments of others would be in that oral public inquiry. Therefore, we could expect more 10 and 12-day inquiries. We believe that this proposal is simply impractical. I recognise that in toto the number of weeks is similar to ours but I fear that I am sceptical about whether it could be achieved in practice, even if it were desirable to restore the old-style, legalistic form of inquiry. I remind the House that it is not. I quote from academic literature:
“In effect, the public consultation process is 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”.
The noble and learned Lord, Lord Lloyd of Berwick, indicated that he thought that all the key components were in fact ticked off with the Government’s amendment.
In conclusion, the House is faced with a choice between a new mechanism for ensuring that the public can genuinely engage in the boundary review process through hearings or the recreation of the old inquiry process that we know can be alien to the public and would return us to the days of six-year boundary reviews. Even if it does not do that, it would certainly lead to a length of time which could undermine getting the boundary review through and the next election being fought on modern, up-to-date boundaries. I believe that the Government have moved a long way on this point and they have done so after careful consideration. I urge noble Lords carefully to consider the proposals that we are putting before the House today and to support them.
Lord Falconer of Thoroton
My Lords, there is a very real and important issue here. On close analysis, the noble and learned Lord’s proposals are flawed, and fatally so. First, on the point about delay, I do not think that the noble and learned Lord was listening to what the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, were saying. In his closing remarks, he agreed that the period of time specified for his scheme and for the Opposition’s scheme is broadly the same. With ours it is 26 weeks and with his it is 24 weeks. Therefore, a scheme is being proposed to enable the process to finish by October 2013. I want to spare the blushes of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, but they are probably the two leading experts on judicial review in this country and they are saying that there will be more judicial reviews. The noble and learned Lord, Lord Wallace of Tankerness, whom I greatly respect, is shaking his head but, with respect, I am listening to them, not to him, and they are saying that there will be more judicial reviews. They say that they do not know what form they will take but there will be more of them. Therefore, the noble and learned Lord, Lord Wallace, is making his scheme more vulnerable to delay through the process that he is proposing. I say that not on the basis of my opinion but on the basis of the opinion of the noble Lord and the noble and learned Lord. Therefore, with respect, his point about a delay is wrong.
Secondly, he says that this process will engage people, in that his scheme will allow people to come and say something—a process that the noble Lord, Lord Faulks, described as a day in court. The noble Lord, Lord Faulks, spent many days in court, but I have never known a day in court where you say something but then nothing happens. As the noble Lord, Lord Pannick, said—in my submission, entirely correctly—that will be bound to increase resentment, not reduce it. As my noble friend Lord Rooker said, someone will not be saying, “Well, I have heard your arguments and you’re wrong on this and right on that”. It is, with respect, a point that the noble Lord, Lord Faulks, put his finger on and it is incredibly important.
The third point that the noble and learned Lord made is that academics are all against us. They are not. They are saying, as we are saying, that we must streamline the process. We must not allow it to become abused, but we must have some process like this. The person who knows best about this is the boundary commissioner, Robin Gray, who said that if you do not have a process where the public can put their point of view and have a response to their point of view rather than complete silence, you are going to have real disquiet about an area where there is no disquiet at the moment. With the greatest of respect, I must say that the Government have moved some way, but they have moved nowhere near enough, and they have put us in a position where we have no alternative but to seek the opinion of the House. I beg to move.
“(1A) After Schedule 2 to the 1986 Act there is inserted the Schedule set out in Schedule (Public hearings about Boundary Commission proposals) to this Act.”
Lord Wallace of Tankerness
My Lords, first, I thank the noble Baroness, Lady McDonagh, for her amendment. In a number of ways it brings together issues that have been debated both in Committee and this evening and, I suspect, will be debated in future groups of amendments.
On the rules of the Boundary Commission and the number of seats, as the noble Baroness indicated, her amendment has a number of parts to it. First, it would set a target of 600 seats, not to be substantially exceeded. Secondly, it would introduce a fixed electoral quota of 72,000 voters and a tolerance of 7.5 per cent on either side. Finally, it would require the Boundary Commission to draw up recommendations for boundaries that do not cross historic county boundaries or English local government wards, and cross London borough boundaries only where absolutely necessary and where sympathetic to local ties and natural boundaries. The Government have on each of these issues already made their view clear in the debates that we have already had on this Bill. I am sure that there will be other opportunities to revisit them before the Bill leaves your Lordships’ House.
I start with the noble Baroness’s suggestion that there should be a target of 600 seats. The noble Lord, Lord Bach, referred to the Parliamentary Constituencies Act 1986, in which the figure of 613 seats was set using similar wording.
Lord Wallace of Tankerness
Indeed. The figure is 613 for Great Britain, which, with Northern Ireland, takes it to 630. We are agreed on that. That, in many respects, just underlines the problem. Even with that wording, if you subtract the 18 Northern Ireland seats from the current 650, you get 632, so we are already some 19 seats up. Noble Lords might recall that when the 1986 legislation was passed, it also had the provision that there had to be at least 71 or 72 seats in Scotland, which is now down to 59, so we can perhaps add another 12 to that. Not only are we 19 up, we have a further 12, so we would have drifted upwards by some 31 from the target figure.
The noble Lord, Lord Bach, quoted the fifth report. I do not dispute that no one else has, but I do think that somewhere along the line there have been some quotations from it before, although that is neither here nor there. While he indicated that in the view of the Boundary Commission it was not right for it to set a fixed target or adhere to a fixed number, I rather think that, given the rules under which it operates in the 1986 legislation, that is probably a proper way for it to go about its business. The whole point is that Parliament is setting a figure of 600. It is not the Boundary Commission but Parliament that will set a fixed number.
The Government’s position has been made clear; there needs to be a legislative cap on the number of seats to control the ratchet effect of the current legislation, under which the number of seats has increased at every review—with the exception of the post-devolution review—since 1950. It is likely that the target would be missed under the noble Baroness’s amendment even at the first review, since the 2009 electorate divided into constituencies at an average of 72,000 would fill 631 constituencies. Indeed, she said that we would be invited to address the issue of constituencies of around 100,000, but that is wildly out of kilter with anything that is being proposed here. That is not what Parliament is being asked to address. We are looking at a quota of approximately 76,000, with a variation of 5 per cent on either side—a band of 7,600.
Setting out the size of the electoral quota in the Bill poses some problems for the way in which the noble Baroness’s amendment is framed. However, the way in which the Bill is written allows for changes in the number of registered voters while maintaining a smaller House of Commons. A specified quota, such as that proposed in this amendment, would mean that the number of seats will rise as the number of registered electors rises, making it yet more unlikely that the commissions will ever meet the target of 600 seats.
Lord Campbell-Savours
What happens if the population rises by 2.5 million and, when it is spread out as a ripple effect across the whole population, each constituency then meets the limit of 76,000 plus 5 per cent? Do we then increase the number of seats or simply increase the number of voters in each constituency?
Lord Wallace of Tankerness
My Lords, as the Bill is set out, at each relevant date the quota for the Boundary Commission—the number of registered voters—will take that into account. Given that the Bill provides for five-yearly boundary reviews, the population is unlikely to increase by 2.5 million in one boundary review, although it could happen over time. We are still talking about 600 seats. Therefore, the quota would increase, still allowing for a variation of 5 per cent either way. My point about the noble Baroness’s amendment is that with the quota being set in the Bill—if her amendment were to be carried—an increase of 2.5 million in the population would significantly increase the number of seats and move further away from her other objective, stated in her amendment, of not being substantially in excess of 600.
The next issue is that of the 7.5 per cent tolerance from the parity quota. Your Lordships’ House has discussed increasing the tolerance from the quota set out in the Bill on several occasions. I merely confirm that the Government are committed to the principle of equity and of equally weighted votes. Five per cent is the minimum variance necessary to ensure that the Boundary Commissions are able to take into consideration the important practical factors set out in rule 5 without undermining the principle of fairness for voters that is at the core of these reforms. A greater tolerance in these circumstances would be unfair to electors. The discretion given to the Boundary Commission by a tolerance of 7.5 per cent allows for the possibility that different Boundary Commissions could adopt different practices and, therefore, that there could be an imbalance in the number of seats in each part of the United Kingdom.
The amendment also sets up a potential for internal conflict. The provisions in the Bill have been praised as a substantial improvement on those currently implemented by the Boundary Commissions because they have a clear hierarchy and are not contradictory. However, the provisions in the amendment do not have such a hierarchy and there is no guarantee that the commissions will be able to draw constituencies of 76,000 people without crossing historic county boundaries—a term that remains undefined.
I turn to the other leg of the noble Baroness’s amendment. To ensure that constituency boundaries do not cross various other boundaries, we have listened to the concerns of noble Lords and are bringing forward an amendment later this evening that will put into the Bill the local government boundaries that we know each Boundary Commission considers when drawing up constituencies. The 5 per cent variation will allow the Boundary Commission for England to use wards as building blocks in most if not all cases. We expect that it will do so. However, it is important to allow the Boundary Commission for England discretion as it carries out its independent duties. The amendment talks of historic county boundaries and specifically mentions Devon and Cornwall. I thought I heard the noble Baroness say that historic boundaries had never been crossed before. I am told that the Littleborough and Saddleworth constituency crossed the Yorkshire-Lancashire border. If there ever was an historic sensitive boundary, I suspect that it might be that one.
Lord Trimble
On the question of historic county boundaries, I do not have the precise facts, but I think I am accurate in saying that half the current constituencies in Northern Ireland cross historic county boundaries. It would be totally impossible for the amendment to operate in Northern Ireland.
Lord Wallace of Tankerness
I hear my noble friend and, although I do not have an exact figure, a significant number of county boundaries within England are crossed by constituencies. I am not quite sure whether those counties would be defined as historic.
Lord Bach
Which other examples does the noble and learned Lord have in mind? He is quite right to mention Oldham and Saddleworth. Our point is that if this Bill is passed as it stands, there will be many more Oldham and Saddleworths. Those of us who visited that lovely part of the world a few weeks ago will know that it is a constituency of many parts that are absolutely different from each other. Do the Government really want boundaries with no links at all—never mind historic links—that are just jammed together for political convenience? The Government should want to avoid that, rather than encourage it. I ask again—does the noble and learned Lord have other examples?
Lord Wallace of Tankerness
I do not have the figures immediately to hand, although before I finish I might be able to provide the number of county boundaries that are crossed by constituencies. I accept that the number of constituencies that cross county boundaries is different. From my recollection of our previous debates on this issue, a number of county boundaries are crossed by constituencies. I hope that by the time I conclude my remarks I can advise the House as to the exact number of county boundaries that are crossed. I am sure that in each case it is thought the counties are properly historic.
Lord Beecham
Does the Minister accept that if the 5 per cent threshold were adopted, only nine out of 46 county boundaries would not be crossed by new constituencies?
Lord Wallace of Tankerness
My Lords, one can only speculate at present on what the Boundary Commission will propose. I know that some efforts are being made to work out what might happen. I could not accept that because we have not seen any Boundary Commission proposals. However, I emphasise to your Lordships the importance of wards, which the noble Baroness mentions in her amendment. We will debate this matter later, because the Government have responded to requests that wards should be one of the key building blocks. It is, of course, at the ward level that many local ties are reflected. The wards will be significant building blocks in the new constituencies.
Lord Tyler
The noble Baroness will be aware that the present constituency of Dulwich and West Norwood crosses a London borough boundary. It is therefore important to mention, for the benefit of your Lordships’ House, when considering sub-paragraphs (b) and (c) of proposed new rule 3 in the amendment that, as has been pointed out on several occasions, in Birmingham it would be impossible to fulfil the requirements of sub-paragraph (c). Under the present arrangements, the constituency boundaries of local government boundaries are certainly not protected. It is important that we live in the real world.
Lord Wallace of Tankerness
My Lords, my noble friend makes the point that constituencies cross London borough boundaries. I repeat that the important building blocks are the wards. They will be the units in which local ties are best expressed.
Sixteen out of 35 shire county boundaries are crossed; 31 out of 40 unitary authority boundaries are crossed; and 19 out of 32 London borough boundaries are crossed. That is a significant number. Therefore, I cannot accept that it has never been done before.
The Bill already permits the Boundary Commission to take into consideration factors that the amendment suggests: county boundaries, London borough boundaries, local ties and natural geography. I agree with the noble Baroness that these are all important and should be considered by the commissions when they make their recommendations. That is why we have included them in the Bill. However, as we have said on numerous occasions, we do not believe that these factors should outweigh the fundamental principle of equality in the weight of votes that the Bill will provide. It was the lack of hierarchy in the past that led to a divergence and a ratcheting up from the target of 613 seats. For these reasons, I urge the noble Baroness to withdraw her amendment.
Lord Wallace of Tankerness
My Lords, I thank noble Lords who have taken part in this debate, and I thank them for the amendments they have tabled. We have focused on the important issue of boundaries, particularly ward boundaries. I especially thank my noble friend Lord Tyler and the noble Lord, Lord Davies of Stamford, for acknowledging that, in response to representations they made earlier, the Government have brought forward amendments that reflect the importance of using wards in the Boundary Commission’s deliberations and determinations.
The Government have listened, and I hope that our amendments will satisfy the House. They reflect the variations in local government geography in the four constituent nations of the United Kingdom. We have taken the local government boundaries that we know each Boundary Commission considers when drawing up the constituencies and the amendment puts them on the face of the Bill. The Boundary Commissions will have the discretion to consider ward boundaries along with the other local government boundaries referred to in the debate.
The noble Lord, Lord Howarth of Newport, and the noble Baroness, Lady Armstrong, mentioned the position of the unitary authorities. In the other place, the Government listened to the matter raised by the honourable Member for Slough regarding the unique position of the unitary authorities in Berkshire, which are districts. The Government listened and made an amendment to ensure that their boundaries were included. They will still be covered by our amendment which refers to all council areas in England, whether unitary or two tier, and for that reason we believe that there is no need for the amendments of the noble Lord, Lord Howarth of Newport, although I accept the rationale behind them. The government amendment already allows the Boundary Commission to consider unitary authorities.
Amendment 21A would prevent constituencies including the whole or part of more than two counties or London boroughs. I note that the honourable Member for Dumfriesshire, Clydesdale and Tweeddale, Mr David Mundell, represents a constituency which contains parts of three council areas, including my own native parts in Dumfriesshire. It shows that Members of Parliament can perform this task. Indeed, at the last general election Mr Mundell was returned with an increased majority, which, given that he is the only Conservative MP in Scotland, was no small achievement. The administrative convenience of MPs should not be set above other factors to be considered by the Boundary Commissions.
The amendment of the noble Lord, Lord Davies, would prevent wards being split except in exceptional circumstances. The difficulty with exceptional circumstances is that in some of the largest wards of around 20,000 electors, there could well be perfectly valid arguments that it might better reflect the community characteristics for them to be divided between two different constituencies. In an earlier debate the noble Baroness, Lady McDonagh, recognised that wards are already split by parliamentary constituency boundaries in Scotland, where, because of the single transferable vote system of local elections, wards are by their very nature considerably greater.
We believe that the best approach is to give discretion to the Boundary Commissions. We should not forget that the secretary to the Boundary Commission for England said in evidence to the Commons Political and Constitutional Reform Committee in September of last year:
“We have done some modelling earlier in the year … and it appears possible to allocate the correct number of constituencies using wards. However, it may be necessary to use a geography below ward level”.
So we expect wards to continue to be used as the building blocks of constituencies in England.
I am sympathetic to the intentions of opposition Amendment 21C. However, the Government favour placing a discretion on the commissions in the form of our amendment. I hope we agree that it is helpful for the commissions to be able to have regard to the boundaries of wards and other local government boundaries, and it is for that reason that we have placed them in the Bill. I urge the noble Lord, Lord Bach, to withdraw his amendment and the other noble Lords not to move theirs. I will move Amendments 27A, 27C and 27D in good time.
Lord Bach
My Lords, I am grateful to all noble Lords who have spoken in the debate, not least to the Minister for his comments. At the start of my speech I did not thank the Government for the move that they have made on this issue, which I now acknowledge from the Front Bench. Our problem is that they have not moved far enough. My amendment and the amendment of my noble friend Lord Davies of Stamford seem to be stronger, tougher and more likely to mean that wards would not be divided in the changes to come. However, we have had a full discussion on this issue today and the Government have at least moved some way in this field. I beg leave to withdraw the amendment.
Lord Bach
My Lords, this is a very simple amendment which we feel the Government should be able to accept without any fuss. It makes a minor textual change that does no more than include in the Bill a statement of fact made by the government Front Bench. It proposes that the reference to “local ties” in rule 5 of Clause 11 should also include a reference to local wards. There should not be much argument about this because in Committee the noble and learned Lord, Lord Wallace of Tankerness, told your Lordships that,
“wards are in many cases already the building blocks of constituencies. They are the level that can often reflect local community ties”.—[Official Report, 24/1/11; col. 743.]
Today, he has gone further and the Government have moved an amendment, which has been passed, that will strengthen that to some extent. Therefore, the case for adding the expression set out in my Amendment 21J is sensible, clear and unarguable. I hope that the Minister will accept it. I beg to move.
Lord Wallace of Tankerness
My Lords, as I understand it, what the noble Lord intends is for rule 5, on factors which the Boundary Commission may take into account, to read:
“A Boundary Commission may take into account, if and to such an extent as they think fit … any local ties, including wards, that would be broken by changes in constituencies”.
The reason for our not wishing to accept the amendment is, as has already been indicated—we have already had a good debate on wards—that “wards” will be inserted in the Bill by Amendments 27A, 27C and 27D when they are passed. As the noble Lord knows, wards will in that way be imported into the Bill, so the position would in many respects be duplicated by his amendment. I do not think that there is any dispute between us as to the importance of wards, but I believe that the amendments which the Government will move when we reach the appropriate part of the Marshalled List will address the point that the noble Lord makes.
Lord Bach
My Lords, I thank the noble and learned Lord for the speed with which he found the passage. Oh, did he not? I take back those thanks at once but thank him for his response.
He is being too cautious here. This is such a small amendment and it fits in exactly with what he told the House about how important the Government now feel that wards are in the whole structure of the new process. I will of course withdraw the amendment but ask him, please, to go back and consider whether adding those words in that part of the Bill would really not be an improvement. There is no adverse reason why that should not happen. I ask him, before Third Reading, to go back and consider that but for now I beg leave to withdraw my amendment. I am grateful to the House for its indulgence.
Parliamentary Voting System and Constituencies Bill
Lord Wallace of Tankerness Excerpts(13 years, 9 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
I thank the noble Lord, Lord Rooker, for tabling his amendment and for allowing the House to have an opportunity to debate what I think has been recognised as an important issue. It was debated in Committee and we now have an opportunity to further debate it and other amendments.
The noble and learned Lord, Lord Falconer, indicated, as have many other contributors, that this is a serious constitutional issue. Its seriousness is marked by the fact that there is going to be a referendum at all. The noble Lord, Lord Anderson of Swansea, made reference to this House’s Constitution Committee, whose report saw referendums as being used only for matters of the highest constitutional importance. It is fair to say that, with the exception of the proposal for a referendum on AV, the constitutional measures in the so-called CRAG Bill that we dealt with briefly before Dissolution last year were not deemed sufficiently important to trigger a referendum. The Government recognise the importance of this issue—hence the referendum.
The amendment moved by the noble Lord, Lord Rooker, would provide that, unless 40 per cent of the electorate voted in the referendum, the vote would not be binding. It would appear, therefore, that the intention is to make the referendum indicative should the turnout condition not be met. I am somewhat unclear what the consequence would be if the 40 per cent was not reached. I wonder, perhaps, whether the provisions in Clause 8 that mandate the Minister to make the order implementing the AV provision if there are more yes votes than no votes would remain unchanged if this amendment were taken alone. It is unclear what the ultimate effect would be. There is Amendment 10B, however.
Lord Wallace of Tankerness
That is helpful. Originally it was linked and it seems to have been delinked. The amendment would change the obligation to implement the result of the AV referendum into a power to do so.
I thought that the noble and learned Lord, Lord Falconer of Thoroton, was suggesting that there had to be primary legislation, although I am not sure whether I heard him correctly. Amendment 10B deals with that, although I should say something about the difficulties there, because there is still a lack of clarity. In addressing these amendments, I never like to lean too heavily on the technical matters, but there are important technical issues here of which the House should be aware.
The new discretion in Amendment 10B, if it were to be carried, seems to apply whatever the circumstances and not just where the referendum is made non-binding by Amendment A1 because turnout is less than 40 per cent. We might, therefore, find ourselves in an odd situation if the turnout exceeded 40 per cent with the majority in favour of AV. One part of the Bill would suggest that the result was binding, but another would suggest that there was no obligation, because there would be a power rather than an obligation to bring forward the order. I am also unclear as to the effect of the amendment in the event that less than 40 per cent of the electorate voted in the poll and the result was against a change in the system. I strongly suspect that this is not the intention but, as it stands now, the provisions mandating the Minister to repeal the relevant clauses would still stand but the result itself would not be binding. I am sure that the noble Lord will have an opportunity to clarify that. There is a difficulty there at the moment.
In addition, the amendment offers no indication of what kind of process might be followed where less than 40 per cent of the electorate voted. Even if Amendment 10B were carried, there would be a heavy responsibility on the Minister and then on Parliament if there had been a yes vote. The Boundary Commission review would be complete but he or she may or may not bring the provisions into force. As we are all aware, the boundary review will not be completed until 2013 at the earliest. Is it really the case that we want to replace the current provisions in the Bill, which provide both clarity and certainty, with provisions that could leave us with no clear resolution for the two years following on from the referendum? I am not saying that that would be the case, but that is the possibility that we open ourselves up to with these amendments. I cannot believe that that lack of clarity would be healthy.
I assume that that is not the intention of the noble Lords who are making these proposals. Perhaps they envisage that the gap in their amendments would be filled by what the noble Lord, Lord Wills—I am not sure whether he is in his place—proposes in his Amendment 10C, which is that there would be a debate in Parliament. His proposal would introduce a statutory requirement for a debate in both Houses within 14 days of the referendum result, although as it stands it would not make the referendum indicative and so would have little practical effect.
Even if the amendments tabled by the noble Lord, Lord Rooker, provided for this or some other process, I would still find it necessary to oppose them. The Bill provides that the referendum result will be decided by a simple majority. We believe that that is right, because it is the simplest, clearest and fairest way of proceeding. When people make the effort to go to the polls on 5 May, they should know that, if they vote for the alternative vote, that is what they will get. To impose a threshold or to make a referendum indicative would be to offer some sort of consolation prize—people might get it at the very end.
Reference has been made in this debate and in the debates that we had in Committee to the 1978 situation, where, because of George Cunningham’s eloquence and, perhaps, the Opposition seeing an opportunity, a 40 per cent threshold was introduced. The noble Lord, Lord Rooker, said that there was a bitter taste. As one who campaigned in that referendum, I know that that bitter taste lingered for a very long time. To go out and campaign in a referendum and get a majority for the yes vote and then to be told that the majority did not count and did not matter was bitter. In terms of the cynicism of voters, which was referred to by the noble Lord, Lord Elystan-Morgan, there would be a real danger of cynicism if people went out and voted and there was a clear yes vote and somehow or other that yes vote had to be held in suspension or might not be translated into action.
Lord Lamont of Lerwick
If that argument is correct, why does it not also apply to general elections and constituency votes, which some noble Lords wish to alter?
Lord Falconer of Thoroton
Is it not also right that it was an automatic no when the level was not reached in 1978, which is not what my noble friend Lord Rooker is proposing here?
Lord Wallace of Tankerness
There is a difference because the 40 per cent related to something different. I am not entirely sure that I follow what my noble friend Lord Lamont said, because in general elections there is no threshold for what the turnout should be to make those elections valid and no one has ever suggested putting a turnout—
Lord Lamont of Lerwick
The noble Lord is in favour of moving to an electoral system in which a simple majority is not enough. At the same time, he is saying that this referendum ought to be determined by a simple majority.
Lord Wallace of Tankerness
There are different types of voting system and there will be later amendments with regard to them. This is a referendum with a straight yes or no. If in a general election there were two candidates, it would be a simple, straight case of whether you were or were not elected. The difficulty arises under our electoral system where there are more than two candidates. That is why there is a difference between a straight yes or no in a referendum, where by definition one side is going to get more than 50 per cent of the votes cast and one side is going to get less than 50 per cent.
I am aware that concerns have been raised here and elsewhere about the turnout. It is clear that we all want to see high levels of turnout. I believe that this will be the case. The fact that the referendum will be combined with other elections on 5 May will help to increase turnout. The campaigns in the run-up to the referendum will increase public awareness. The work of the Electoral Commission in promoting public awareness about the referendum and the media coverage about the referendum will help. In previous referendums, the turnout has generally been above 50 per cent. It was 64 per cent in the 1975 referendum on the European Community, 60.2 per cent in the Scottish devolution referendum and 50.1 per cent in the Wales referendum in 1997.
My noble friend Lord Blackwell expressed some concern about setting a precedent if there are any future EU referendums. It is precisely because of the precedent that we should not start setting thresholds. A procedural barrier such as this can lead us into uncharted waters, because someone might come along with different thresholds for future referendums. Surely it is better to have a single, straightforward vote where people know where they stand and what the outcome will be when they cast their vote.
My noble friend raised the question of the United Kingdom. We sometimes have different votes in different parts of the United Kingdom at a general election. Sometimes that leads to some tensions, but I do not think that it is suggested that it has weakened the fabric of our union in any way.
Lord Hodgson of Astley Abbotts
Does the Minister really think that on 5 May, when we have a Scottish parliamentary election, a Welsh Assembly election and only local government elections in England, the level of turnout is likely to be the same in all three parts of the United Kingdom—not to mention Northern Ireland?
Lord Wallace of Tankerness
It would be rash to predict the turnout, but I think I am right in saying that 84 per cent of the United Kingdom electorate will be engaged in an election as well as in the referendum. That gives every opportunity for the turnout to be higher as a result, and it is perhaps more likely to be better in all parts of the United Kingdom than if no election was being held at all that day, when there would very much be a doubt as to the turnout in different parts.
Lord Wallace of Tankerness
I know that, but I think that the figure that I have seen is 84 per cent. It is recognised that London does not have elections, which is probably all the more cause for those who wish to stimulate participation to ensure that it is particularly well focused in London.
As my noble friend Lord Tyler pointed out, when the question of a threshold was considered in the other place, Members there sent a very clear message indeed, voting by 549 votes to 31 votes against the proposal. I note in particular that Mr Christopher Bryant, speaking from the opposition Front Bench in the other place, said that he did,
“not think that it is appropriate to bring in a threshold”.—[Official Report, Commons, 2/11/10; col. 849.]
His colleagues followed him into the Lobby.
The noble Lord, Lord Sewel, is in his place. During the debate on the 1997 referendum on devolution, he said:
“The threshold, as we have demonstrated, is one of the most dangerous introductions into the democratic process that has been engineered”.—[Official Report, 7/7/97; col. 467.]
I hope that he will confirm that.
Lord Sewel
I do confirm that. I also confirm that that was an advisory referendum.
Lord Wallace of Tankerness
Indeed, and I do not think that that takes away from the point. As the evidence in paragraph 193 of the Lords Constitution Committee report said:
“Despite referendums in the UK being legally advisory, a number of witnesses pointed out that in reality referendums might be judged to be politically binding. Dr Setälä argued that ‘in established democracies, it seems to be very difficult for parliamentarians to vote against the result of an advisory referendum’”.
It might also have been advisory, but the noble Lord, Lord Rooker, recanting on his vote in 1978 in a debate on the Regional Assemblies (Preparations) Bill on 8 April 2003 in this House, referred to the vote after the George Cunningham speech and said:
“The result was a botched referendum in Scotland, which resulted in a "Yes" vote that could not get over the hurdle … We are now in the position where we are following the precedent set in Scotland, in Wales”—
that is, a more recent precedent in Wales—
“in Northern Ireland and in London. It would be absolutely crazy and unfair if we were to change the rules for any proposed regional referendums when we have already held referendums in so many other areas of the United Kingdom”.—[Official Report, 8/4/03; col. 188-89.]
The noble Lord spoke powerfully on that occasion.
The Bill offers simplicity. Above all, it offers certainty. Every vote will count and will not be distorted by any artificial barrier or threshold. My noble friend Lord Tyler asked the noble Lord, Lord Elystan-Morgan, about abstentions counting in no votes. During our debates last week on postal votes and whether people could vote by post if they had voted in person, it was clear that a number of Members of your Lordships' House were registered in two places. They can exercise only one vote, so the other vote will technically, de facto, count as a no vote. Those who have died since the register was made up will count as a no vote, because nothing here allows the register to be recalibrated to take account of people with votes at second homes or those who have, sadly, passed on. I recall very well that these unfairnesses were highlighted time and again in the 1979 referendum in Scotland.
The certainty of the will of the people should be given effect without further complex procedures or further parliamentary debate or political wrangling, so that when people go to the polls on 5 May, whatever their view on the issue at hand, that view will be heard and given effect to. I ask the noble Lord to withdraw his amendment.
Lord Rooker
My Lords, I did not expect words that I used as a Minister from that Box to be thrown back at me during this debate. Given that it has been a bit of a rush since we finished Committee, I would have thought, to be honest, that the Minister’s advisers would have been better getting ready the package of concessions that we have been promised than trawling through my old speeches—which, I would add, were on regional referendums. This is different.
The other thing that I want to make absolutely clear is that this is not a threshold in the normal use of the word. This is not what the House of Commons voted on, or against. It is not the threshold. If it is not 40 per cent, it does not stop it going ahead. I do not wish to do that, but with all the arguments and permutations that one can think of, one can imagine lots of reasonable cases to be made to proceed accordingly after the result. All I am saying is that, given the binding nature of this, as others have said, and not knowing what is going to happen in only the second-ever national referendum, and on a key issue of changing the voting system—not like elections, where Governments come and go, as someone said—it just gives Parliament an opportunity to think again, and Parliament would be well advised to take the will of the voters. I do not argue with that at all, but I simply say that the Bill is too black or white, all or nothing.
By the way, I do not claim any credit for this amendment. I wrestled last week with how I could bring back the issue of a consultative indicative—which failed in a vote on, I think, 6 December—and deal with the idea of thresholds, which I am intrinsically against for the reasons that many noble Lords have explained. Nevertheless, we have to have this as a back-up. I was wrestling with this with a very bright young person in the back of a taxi when the solution was offered to me: join the two together—make it indicative only if the voter turnout is different. We can still proceed accordingly; we can still have the referendum, still have the result, still make the change to AV, whatever the voter outcome. I am just saying that if the voter turnout is less than 40 per cent, Parliament could say, “Hang on, we had better think about this again”.
We have come a long way since those who originally proposed the alternative vote—the Electoral Reform Society and company—actually said, “It is so small a change, you do not need a referendum”. That has been their case virtually all along—that we did not need a referendum on this. I do not support the AV system in the Bill anyway, but that is not the issue. I have back-up amendments, in response to the noble Lord, Lord Alderdice, because I genuinely think that you have to get a yes vote in the four countries of the UK. That is not implied in this amendment; it is there in Amendment 11A.
I accept that there is clarity and certainty in the way in which the Bill is drafted. There is too much clarity and certainty when we are dealing with an electorate of well over 40 million. It is true that on election day, as has been said—I have not yet checked the figure— 84 per cent of people are eligible to go to the polls. When you have, among the 16 per cent who are not, a massive block here in the capital city—it is not as though they are spread out all over the country—we will end up with a massive block that will get the chance to vote only in the AV referendum.
I am simply saying that this gives us an opportunity. It does not wreck the Bill—I repeat this for those who will deliberately misunderstand and misreport what we say—it does not wreck the idea of the AV referendum, it does not stop the outcome. Whatever the outcome of the election, it can still proceed if there is a yes vote. All I am saying is this; let us give ourselves, as a Parliament, the opportunity to have a rethink.
My final point is that I know that it looks simple. It is a few words—and Amendment 10B should attach to this to give discretion in Clause 8—but the general will is there. Everyone understands what we mean. If this were carried, parliamentary draftsmen would knock the other clauses into shape tomorrow to make it work. I can give noble Lords a classic example of that. The next two amendments after this—
Lord Falconer of Thoroton
First, I congratulate my noble friend Lord Rooker, who knows the mood of the House much better than anyone else in it. It was a splendid victory. Perhaps I may also say how much I agree with his request for the list of concessions. I can help him on that. I was handed them at 2.29 pm this afternoon, and I have to say that they do not amount to very much, I am afraid. I obviously support the amendments that my noble friend is proposing. In effect, they make whole the amendment passed in Committee.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Rooker, for moving the amendment, as he said, on behalf of the coalition. He described the reasons for it. The Bill as it stood was defective, because, while the noble Lord specified that the referendum had to take place before 31 October, there was no means for identifying when the date had to be set—hence the need for an order.
The amendment also sets an appropriate test for Ministers to satisfy before using any order-making power, whereby,
“it is impossible or impractical for the referendum to be held on 5 May 2011, or that it cannot be conducted properly if held on that day”.
The test is right, because the referendum date can be moved away from 5 May only for practical reasons. It would be wrong, and have very serious implications, if the reason for that was the result of some delay that had not allowed consideration of the Bill to be completed in time.
The associated amendment to Clause 4 is also necessary in this context to ensure that the scheme which the noble Lord, Lord Rooker, envisages is properly workable. It provides a new power to make provision in secondary legislation to take account of a situation in which other polls are due to be held on any other referendum date set by the order.
Clause 4 as it stands will ensure that any poll which that clause already mentions is automatically combined with the referendum if it takes place on a new date set for the referendum. Any polls which Clause 4 does not mention would not be combined with the poll. It is impossible to say at this stage whether it would desirable to combine a referendum with other polls. A decision on that would need to be taken at the time and will depend on the types of polls.
In conclusion, I reassure noble Lords that, given the flexibility that these powers need to provide, any order made using the new powers will necessarily be subject to the affirmative resolution procedure. I end on a note of caution, because I cannot speak on this subject without saying how unfortunate it would be if the referendum were not to take place on 5 May.
Lord Forsyth of Drumlean
My Lords, can my noble friend comment on the concern expressed north of the border about the coincidence of the referendum and the elections to the Scottish Parliament, and the difficulties that returning officers will have in ensuring that the count is available? The results may not be available on the Friday and be delayed. Will this be a problem, and have the Government any plans to avoid the difficulty whereby Members of the Scottish Parliament will not know for some time whether they have been elected and the position of the Administration in the Scottish Parliament, because of the difficulties of counting both polls at the same time?
Lord Wallace of Tankerness
The noble Lord, Lord Foulkes, has an amendment later that will give us an opportunity to discuss the linkage of polls. I repeat what I said in Committee last week: it is certainly intended that the votes for the Scottish parliamentary election will take precedence over the counting of the votes in the referendum. Inevitably, there will have to be verification, because Scottish election votes may be found in ballot boxes intended for the referendum. It must be for returning officers and counting officers to determine their own arrangements, because issues of tiredness have come up in the past. It is certainly anticipated that we will not have to wait until Saturday for a result.
My noble friend Lord Forsyth expressed concern about the forming of an Administration. I have been involved twice in forming an Administration after a Scottish election. If the result had been known on the Saturday or even the Sunday, it would not have made much difference. However, that is by the way, because the intention is that the counting of votes for the Scottish election will take priority over the referendum.
Lord Forsyth of Drumlean
I do not wish to detain my noble friend. I understand what he said in Committee, namely that the counting of votes for the Scottish election will take priority. However, the issue is whether the process of validating the ballot papers will result in the election result being delayed. I have no idea what the results of the election will be, but it is conceivable that one political party will have a majority. It does not follow necessarily that there will be a period of the kind that my noble friend described. Given that the Government have decided to hold the referendum at the same time as the Scottish elections, they have an obligation to make sure that the result of the Scottish elections are delivered on time and are not disrupted.
Lord Wallace of Tankerness
I will add that they should also be delivered accurately. Therefore, this is a matter for the returning officers and counting officers, who are best placed to judge whether counting should start immediately or the following morning.
Lord Foulkes of Cumnock
For once, I agree 100 per cent with the noble Lord, Lord Forsyth—the noble Lord, Lord Baker, looks very worried. I draw the attention of the noble Lord, Lord Forsyth, to Amendment 5F on page 3 of the revised Marshalled List. If the Government were willing to accept the amendment—or even better, if the Committee were to accept it—that would deal with what the noble Lord, Lord Forsyth, wants, for exactly the reasons that he put forward, which are sound and sensible.
Lord Wallace of Tankerness
My Lords, we will return to this issue when we debate Amendment 5F. I look forward to the contributions of the noble Lord, Lord Foulkes, when he moves it, and of my noble friend, Lord Forsyth. We will debate this more fully at a more appropriate time.
Lord Kilclooney
We now know the order of priority in Scotland, but the situation in Northern Ireland is getting more confusing. In the past few days, there have been many complaints about having three elections on the one day. Will the Minister tell the Committee the order of the three counts in Northern Ireland?
Lord Wallace of Tankerness
When we debate Amendment 5F, I will be able to give a clear answer to that. I do not wish to hazard a guess at this stage. I think that there has been a statement from the chief counting officer, who is the chair of the Electoral Commission, that the counting of the referendum will start at 4 pm on the Friday. I will confirm that that statement has been made, and what the order will be in the Northern Ireland elections. I think that I am right in saying that some of them are conducted on the single transferable vote, which itself takes time—I put it no higher than that. Amendment 5F does not necessarily include Northern Ireland, but now that the point has been raised I will certainly be in a position to answer the noble Lord when we come to debate it.
In conclusion, the Government still wish to see the referendum take place on 5 May. The Electoral Commission and the electoral administrators are ready. The public also will be ready, and the Government would consider it a very grave matter indeed if the referendum did not meet the 5 May timetable. In the spirit with which the noble Lord, Lord Rooker, moved his amendment, I am happy to accept it and thank him for his constructive engagement.
Lord Wallace of Tankerness
The noble Lord, Lord Campbell-Savours, has, as the noble Lord, Lord Neill of Bladen, has indicated, proposed an amendment which would take out the option of the alternative vote in a referendum and ask whether the system should be changed and a different system of electing MPs be introduced at the next general election. As the noble Lord said, a variety of different systems have been suggested.
I do not believe for a moment that this would lead to any clear outcome, even if this was the question that was asked. The public might reasonably be confused. What other system of elected MPs would be introduced? What kind of campaign would take place where perhaps a variety of different systems were being canvassed? How would the campaigns in this referendum marshal their arguments and present their case? You would get differing factions, with those who might want a single transferable vote, those who want the supplementary system and those who want the alternative vote. It would result in more questions being asked than answers being provided.
However, I can see that the main point that the noble Lord is trying to make is that there should be further thought on the system, if any, that should replace first past the post. I always find it touching when noble Lords opposite make speeches which appear to have the best interests of the Liberal Democrats at heart. It is very moving but, frankly, those who think that somehow the outcome of the negotiations might have been different were not actually there. Even to mention the possibility of the 1922 Committee being invited to endorse the single transferable vote only needs to be stated to show how unlikely an event that would have been.
Lord Howarth of Newport
Is it not a grievance to the Conservative Party that it can win more votes across the country, particularly in England, and still not be able to form a Government? Is the solution to its problem not then a system of proportional representation?
Lord Wallace of Tankerness
The noble Lord invited me to look to the best interests of the Liberal Democrats. I would not tread anywhere on looking at what might be considered the best interests of the Conservative Party.
If the referendum was on the question proposed by the noble Lord, Lord Campbell-Savours, and if the answer was yes, what would then be the follow-on from that? Would the Government propose a system that would have to be debated by Parliament? My noble friend Lord Newton of Braintree made a good point that you can ask the public if they want a change and if, they say yes, you then leave it to politicians to foist upon them what that change might be. Even if it was a question of, “Vote yes and we will set up a committee”, that is not really an appealing slogan on which to have a referendum campaign. Voters could reasonably claim that they had been cut out of a significant decision.
In moving his amendment, the noble Lord, Lord Campbell-Savours, said two things: that Parliament would take the final decision and that, inevitably, the next general election in 2015 would be fought on a different system from first past the post. Yet nowhere can Parliament be mandated to pass a Bill to make it an Act. We all know that a change in the electoral system would require primary legislation for it to come into law. If the voters have voted yes to wanting a change, what guarantee will there be that both Houses of Parliament would then manage to coalesce around what that particular change might be? It could be the worst of all worlds, with people voting for change and then finding that politicians have frustrated the change that they seek.
As has been made clear on a number of occasions, the attraction of the approach taken in this Bill is its clarity. We set out how the alternative vote system would work, as comprehensively done in Clause 9 and Schedule 10. Any questions about how optional preferential AV works can be resolved by looking at the Bill. That would not be the case with the noble Lord’s amendment. I urge him to withdraw his amendment and, if he seeks to push it to a vote, I invite noble Lords to vote it down.
Lord Campbell-Savours
Perhaps I can apologise for the somewhat staccato nature of presenting my amendment because I was caught short and could not work out finally which notes I had to refer to.
Let me answer the critically important question raised by the noble Lord, Lord Newton of Braintree. The facts are that no one, anywhere, has done any homework on how AV works. Maybe the Liberal Democrats have done some, to work out to what extent it will benefit them. In the event that the amendments had fallen in a different order today, I would have been able to produce earlier during our proceedings the evidence that I will produce under the next amendment—that is, figures which show that a complete miscalculation has been made by the Conservative element in the coalition as to how AV operates, drawing on the Dunleavy material from 1997. A lot of people have not done their homework and are presuming, because there is an item on the agenda that says “AV is presentable and works”, that somehow that is enough authority for Parliament to carry the legislation in the form that it has. No work has been done and, until it has been, it is highly irresponsible for any Government to present to the British electorate a question in the form in which this is currently being submitted. No work has been done.
All I was doing in my amendment was drawing attention to the fact that no work has been done and that all the electorate have to say is, “We do not want first past the post any more”. Then, Parliament could, by whatever means, with the aid of Government, establish inquiries to examine and evaluate all the systems and then come forward with recommendations. Let me be absolutely frank: once you have got rid of first past the post, due to the complexities of alternative electoral systems, it needs Parliament to decide on what system is selected. You cannot leave that very complicated question to the public. A complicated series of options—a whole of spectrum of systems—has to be placed in the event that you widen that offer to the electorate.
I stand by my amendment. Unfortunately, for whatever reason and the time factor, I will not have the opportunity of voting upon it today. After the next amendment, when I produce evidence of what happened in 1997, some Members of the Committee might well think, “I wonder what we are doing”. If I might put it bluntly, they know not what they doeth. I beg leave to withdraw my amendment.
Lord Foulkes of Cumnock
Or just one, which my noble friend Lord Grocott and I would prefer. Yet again last week, in spite of the fact that this House has said it on a number of occasions and other people have said it, the Liberal Democrats—and I absolve the Tories of this—were saying, and the Guardian was repeating, that everyone elected under the system being proposed will have the support of 50 per cent of their constituents. That is manifestly untrue, and it is about time that the Liberal Democrats stopped spreading these lies.
Lord Wallace of Tankerness
My Lords, the noble Lord, Lord Campbell-Savours, has moved an amendment which would change the referendum question to ask voters whether the supplementary vote system should be used instead of first past the post rather than the alternative vote system. It will come as no surprise, because it is the content of the Bill, that the Government are committed to providing for a referendum to be held on whether the alternative vote system should be introduced for elections for the other place. We had these debates on a number of occasions in Committee.
I know the noble Lord, Lord Campbell-Savours, has a degree of authorship of the supplementary system that is used in the London mayoral election. We have heard on a number of occasions his concern about the alternative vote provisions in the Bill. It is always very invidious to say how people might hypothetically have voted when that was not the system that was used. The comments made by the noble Lord and the noble Lord, Lord Foulkes, were quite legitimate points to be made in the referendum campaign, when the parties and the different participants will take their own view about the merits and demerits of the alternative vote system. I can confirm that under the provisions in the Bill, which the noble Lord, Lord Foulkes, accurately described, voters may express a preference for as few or as many candidates as they wish or, indeed, for one. As the noble Lord rightly said, that could mathematically mean that not all Members elected to the other place had secured 50 per cent. As we debated last week when we were considering the material now on the website of the Electoral Commission for discussion, which will be sent out to stimulate interest and to explain the proposition before the voters on referendum day, that point is made in the material that it will be putting out.
Clearly the noble Lord’s amendment to adopt the supplement vote system will limit voters’ choice in expressing preferences for candidates standing at the election as they would be able to express a preference for one or two candidates only. The Government are not persuaded that the AV provisions in the Bill should limit the number of preferences that any voter may express at an election. We consider that not limiting the number of preferences that a voter may express under the alternative vote will enable MPs to be elected with a broader level of support, although I make the qualification that as you can cut off and do not need to vote for everyone, it will not necessarily mean that an MP will achieve 50 per cent.
As my noble friend Lord Strathclyde explained in Committee, the Government believe that the optional preferential form of the alternative vote is the right form of AV to be put before the people. For elections to the House of Commons, voters will be able to express preferences and should be able to express as many or as few preferences as they choose. They should not have their ability to express preferences constrained in the way proposed in the noble Lord’s amendment. The optional preference form of AV avoids voters being forced to vote positively for political parties that might be distasteful to them, such as those on the extremes of politics. There is no indication in the amendment about how in detail the supplementary vote system would work. The attraction of the Bill as it stands is that for all the arguments that might take place about how AV works, the Bill sets out that process in Clause 9 and Schedule 10. Questions about how AV works can be resolved by looking at the Bill. That would not be the case with the amendment, which lacks clarity. I therefore urge the noble Lord to withdraw it.
Lord Bach
I understand that the supplementary vote system is used in mayoral elections. Indeed, on 5 May, there will be a mayoral election in what I describe as God’s own city, Leicester. It is the first mayoral election that will presumably be under the supplementary vote system. If the Government get their way on this, it will be slightly ironic that at the next general election the public will also be asked to vote on whether an alternative vote system in the manner set out in the Bill should be adopted for the United Kingdom for future general elections. Do the Government intend to do anything about the way SV is used for mayoral elections, or are they content with it for that but not for AV generally?
Lord Wallace of Tankerness
I think the noble Lord, Lord Campbell-Savours, helped to devise the system for mayoral elections that we have inherited. There are no proposals to change it. We are talking about elections to the other place. I have made it very clear that we see the merit of a system where preferences can be expressed as far or as little as individual voters wish. For the purposes of electing the House of Commons, we prefer it to the supplementary vote which by its very nature limits the extent of the preferences that the individual voter can indicate. On that basis, I ask the noble Lord to withdraw his amendment.
Lord Campbell-Savours
My Lords, the noble and learned Lord, Lord Wallace of Tankerness, said that the Government believe that it is the best system. I dispute that. If he looks at his notes, he will see that that is what he read: the Government believe that it is the best system. Perhaps he would like to check his notes, but I wrote his words down. I will stand corrected if I misunderstood what he said.
All I am saying is that the Government may believe it, but Conservative Back-Benchers in the House of Commons have never been confronted with a real discussion. People do not know how this system works. I challenge any Conservative Back-Bencher here today to tell me, to assure the House, that Conservative MPs in the other place know how this system works. When these matters were debated in the other place, there were about five Conservatives in the Chamber. Everybody was whipped in to vote as part of a contractual agreement within the coalition. There has been no discussion. I cannot understand why Ministers are not listening to their own people. Why not carry out a consultation even in these last days of dealing with the Bill. Why do they not carry out a consultation on their own Back-Benches? They may even, if I might modestly suggest, send them a portion of the contribution that I have made to the debate, drawing on the statistics that have been produced following the sample poll of 8,500 people in 1998. Maybe it is then that they will realise what they are doing. Ah, finally we have tempted one out of the box.
Parliamentary Voting System and Constituencies Bill
Lord Wallace of Tankerness Excerpts(13 years, 9 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, these are important amendments. I immediately take the point made by the noble and learned Lord on the follow-up to Committee. I regret any discourtesy that has been felt by the noble and learned Lord. While he was making his comments, I had the draft of a letter to him; I have now had it confirmed by the Leader of the House that it has been issued. It is dated with today’s date, so he might not have received it yet, but it is a fairly comprehensive letter that runs to almost three pages. I will not read it out or put it on the record. I apologise if the noble and learned Lord has not yet received it.
Lord Falconer of Thoroton
What on earth is the point of sending me a letter, which I have not had a chance to consider, that arrives after Report has started?
Lord Wallace of Tankerness
I can only confirm the factual position. I fully take the point that the noble and learned Lord has not yet had an opportunity to consider the letter. I have no idea when it was put into the system. I saw a draft earlier but was not in a position until now to confirm that it had been issued. As I indicated, I apologise for any discourtesy to the noble and learned Lord.
I turn to the two amendments. On the first one, as we explained in Committee, the Government introduced the clause to which the amendments relate in the other place after the Political and Constitutional Reform Committee identified an ambiguity in the current legislation—the Political Parties, Elections and Referendums Act 2000—over whether publication of material about the referendum by a media organisation in favour of a specific result would be caught by the spending restrictions that apply to the campaigning groups. Clause 5 provides that the costs of covering and reporting on the referendum in the media are not referendum expenses. In the interests of the freedom of the press, it would be wrong for the spending restrictions to apply in this way. I think that is common ground across the House.
The amendment moved by the noble and learned Lord seeks to add “referendum campaign” before “broadcasts” to line 7 of page 4. This would go against Schedule 13 to the PPER Act 2000, which sets out that,
“agency fees, design costs and other costs in connection with preparing or producing”,
referendum campaign broadcasts are to be included as referendum expenses. I am not sure whether it was the noble and learned Lord’s intention to exempt such expenses from counting, but the Government do not agree that this should be the case. Designated lead campaign organisations are entitled to free referendum campaign broadcasts in terms of airtime, but the expenses incurred in respect of the production of these referendum campaign broadcasts do and should count towards referendum expenses. Therefore, it would not be right to accept this amendment, which would exempt these production expenses from counting.
Another reason why we do not agree with the first amendment is that it would bring back the ambiguity that we sought to remove through Clause 5 by limiting the provision to referendum broadcasts only. It would not therefore cover other types of broadcast, as it was designed to when we added it to the Bill. The result would be to reactivate the question of whether any broadcast other than referendum campaign broadcasts would be caught by the spending restrictions as they are currently drawn. It would then be ambiguous as to what would and would not count as referendum expenses in other types of BBC or Sianel Pedwar Cymru broadcasts—such as news programmes and politics programmes—other than those for the referendum campaign. We all agree that the media play a vital role in building public awareness and presenting facts and opinions on the matters raised by the poll. This amendment could prevent media comment if the spending limit for referendum expenses was reached. This would not be right. That was also the view of the Political and Constitutional Reform Committee in the other place. We believe that accepting this amendment would go against the Committee.
We agreed in Committee to consider carefully the second amendment. I can assure the House that the Government have done so. I regret the lateness of the letter, but the position is set out in it. The Government agree with the principle that party election broadcasts should not be used as referendum campaign broadcasts. As was highlighted in Committee, there is a clear definition of what constitutes a referendum campaign broadcast under Section 127 of the Political Parties, Elections and Referendums Act—to which the noble Lord, Lord Soley, drew our attention. Any broadcast whose purpose or main purpose is to procure or promote an outcome in the referendum is a referendum campaign broadcast. Referendum campaign broadcasts can be made only by the designated lead campaign organisations. The current law therefore already provides that the purposes—or main purpose—of party election broadcasts must not be to promote or procure a referendum outcome. Therefore, we can be assured that party election broadcasts cannot be used by political parties as a significant referendum campaign opportunity. In a moment, I will come to the crucial point that the noble Lord, Lord Soley, raised.
Section 127 of the PPER Act provides a safeguard against a political party using a party election broadcast as a referendum campaign broadcast. However, it also provides appropriate leeway for broadcasters to make a judgment call as to whether material that a party might want to broadcast strays beyond mentioning the referendum in passing in an election broadcast and into the realms of what would become a referendum campaign broadcast.
Lord Falconer of Thoroton
Is the noble and learned Lord saying that, if one of the purposes of a political party’s broadcast—though not its main purpose—was to encourage people to vote in a particular way in the referendum, it would infringe Section 127 of the Political Parties, Elections and Referendums Act?
Lord Wallace of Tankerness
What I said was that, as I understand it, under Section 127, any broadcast whose purpose or main purpose—there is obviously a difference; a purpose is not necessarily a main purpose—is to promote a particular outcome would fall foul of Section 127.
The point I was trying to develop is that there is a judgment call to be made as to whether we recognise and accept that material that a party might want to broadcast that strays beyond mentioning the referendum in passing in election broadcast and goes into the realms of what then becomes, in terms of the Act, a referendum campaign broadcast. In one view, a statement that briefly refers to the referendum—the fact that it is taking place and sets out whether the party supports a particular outcome—is merely an expression of the party’s policy. Such a statement may be necessary to explain the policy platform of the party’s election campaign and may not qualify as referendum campaigning in a wider sense. If that is right, this sort of content may have a legitimate and logical place in a party election broadcast. Going further than that—for example, by setting out the arguments in support of its favoured outcome—may cross the line and move towards it being a broadcast that is subject to the limitations in Section 127. Obviously the Government are not the ultimate arbiter here and the views of the broadcasters are critical. However, this amendment would remove any ability for the broadcasters to take a flexible approach to these sorts of issues.
Having spoken with the broadcasters, the Government think that this sort of flexibility can be sensibly administered without causing undue harm to the referendum or election campaigns. Indeed, not providing that sort of flexibility might cause undue harm to effective and fair campaigning. There will be party election broadcasts for the Scottish Parliament, the Welsh Assembly, the Northern Ireland Assembly and local elections on 5 May.
We have discussed the technicalities of the noble and learned Lord’s amendment and how these party election broadcasts would be regulated in practice during a referendum period with colleagues from the Department for Culture, Media and Sport, representatives from the BBC and the Broadcasters’ Liaison Group, Ofcom and the Electoral Commission. It is clear that in matters of political broadcasting, particularly political advertising, broadcasters are frequently required to make a judgment about what constitutes correct practical interpretation of the legal requirements. The need for broadcasters to make a judgment in interpreting Section 127 of PPERA would not be unusual in this context.
I readily accept that on one view the amendment could be seen as helpful for broadcasters as it draws a black and white line in legislation as to what material can and cannot be included. The Government are concerned, however, that this approach would go against a well established system that is already in place for dealing with matters of party political coverage and would unnecessarily limit the ability of a party to show how its position on the referendum forms part of the wider policy platform on which it wishes to campaign in the elections on 5 May.
Lord Soley
I was trying not to intervene but I have to do so in view of what the Minister has just said. The type of statement that would worry me is if the party political broadcast was majoring on, for example, giving more power to the people—which might be about a range of things, local authorities or whatever— and it said, “If you vote this way or that way on the referendum, that will increase your power”. I suppose that we need to go back to the broadcasters on this, but I do not think that that ought to be allowed. The Minister makes a fair point; we want to allow the broadcasters flexibility but they need to be aware that a statement like that would be seen as giving significant support to the referendum one way or the other.
Lord Wallace of Tankerness
I am grateful to the noble Lord for the way in which he presents a very tricky and complex issue. I think I indicated that one of the difficulties was the possibility of limiting the ability of a party to show how its position on the referendum formed part of a wider policy platform. The point I have been trying to make is that broadcasters have experience in this matter. It is probably invidious for Governments to decide what goes too far and what is on the right side of the line. There is also a question of whether legislating to such specificity on the content of party election broadcasts could risk limiting a political party’s freedom of expression. I do not think that anyone here would wish that to happen.
Lord Tyler
I have had experience of this matter. Is not the reality that anyone preparing a broadcast will always err on the side of caution as it would be a very expensive scenario if broadcasters were told, “We think you are infringing the requirements of the 2000 Act”, and they therefore had to amend dramatically, or even withdraw, the intended broadcast? Therefore, I should have thought that the present flexibility is much safer than the provision which the noble and learned Lord is trying to include in the Bill.
Lord Wallace of Tankerness
My noble friend makes a fair point. The last thing any political party wants is to find that, after having spent money, the broadcast has to be pulled. I shall discuss in a moment approaches that have been made to the political parties by the chair of the Broadcasters’ Liaison Group. I suggest that the appropriate place for further rules on the content of party election broadcasts would be under the framework established by the Communications Act 2003, where existing regulation of political broadcasts lies. The chair of the Broadcasters’ Liaison Group wrote to the political parties in November 2010, highlighting the existing provisions and opening lines of communication on the subject. It might be useful to read the content of the letter into the record. It states:
“If you are considering including any references to the referendum in your PEB, then we draw your attention to Section 127 of the PPERA. This section prevents broadcasters from transmitting any broadcast where it’s purpose, or main purpose, is, or can be assumed to be, to further a referendum campaign for a particular outcome other than by the designated RBCs. Therefore if you intend to include any references to the referendum in your PEB, I’d be grateful if you could contact me well in advance so that the BBC is able to make a judgment about whether the proposed PEB may put it in breach of the statutory provision”.
It is the Government’s view that this established mechanism of communication between the broadcasters and the political parties will effectively manage the situation and answer queries from the political parties as to what they can and cannot include in their broadcasts. The broadcasters’ guidance is the most appropriate place to deal with this matter, as for other aspects of political coverage.
These are important amendments. I again apologise that the noble and learned Lord saw the letter at a late stage, but I hope that, given what I have said, he will recognise that a lot of consideration has been given to this, including engagement with the broadcasters, the DCMS and others. I hope that the House will agree with the Government’s conclusion that, after careful consideration with relevant stakeholders, the current provisions, along with the broadcasters’ guidance, are the right way to deal with party election broadcasts during a referendum period, rather than amendments to the Bill. Against that background, I ask the noble and learned Lord to withdraw the amendment.
Lord Rooker
I wish to move the amendment formally because it was connected to the earlier Amendment A1. I beg to move.
Lord Wallace of Tankerness
My Lords, while I note that the noble Lord, Lord Rooker, has moved the amendment formally, we discussed it in context earlier and it is important to recognise that it goes much further—
The Deputy Speaker
Amendment re-moved:
“Page 6, line 19, leave out ‘must’ and insert ‘may’”.
Lord Wallace of Tankerness
The amendment is re-moved but not removed—yet. I fully accept the spirit in which the noble Lord, Lord Rooker, re-moved it. As he recognises, this is not entirely consequential. We could get a turnout of 80 per cent and yet, with this change, we would still create a power rather than an obligation. I do not need to elaborate, as the point has been made. The Government cannot accept the amendment. In the spirit in which the noble Lord re-moved it, I ask him to withdraw it.
Lord Falconer of Thoroton
My understanding when I was a Minister was that, when an amendment was carried, the Government would bring forward amendments to tidy up the Bill to reflect the position in relation to the plain intent of the amendment—in this case, Amendment A1. We always did this and we expect the Government to make the rest of the Bill reflect the effect of the amendment of the noble Lord, Lord Rooker.
Lord Falconer of Thoroton
I apologise. I was keen to find out the position of the Government in relation to this. What the Chief Whip said was unhelpful. It is important for the Government to state their position.
Lord Wallace of Tankerness
My Lords, the vote took place only a few hours ago and the Government are still to consider how they will respond to it. In answer to the noble and learned Lord’s question, this is neither a consequential amendment, as the noble Lord, Lord Rooker, and I have indicated, nor is it a tidying-up one, because it does not tidy up. It goes much further than that. Indeed, it breaks the linkage, because it would make the power permissive rather than a duty. As I indicated, that could therefore mean that the power was there in any circumstance. Even if there was an 80 per cent turnout at the referendum with a 75 per cent vote in favour, the effect would not be to oblige the order to be brought forward to implement a yes vote. That was not what the House voted for and therefore I cannot accept the noble Lord’s amendment, which I think he fully understands.
Lord Rooker
I do. I do not want to fall out with my noble and learned friend but I accept the distinction that the Chief Whip gave in respect of this amendment. The position is the same as with Amendments A2 and 7B, where one is consequential on a change in the date. This looks simple and it is simple. The point is that the House knew what the situation was with the date change, just as it does with Amendment A1. In the morning after they have slept on it, the Government may take a view and say, “We’re going down the other place. We’re going to get this kicked out anyway”. That is a tough call when the support of the Cross Benches is taken into account. However, some rewriting of other parts of the Bill is required—it is not just a question of “may” or “must”—and I fully accept that. On that basis, I beg leave to withdraw the amendment.
Baroness Thornton
My Lords, I do not intend to address Amendments 12 or 15. The noble Lord, Lord Elystan-Morgan, spoke in the earlier debate on Amendment A1 moved by my noble friend Lord Rooker, and I follow his lead in saying that we do not intend to pursue these amendments.
Lord Wallace of Tankerness
My Lords, we have had another interesting debate on, as the noble Lord, Lord Lipsey, indicated, the difference between the amendments we are discussing here and those which were debated earlier. I only wish that the strength of the argument deployed by the noble Lord against thresholds had been sufficient to persuade everyone to abstention, even if I was unable to do that, but that did not happen.
The manuscript amendment from the noble Lord, Lord Grocott, which would mean that 25 per cent of the electorate would have to vote yes is a reflection of the amendment in the name of the noble Lord, Lord Davies of Stamford, which seeks that 33 per cent of the electorate should vote yes. We then have a straightforward 50 per cent eligibility to vote proposed by the noble Lord, Lord Grocott, and the amendment in the name of the noble Baroness, Lady Hayter, which the noble Lord, Lord Howarth, spoke to, regarding the individual constituent parts of the United Kingdom. I acknowledge also that the noble Baroness, Lady Thornton, did not speak to the amendment in her name and that of the noble Lord, Lord Elystan-Morgan.
I think the arguments against thresholds were put very eloquently by the noble Lord, Lord Lipsey, and are a cogent argument as to why the threshold-against turnout, particularly although not exclusively, does not necessarily lead to fairness compared with a straight situation where people are invited to vote and the majority wins. But the proposals that relate to a threshold that the yes vote has to reach are particularly pernicious. Earlier the noble Lord, Lord Lipsey, referred to the 40 per cent threshold that was imposed on the Scotland and Wales referendums in 1979. The Welsh referendum did not arise because there was a very strong no vote, but although 64 per cent of the electorate turned out in Scotland and a majority voted in favour of devolution, it was not implemented for another 20 years. It did not settle the question. It left, as the noble Lord, Lord Rooker, said earlier, a bad taste. Of all thresholds, it does not satisfy the electorate and particularly those who campaign and those who would seek a yes vote.
The amendment that the noble Lord, Lord Howarth, spoke to on behalf of the noble Baroness, Lady Hayter, would seek a requirement of a majority vote in England, Scotland, Wales and Northern Ireland, rather than a simple majority of all votes taken together. This is a UK-wide referendum on what the electoral system should be to elect the House of Commons in the United Kingdom Parliament. I believe it transcends particular localities or regions. The pros and cons of the system will be debated and considered by people regardless of where they live.
In Committee, the noble Lord, Lord Lipsey, uttered words of caution against this kind of amendment. He said that,
“to seek to set one nation within that kingdom against another kingdom is neither desirable nor wise”. [Official Report, 20/12/10; col. 827.]
The noble and learned Lord, Lord Falconer, rejected this type of amendment because,
“we should do everything to promote coherence in the United Kingdom. That means that, where we are voting on a national voting system, implementation of any referendum should be guided by what the national vote is”.—[Official Report, 20/12/10; cols. 843-4.]
If we were to find, for the sake of argument, that the rest of the United Kingdom—Wales, Northern Ireland and England—had substantially voted in favour of a change yet Scotland had a narrow majority against, it would be unacceptable that that one country with a narrow majority against should effectively exercise a veto over all other parts of the United Kingdom.
Noble Lords who have spoken to their amendments have indicated that they are not going to press them given the vote that was taken earlier. On that basis, I ask the noble Lord, Lord Davies of Stamford, to withdraw his amendment.
Lord Falconer of Thoroton
My Lords, my name is on this amendment as well. To slightly increase the excruciation for the noble and learned Lord, it is impossible to understand what the basis of the conditionality is. Assume that 99 per cent of the population were to vote in favour of changing the system to AV, even if something happened to prevent the Boundary Commission changes being introduced, then, as I understand the Government’s position, they will not introduce AV. Why is that? What is the logic? The only logic must be some sort of political deal. Honesty would help the noble and learned Lord a lot.
Lord Wallace of Tankerness
My Lords, these amendments, as the noble Lord, Lord Lipsey, has indicated, seek to undermine, even remove, the link between the commencement arrangements for the AV and for the constituencies parts of the Bill. Anyone who has ever been a political realist would recognise that in terms of a coalition one part of the Bill—the first part—had greater salience and resonance with the Liberal Democrats, and the same applied to the Conservative Party when it comes to Part 2. I believe in equality of votes across the United Kingdom and I have not had difficulty, therefore, in arguing that case.
The issue of linkage has been one which we have debated from the outset. The noble Baroness, Lady McDonagh, raised an issue about it as we started Committee stage and withdrew her amendment, and the parties and the coalition Government have made it very clear that these two parts are linked. The question has been raised—it was hinted at by the noble Lord, Lord Lipsey—as to why, if the referendum does not produce as successful an outcome as the Liberal Democrats would wish to see, we are tied in, as it were, with the boundary change. Quite apart from the fact that, as I have already indicated, there is something right in principle about trying to seek greater equality among constituencies, as a liberal and a democrat I would find it very difficult to say, if the people had expressed their view in a referendum and said no, that somehow or other we should try and thwart another part of this Bill which is linked.
There is nothing wrong in parties entering into an agreement that they then make their best endeavours to deliver; in fact it is honourable and perfectly proper. I believe both parts of this Bill hang together and are linked. They give the people a say as to whether they want to change the way in which the House of Commons is elected while also ensuring that the House of Commons is elected, be it on first past the post or on the alternative vote, in constituencies that are much nearer to being equal.
On that basis I would invite the noble Lord, Lord Lipsey, to withdraw his amendment.
Lord Lipsey
As the Minister was making his remarks the unworthy thought occurred to me that perhaps we should have a referendum on the constituency changes. You would get a jolly good turnout in Cornwall and people in the Isle of Wight would be flocking to the polls with those from Brecon and Radnor and Anglesey, all to say no to this. Then the Minister would be able to say, “As the British people have spoken, I cannot force this down their throats”. That perhaps is a little too much. The boundary changes will no doubt, if agreed by this House and by Parliament, go ahead at the end of the day. There seems little point in pushing the matter any further and I therefore beg to withdraw my amendment.
Lord Howarth of Newport
My Lords, Amendments 16B, 16C, 16E and 16F are intended to substitute for the optional preference AV system the obligatory preference AV system. We touched upon this issue in an earlier debate, and on the first day in Committee my noble friend Lord Campbell-Savours spoke very powerfully indeed on this topic. I none the less ask your Lordships’ indulgence to permit me to say a very few words about this because it is an issue of prime importance in this Bill.
My amendments, if they are technically valid, would replace the Queensland system, which is what the Government are proposing in the Bill, with the Australian federal system, and there is a very important difference. If you are voting in an Australian federal election to the Australian House of Representatives, you are required to vote for all the candidates on the ballot paper in the order of your preference. If you fail to do so, your vote is invalid. In the optional preference version of AV that applies in Queensland, you do not need to vote in order of preference for all the candidates; you may, if you prefer, vote for only one candidate. It is quite instructive to see what has happened in Australia over the years. The system that now operates in Queensland was introduced in 1992. Initially, when that was done, very few voters failed to express all their preferences in rank order, as had been their tradition—only about 20 per cent, initially. However, as time went by, more and more of them realised that they did not need to cast all these preference votes and they stopped doing so in very considerable numbers.
The turning point came in 2001, as my noble friend Lord Campbell-Savours told the House in Committee, when the Australian Labor Party ran a “just one vote” campaign, because it had realised that it was more likely to be in the interests of their candidates that they should discourage people from exercising all the preferences that they might. To concentrate all their votes on one candidate is termed “plumping”, a term originally coined in 19th century England when elections to school boards were introduced. Under that system, an elector was permitted to exercise perhaps 20 votes—a vote for every member of the school board—but they were allowed to cast all their votes for the same candidate. The object of that provision was to try to ensure that representatives of Christian minorities were represented on school boards. However, what actually happened in practice, very interestingly, was that it was organised that people would plump or concentrate their votes in support of women candidates, because it was felt to be desirable that women should serve on school boards. That plumping was very beneficial to the feminist cause in the 1880s and thereabouts. The term has been borrowed in Queensland.
The result of the practice of plumping in Queensland, as we are told by the academic authority of Messrs Rallings and Thrasher from the University of Plymouth, is that in 2009, 63 per cent of those who turned out at the state elections in Queensland voted for just one candidate—and, in some constituencies, the proportion was as high as 73 per cent. Even when the political parties urged their supporters to use their preference votes in the manner associated with AV, they did so decreasingly. For example, the Greens urged their voters to exercise all preference votes, and to exercise their second preference in support of Labor, but very large numbers—46 per cent—of those who gave their first preference to the Greens did not do so; they made no other choice. We have seen the same effect in the London mayoral elections, where there is a modified version of AV in the supplementary vote system. A significant percentage—perhaps one in five voters—vote for only one candidate.
I am not a supporter of AV, but if the proponents of AV want to see the benefits that they profess that AV would confer, I suggest that they would do better to have the proper AV system—the obligatory preference system—rather than the one that is being proposed in this Bill. If we have only optional preference voting under AV in this country, it will rapidly turn into a pretty close replica of the first past the post system. People will scratch their heads and ask why on earth they have been through all this palaver, why we have had a referendum, and why—if they did so—they have voted for an alternative vote system that turns out to be remarkably similar to the first past the post system that they have rejected. This needs very careful thought, and it is not too late for the Government to give it that thought. I beg to move.
Lord Wallace of Tankerness
My Lords, the amendment moved by the noble Lord, Lord Howarth of Newport, would provide that, under the alternative vote system, voters would be required to express a preference for every candidate standing at the election. As he indicated in moving his amendment, we had some debate on a related issue earlier in the evening. In the Bill as drafted, by contrast, voters may express a preference for as few or as many candidates as they wish—indeed, as the noble Lord, Lord Foulkes, observed, even just for one. We believe that this approach gives maximum choice to voters. We would not support a system where voters were required to express preferences for all the candidates standing at the election.
In Committee, my noble friend the Leader of the House explained that the Government believe that the optional preferential form of the alternative vote system is the right form of AV to be put before the people. There is a genuine issue here and a genuine debate, but we believe that for elections to the other place, if voters are to be able to express preferences, it is only right that they should be able to express as many or as few preferences as they choose; their ability to limit their preferences should not be constrained in the way that the noble Lord suggests.
Furthermore, the optional preferential form of the alternative vote avoids putting voters in the position where they are obliged to vote positively and to give a preference for political parties that may be wholly distasteful to them, such as those on the extremes of politics. Indeed, it is not impossible that people might be dissuaded from casting a vote at all if they felt that they had to go to the ballot box and put a number beside a party that they found extremely abhorrent. That would be the opposite of what those who support the alternative vote would say is the aim of using it as the system for electing Members to the House of Commons.
The noble Lord, Lord Howarth, mentioned Australia. In those elections where a compulsory form of AV is used, voters must indicate an order of preference for every candidate on the ballot paper, as he described, in order for their vote to be valid at all. The noble Lord’s amendment does not specify what would happen if a voter did not express a preference for all candidates. Would that vote be declared invalid? It is not clear what would happen in those circumstances. There is a danger, of course, that it could risk disfranchising voters who did not wish to express a preference for all candidates standing at the election. Against that background, I urge the noble Lord to withdraw the amendment.
Lord Rooker
I am reluctant, but I cannot resist this, because of what happened in Committee. The noble and learned Lord has just deployed the case against the compulsory system and I agree with him on that, but is it the case that when the AV system in the Bill, the optional system, comes to be deployed, the Deputy Prime Minister will not be able to cite a single other democratic country where it is used to elect the national parliament—not one? Have I got that right? I have missed something in the debate otherwise. In other words, we are saying that it is better than the compulsory preference system, but nobody uses it to elect a national parliament. All the examples given tonight—and the provincial elections in Canada can be used as well—are for state parliaments and state Governments in Australia, not for the national Parliament. The national House in Australia, of course, has the compulsory preference system. This optional AV system is not used anywhere else in the world, but that is what is going to be offered to the British people. Have I got that right?
Lord Wallace of Tankerness
The simple answer is that I do not know and I would not want to confirm something that I do not know.
Lord Wallace of Tankerness
The noble Lord, Lord Campbell-Savours, says from a sedentary position that it is right. Be that as it may, the noble Lord, Lord Rooker, prefaced his remarks by saying that he did not support the compulsory system and preferred the optional preferential system. If we believe that that is a better system than the compulsory system, I think that that is what we should stick with. If it is the case that there is not another national legislature that does it, so be it—we are devising a system for the House of Commons.
Lord Howarth of Newport
My Lords, I think that it is clearly implicit in my amendments that, if people did not use all their preferences, their vote would be invalid, as is the case in federal elections in Australia. The noble and learned Lord rejects what I suggest; be it on his own head. If Ministers in the Government wish to make a botch of their attempt at electoral reform, so be it. I beg leave to withdraw the amendment.
Parliamentary Voting System and Constituencies Bill
Lord Wallace of Tankerness Excerpts(13 years, 9 months ago)
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Lord Howarth of Newport
My noble friend has a great talent for a kind of lateral thinking that is always fruitful in our debates. His point is a little wide of the amendment; I must reprove him to that extent. However, it would be rather curious if we were to be presented with legislation that proposed that in elections for police commissioners, police officers should not be entitled to play a part or exercise any persuasive powers.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
I thank noble Lords who have taken part in this debate and highlighted some interesting aspects. I suspect that parts of the 1983 legislation have not been visited for some time. To take the general point, I am not aware of any moves afoot to review electoral law in this way, but I am sure that those in the responsible department will take note of what is said with regard to the generality.
The noble Lord, Lord Howarth of Newport, referred to this disparagingly as a cut-and-paste job. The schedule seeks to ensure that as far as practically possible, the existing rules governing the registration for and the conduct of parliamentary elections should apply in the case of the referendum. As is very obvious, in order to take account of this, there have had to be changes in terminology. For example, it would not make sense to have references to candidates when there are no candidates in a referendum. To do that, people had to go right through.
I was asked whether this section of the 1983 Act would be considered for revision in future. We will want to look at that, but it is right that we base the referendum on the rules that we know. If I had come to the House with subtle changes, I would have had a difficult job trying to explain them, and no doubt some noble Lords would have thought that a great conspiracy was afoot. In future, we will be happy to review the provisions, but I cannot honestly say that it will be done quickly—certainly not in time for Report. However, I do not think that that was what was asked: I think that the request was to look at this more generally.
I will respond to specific points. I do not have the information about whether there have been any convictions under Section 61 of the Representation of the People Act. That is a matter for the courts and I am advised that the information is not collected centrally. The provision with regard to voting on one’s own behalf or by proxy, to which the noble Lord, Lord Campbell-Savours, drew attention, is intended to cover the situation where one can vote on one’s own behalf and also by proxy on someone else’s behalf, but one cannot vote twice on one’s own behalf.
That brings us to the question of postal votes. There is a danger of Members of the Committee getting into their anecdotage. The noble Lord, Lord Maxton, asked whether, if you have a postal vote in one place but are registered in another, as Members of Parliament have been, you could vote in another place even if the postal vote had been issued. I know the answer because in the 1989 European elections I had a postal vote in the Highlands and Islands constituency, for which I was a Member of Parliament, and I was living in London. Local elections were on the same day and it took me a long time to persuade the polling clerk not to issue me with a ballot paper for the European elections because I had already voted and it would have been an offence to vote again—whereas I did want to vote in the local elections. I do not know how I knew about it, but I did. Perhaps it is important, as the noble Lord, Lord Campbell-Savours, pointed out, that the information should be in the material that will go out to those who receive a postal vote that they may not vote more than once.
Lord Maxton
In that case, is the Minister saying that it will be the responsibility of the person who is registered to make sure that they do not receive a postal vote for the referendum, rather than it being noted on some form of national register?
Lord Wallace of Tankerness
The thing to say is do not use it, or, if you have used it, do not take the second vote. The important thing is that nobody votes more than once.
Lord Campbell-Savours
My noble friend Lady Golding intervened to correct me. However, it still leaves a question in my mind. If the application for the postal vote has been made immediately prior to the election, how can we be sure that the officers in the polling booth have before them an electoral register that has been updated to include the mark that my noble friend Lady Golding referred to? I do not expect the Minister to reply on that point now, but he might wish to check and let us know the position on Report or in writing.
Lord Wallace of Tankerness
I will certainly check and advise the noble Lord, and other noble Lords who have contributed to the debate.
Lord Wallace of Tankerness
As one who stood for election on I do not know how many occasions, I shall not tangle with one of the best agents that my party has ever known.
Baroness Golding
I realise that the noble and learned Lord does not wish to tackle one of the best agents, but there is an emergency postal vote if you are taken into hospital. I say as an agent that one of the best agents seems to have forgotten that.
Lord Wallace of Tankerness
If a person who has been taken into hospital requires an emergency postal vote, it is highly unlikely that they will turn up at the polling station because, by definition, they are in hospital.
The general point is made. There is a responsibility on the citizen not to vote twice in the same election. I should have thought that that was a well known rule. The other point which seems to be agreed across the Committee is that it is important in this referendum that we use the rules that have been in place for 28 years. The time may be coming for them to be reviewed, but that will not happen before the referendum. We are safer, in terms of running a smooth referendum campaign, using rules that are tried and tested.
“( ) Regulation 11 of the Local Authorities (Conduct of Referendums) (England) Regulations 2007 has effect as if the reference to regulation 10(1) or (7) included a reference to section 4.”
Lord Wallace of Tankerness
My Lords, Clause 4 makes it clear that the local government referendums in England can be combined with the referendum on the voting system. The amendment is required to make clear which set of rules applies to govern the conduct of the poll, should such a local referendum be combined with the referendum on the voting system in voting areas where no other relevant local election is taking place. Although we have yet to receive confirmation of where, if any, local government referendums will be held on 5 May, this minor amendment is important to clarify which set of rules would, in that eventuality, apply to govern a combination of such a poll with the referendum on the voting system. I beg to move.
“( ) Regulation 116(1) of the Representation of the People (England and Wales) Regulations 2001 (S.I. 2001/341) has effect in relation to a relevant election as if the reference to documents forwarded under rule 55(1)(e) of the elections rules were to documents forwarded under rule 50(1)(a) of the referendum rules as applied by this paragraph.”
Lord Wallace of Tankerness
I shall speak also to the other amendments in this group, all of which are related. Indeed, they relate to each of the combination schedules and have been grouped to ensure that there are equivalent combination provisions across the whole of the United Kingdom.
The overall purpose is to ensure the smooth running of the provisions in Schedules 5 to 8, which relate to the provision of, access to and retention of documents at a combined poll. The amendments are technical and will make certain that the right documents are available to the right officers at the right time, and are retained by the right officers after the polls are over.
I do not intend to go into this matter in great detail, unless pressed, but noble Lords may be interested to note that the amendments provide that at the end of a combined poll there is the same obligation on the registration officer or counting officer to provide access to and supply copies of combined election documents that would have existed if the election had been taken alone. In England, Wales and Scotland, the counting officer will be provided with the necessary lists and other election documentation and information needed to carry out his or her functions in relation to the combined elections that are transferred to him or her. For example, we have specifically provided that as soon as practicable after 5 pm on the sixth day before the poll—that is, after the date for applying for a proxy vote has passed—the registration officer must provide the counting officer with the absent voting lists for any elections which are combined with the referendum in his or her voting area.
An equivalent provision is not needed for Northern Ireland because of the chief electoral officer’s role as both a returning officer for the election and counting officer for the referendum. Other provisions specifically relate to documentation in Northern Ireland, including a court order for the production of a combined corresponding number list retained by the chief electoral officer for Northern Ireland, which can be obtained where necessary in relation to a local election offence or petition, in the same way that such an order could have been obtained if the document had been retained by an officer of the relevant council.
I should also advise the Committee that the Electoral Commission, the Association of Electoral Administrators, the Northern Ireland Office, the Scotland Office and the Wales Office have confirmed that they are content with these amendments. I beg to move.
Lord Bach
My Lords, I thank the Minister for introducing his amendments. I have a simple question. Why are they being added now when I think a number of amendments were added at the latter stage in the Commons proceedings on the Bill? Was this something that was omitted or has it just been thought up? I am talking about Amendments 122F, 122H and 122K, which all refer to the same thing. I can see its importance and we do not oppose it, but why does it appear now when everything else in Schedule 5 was there at the time of the proceedings in another place?
If the noble and learned Lord does not have the answer by the time I sit down, he can write to me. This seems quite important so I am interested to know why it was not added before.
Lord Howarth of Newport
Let me provide a little more time for officials to advise the noble and learned Lord. I should be grateful if he would advise the House on the means of communication whereby these minor, technical but none the less significant changes will be communicated to those whose duty it is to carry out the relevant functions. How much complexity is there in that and will training be needed? How will the system ensure that all those who need to know about these changes being made at a late stage actually know, given the short-ish interval between enactment and the date of the referendum?
Lord Wallace of Tankerness
My Lords, I understand that through scrutiny of the legislation it was noticed that these points needed to be added to the Bill. In answer to the noble Lord, Lord Howarth of Newport, the schedules are combination schedules. He referred to training. What was going to happen would happen anyway. For the sake of argument, if it was an election to the Welsh National Assembly, now that there is a combined election it would bite on both ballots. In that regard the chief counting officer is responsible for the referendum and there is communication there. My information is that these points have already been communicated to administrators who have commented on the provision. As I said when I moved the amendment, the Electoral Commission and the Association of Electoral Administrators have already confirmed that they are content with the amendments. In other words, it is very much into the system already and I am confident that they will be well communicated.
“Provision of registers etc to counting officerRegistersRegulation 98 of the Representation of the People (England and Wales) Regulations 2001 as modified by Part 3 of Schedule 4 above applies for the purposes of a relevant election as it applies for the purposes of the referendum.
Absent voters listsAs soon as practicable after 5 pm on the 6th day before the date of the poll, the registration officer must provide the counting officer with the following lists, and any subsequent revised lists or revisions to the lists—
(a) the list of proxies for each relevant election;(b) the postal voters list for each relevant election;(c) the proxy postal voters list for each relevant election.Personal identifier informationWhere proceedings on the issue and receipt of postal ballot papers are taken together by virtue of regulation 65 of the Representation of the People (England and Wales) Regulations 2001, paragraph 7C of Schedule 4 to the Representation of the People Act 2000 has effect as if a reference to a returning officer were a reference to the counting officer.”
Lord Wallace of Tankerness
I wondered when it was going to stop. In dealing with these schedules, it is important that these questions are asked. Perhaps I may start with the question raised about the schedule by the noble Lord, Lord Campbell-Savours, which was picked up by the noble Lord, Lord Grocott, with regard to the combination of the polls. As was articulated by the noble Lord, Lord Campbell-Savours, rule 5 provides for the cost of the combined polls to be equally apportioned between them. For example, in the case of a combined referendum on the voting system and the local government elections in England, the costs would be split 50:50 between the Consolidated Fund and the local authority concerned, except for those items that can be expressly and readily identified as being attributable to either one or the other.
As regards the costs that we are comparing, if you took the local elections—for the sake of argument, the Scottish Parliament election or the Welsh National Assembly election—on their own and added all the costs of a separate election with regard to the referendum, it is that compared with what the cost would be of combining the polls. I am advised that in calculating the cost, the assumptions take into account all the additional costs arising from the combination of polls. Overall, it would lead to a saving because, obviously, if the costs are split between the Consolidated Fund and the local authority concerned, there will some saving too for the local authority. I am advised that there is information in the Library of the House which sets out further detail on the costs.
Lord Maxton
Given the assurance that the Minister gave last night that in the Scottish situation the parliamentary vote would come first, can he therefore say that in terms of ballot boxes there will always be two in Scotland—one for the Scottish Parliament elections and one for the referendum? If there is not, there are some areas—particularly, oddly enough, in some of the more remote areas which the noble and learned Lord will know—where the transportation of boxes to the count is done by boat. This could cause problems if there were delays or whatever and the counting could not be started on one before the other was sorted out.
Lord Wallace of Tankerness
I do not quite follow that because if there is a delay because of weather or transport, it will affect both elections. I can recall times past when local elections in Scotland and Scottish parliamentary elections were on the same day. Even when there were separate ballot boxes, it was still necessary to check them both to ensure that a ballot paper had not inadvertently been put in the wrong box. I think that different colours of ballot papers are used so that they are readily identifiable. I would imagine—it would seem to be common sense—that, even where two ballot boxes are used, it would still be important to make sure that ballot papers had not been put in the wrong box. It is important that every vote is counted.
Lord Campbell-Savours
Does the Minister accept that it is bound to cost more money if there is one box which has to be separated in the counting station? Is there not a responsibility on the Government to try to save money?
Lord Wallace of Tankerness
My Lords, I do not necessarily think that it is bound to cost more money. But overall it is clear that there are savings to be made. As I have indicated, a note has been provided on this. If there is a relatively small electorate at a polling station, it does not necessarily make sense to have two ballot boxes. With regard to the question about whether there would be enough ballot boxes, the Electoral Commission is asking all counting officers to ensure that they have sufficient equipment to run the poll effectively, which obviously includes ensuring that a sufficient number of ballot boxes are provided to all polling stations in the United Kingdom.
Baroness Liddell of Coatdyke
I have a question for the noble and learned Lord which I was going to ask in relation to Schedule 7, but in the interests of trying to keep things moving along rapidly, I shall do so now. Will he address the issue raised by the Electoral Commission about the difficulty of a declaration in relation to the results of the Scottish parliamentary election? The Bill states quite clearly that there may be no declaration in the parliamentary count or any count until the verified ballot papers have been notified. If the count for the parliamentary election is done before the count for the referendum, will we not end up with a fairly enormous muddle where it will take some hours before there is any declaration on the parliamentary count? Will the noble and learned Lord undertake to take a look at this and perhaps respond on Report? Unnecessary complexity seems to have been built in.
Lord Wallace of Tankerness
I certainly undertake to come back and give some clarification to the noble Baroness and many others who are interested in this matter. I confirm what I said yesterday to the noble Lord, Lord Maxton—that it is intended that the result of the Scottish election should be declared ahead of that of the referendum. As I also indicated, it took some time to put together a Government in Scotland on the previous three occasions. Nevertheless, it is intended that that election should be the priority.
The combined rules in the Bill require all ballot papers to be separated for each of the three polls before the verification process can commence. Even if there are two polls, it still has to be verified that ballot papers have not been put in the wrong box. There are also provisions which require all ballot papers for each of the three polls to be verified before any of the counts can conclude. This ensures that all ballot papers will be accounted for and included in the appropriate count. If people cast their vote, it is important that it is then counted.
Lord Howarth of Newport
In that connection, I would be most grateful if the noble and learned Lord would deal with one other point: the position of the Government—on which we disagree with them—that the results of the referendum should not be declared constituency by constituency. What aspects of the arrangements for the count set out in the schedule are designed to ensure that it will not be possible for party agents and others who are present at the count, for very valid reasons, to make a pretty shrewd assessment of the sizes of the piles of ballot papers and to estimate the result constituency by constituency? What safeguards are built in to prevent that?
Lord Wallace of Tankerness
My Lords, I never cease to be amazed at the ingenuity of observers at counts in trying to work out what is going on. Even in European elections in the past where ballot papers have been verified on the Thursday night with the count deferred until the Sunday—and, in the case of the Highlands and Islands, the Monday—some people have still managed to have a pretty shrewd idea of the results. It might be asking the impossible, no matter what was put into statute.
A number of important questions have been asked. The noble Lord, Lord Foulkes, asked about the separate registers. There will be two registers, but an accounting officer, who has most experience of local circumstances, can decide to merge them. If, for example, he or she is aware that in a particular area some voters would be on one register but not on the other, they may choose to have one register. Each elector is marked to show which election he or she can vote in.
The noble Lord, Lord McAvoy, asked about the definition of the area of control of a presiding officer. The area of control is not covered by the Bill. The Electoral Commission feels that that would be better dealt with in guidance, as with all previous elections. That goes also for mobile hoardings. I am sure that those of us who have fought elections or been agents in them will recall that opposing parties or campaigns are not usually slow to object or make representations if they feel that some trickery is up whereby messages are being obscured by the other side. The Bill says “inside and outside” polling stations. I do not think that a 40-tonne truck will be able necessarily to obscure a notice inside a polling station.
Lord Maxton
As someone who, like the noble and learned Lord, has been involved in elections, I know that there is sometimes great variety even within the same constituency and even from one school to another. If I am a candidate and walk in with my rosette on my lapel, I am told to take it off in one school but not in the next. Are there any guidelines to be given on that?
Lord Wallace of Tankerness
My Lords, it is a matter of local discretion. Elections have worked well in these respects. When I fought the European election in 1979 in the south of Scotland, I was forbidden to wear my rosette in the Galloway part of the constituency but reprimanded for not having one when I went without it into the Roxburgh, Selkirk and Peebles parts—they thought that it had been a pretty colourless election up until then and wanted to see a bit of colour.
“( ) Regulation 121 of the Representation of the People (England and Wales) Regulations 2001 (S.I. 2001/341) has effect in relation to an Assembly election—
(a) as if, in the definition of “relevant Assembly election documents”, the reference to rule 69(1) of Schedule 5 to the 2007 Order included a reference to rule 52 of the referendum rules as applied by this paragraph;(b) as if, in paragraph (2), the reference to documents forwarded under rule 67(1)(h) of Schedule 5 to the 2007 Order were to documents forwarded under rule 50(1)(a) of the referendum rules as so applied.”
“Provision of registers etc to counting officerRegistersRegulation 98(8) of the Representation of the People (England and Wales) Regulations 2001 has effect as if a reference to a returning officer included a reference to the counting officer.
Absent voters listsAs soon as practicable after 5 pm on the 6th day before the date of the poll, the registration officer must provide the counting officer with the following lists, and any subsequent revised lists or revisions to the lists—
(a) the list of proxies for the Assembly elections;(b) the postal voters list for the Assembly elections;(c) the proxy postal voters list for the Assembly elections.Personal identifier informationWhere proceedings on the issue and receipt of postal ballot papers are taken together by virtue of paragraph 2 of Schedule 3 to the Welsh Assembly Order, Article 13(5) of that Order has effect as if a reference to a constituency returning officer were a reference to the counting officer.”
“Schedule 8 to the 2010 Order has effect—
(a) as if the reference in paragraph 1 to documents retained under rule 71 of the Scottish Parliamentary Election Rules were to documents retained under rule 50(1)(b) of the referendum rules as applied by paragraph 52 above;(b) as if the reference to that Schedule in paragraph 4(2) were to any enactment;(c) as if references to the CRO included references to the counting officer.”
“Provision of registers etc to counting officerRegistersParagraph 1 of Schedule 1 to the 2010 Order has effect as if a reference to a returning officer included a reference to the counting officer.
Absent voters listsAs soon as practicable after 5 pm on the 6th day before the date of the poll, the registration officer must provide the counting officer with the following lists, and any subsequent revised lists or revisions to the lists—
(a) the list of proxies for the Scottish parliamentary election;(b) the postal voters list for the Scottish parliamentary election;(c) the proxy postal voters list for the Scottish parliamentary election.Personal identifier informationWhere proceedings on the issue and receipt of postal ballot papers are taken together by virtue of paragraph 2 of Schedule 4 to the 2010 Order, paragraph 23(1) of Schedule 3 to the 2010 Order has effect as if a reference to a CRO were a reference to the counting officer.”
“( ) Where appropriate—
(a) a reference in any enactment to a list mentioned in sub-paragraphs (i) to (iii) of sub-paragraph (2)(a) is to be read as a reference to the combined postal voters list;(b) a reference in any enactment to a list mentioned in sub-paragraphs (i) to (iii) of sub-paragraph (2)(b) is to be read as a reference to the combined proxy postal voters list.”
“(1) Where—
(a) a combined list is prepared as mentioned in paragraph 7(2), 8(2), 16(1) or 22(1),(b) the same copy of the register of electors is used as mentioned in paragraph 21(1),(c) a single list is used as mentioned in paragraph 24(1), 26(1), 27(1) or 28(1), or(d) a declaration made by the companion of a voter with disabilities (within the meaning of paragraph 25) relates to the referendum or Assembly election as well as a local election,rules 50(1)(b) and 52 of the referendum rules apply to those documents (and rule 58(1) of the Local Elections Rules has effect as if any reference to those documents were omitted).(2) Where a combined list is prepared as mentioned in paragraph 7(2), 8(2) or 16(1), rule 59 of the Local Elections Rules, so far as it relates to corresponding number lists, has effect as if references to the proper officer of the council were to the Chief Electoral Officer.”
“Schedule 3 to the Local Elections (Northern Ireland) Order 2010 has effect—
(a) as if, in the definition of “the marked register or lists” in paragraph 1(1), the reference to documents retained under rule 60 of the Local Elections Rules included a reference to documents retained under rule 50(1)(b) of the referendum rules as applied by paragraph 38 above;(b) as if references to the proper officer included references to the Chief Electoral Officer.”
“(i) the packets, made up under paragraph 11 of Part 3 of Schedule 2 to the Local Elections Order, of any combined lists produced by virtue of paragraph 7 or 23 above;(ii) the packets made up under paragraphs 12 and 17C of that Part.”
“( ) Regulation 115(1) of the 2008 Regulations has effect in relation to an Assembly election as if the reference to documents retained under rule 57(1A) of the elections rules included a reference to documents retained under this paragraph that relate to the Assembly election.
( ) Schedule 3 to the Local Elections (Northern Ireland) Order 2010 has effect—
(a) as if, in the definition of “the marked register or lists” in paragraph 1(1), the reference to documents retained under rule 60 of the Local Elections Rules included a reference to documents retained under this paragraph that relate to the local election;(b) as if references to the proper officer included references to the Chief Electoral Officer.”
Parliamentary Voting System and Constituencies Bill
Lord Wallace of Tankerness Excerpts(13 years, 9 months ago)
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Lord Soley
I referred to this matter in my earlier comments and I am encouraged to make a further comment partly by the speech made by my noble friend Lord Davies of Stamford but also by that made by the noble Lord, Lord Pannick. The problem here is paragraph 9(2) of Schedule 1. Paragraph 9(1) is very clear. It does not put the Electoral Commission in the firing line at all. If the noble and learned Lord, Lord Wallace, who I assume will answer this debate, heard anything of the previous debate he will have heard anxiety expressed in all speeches about the dangers of putting the Electoral Commission in a position where it takes the blame for not getting a balanced view of the two systems. As I have said on a number of occasions, it is very difficult to write a pamphlet describing the two systems without, in some way, being biased. My noble friend Lord Rooker has already touched on this.
There seem to be two ways of dealing with this problem. One is the way put forward by my noble friend on the Front Bench, which is to allow a political committee, the Speaker’s Committee, to be the lightning conductor. That committee would oversee the work that was done and would sign it off and if there were any flak from it, it would not go straight to the Electoral Commission. That is one way of dealing with it.
Perhaps I may suggest another way which came to me when I heard my noble friend Lord Davies speak—I noticed that the noble Lord, Lord Strathclyde, gave a fairly positive response to it—and that is the idea of the two campaigning groups being able to send out a leaflet, at public charge, so that it would be done rather like an election address. Looking back to paragraph 9, sub-paragraph (2) is problematic because that is where the Electoral Commission is required to make judgments about the wording used to describe the system. If we took out sub-paragraph (2)—I do not expect the Minister to respond to this straightaway but he might want to think about it—and simply left in sub-paragraph (1), then the Government could, in this Bill—I suspect that it would not need to go into the Bill—allow for the two campaigning groups to produce the leaflet as described by my noble friend Lord Davies with some sympathetic support from the noble Lord, Lord Strathclyde. That could be sent round, either with the Electoral Commission’s pamphlet or separately—I should have thought it would go with it—and in that way you take the responsibility of describing the two systems other than in a very basic sense which is required in paragraph 9(1), and put the requirement in paragraph 9(2) onto the two campaigning organisations.
I hope I am making myself clear. It is slightly complicated, but I am arguing that the two campaigns will know what they want to say for and against the two systems. If they produce their own leaflets and they are circulated with the pamphlet put out by the Electoral Commission, which they will do under paragraph 9(1), then it leaves the Electoral Commission in the rather tighter position of simply saying that there is a referendum, informing people about it, informing them how to vote, but not getting into the nitty-gritty of the pros and cons or the description of how the two systems might work. That would be left to the two campaigning organisations. That way you would take the Electoral Commission out of the firing line. The alternative way is to do as my noble friend has suggested from the Front Bench and leave the Speaker’s Committee to oversee the leaflet. It seems to me that either of those systems would act as a lightning conductor for the Electoral Commission and not put it in the firing line for what will almost certainly be seen as in some way a biased leaflet. I hope I have made myself clear. Perhaps the Minister would like to think about that.
Lord Wallace of Tankerness
I thank the noble Lord, Lord Bach, for moving the amendment. This important amendment follows on from the previous debate and I welcome the contribution of the noble Lord, Lord Soley. As the noble Lord, Lord Bach, said in introducing his amendment, it is appreciated that the Electoral Commission should take the lead role in providing useful factual information. We believe it plays an important role in providing information to the public and there is a governance framework for the Electoral Commission, under the Political Parties, Elections and Referendums Act, which we believe has operated effectively for 10 years. It is also important to recall in the context of this amendment that latterly the Electoral Commission has had the benefit of advice and involvement of representatives from the political parties: the noble Lord, Lord Kennedy of Southwark, for the Labour Party, the noble Baroness, Lady Browning, for the Conservative Party and Mr David Howarth, the former Member of Parliament for Cambridge who represents the Liberal Democrats.
The Speaker’s Committee is an important part of that framework. It produces an annual report to Parliament on the commission's performance, but the nature of the role of the Speaker's Committee is different from that proposed in the amendment. The Speaker's Committee is currently not given any say in how the commission should exercise its powers. It is there to report on the performance of the commission rather than to have a say in the exercise of its powers.
The purpose of paragraph 9(2) of Schedule 1 is to provide legal clarity so that the Electoral Commission can issue information about both the first-past-the-post and the alternative vote systems which it identifies as being necessary to help public understanding of the referendum question. I hope that that goes some way to answering the point of the noble Lord, Lord Soley, which was whether we could delete paragraph 9(2) and leave it to the respective campaigns. Although the respective campaigns will have facility under the free post to put out their argument—no doubt a positive argument for why they wish to retain first past the post or to move to the alternative vote and an argument against the other system—that is clearly not a role that would be appropriate for the Electoral Commission.
Paragraph 9(2) provides a clear legal basis for the Electoral Commission, having identified a need for factual information, to provide it. In his response to the previous debate, the noble Lord, Lord Rooker, said that it could be accused of bias because first past the post was described before the alternative vote. In fairness, if one looks at the electoral question, the question for the referendum, which is part of the Bill, first past the post is mentioned there before the alternative vote, so it is probably not unreasonable that the Electoral Commission should reflect in its information the question which Parliament is debating and which appears in the Bill, published on advice from the Electoral Commission.
Lord Anderson of Swansea
If a leaflet is to be produced by campaigning organisations, the noble and learned Lord will understand that, normally, when making an argument, you put the argument you want to make second. It is assumed that in a “on the one hand, on the other hand” argument, you put the argument that you favour second. Cannot that be got around in a leaflet by having one side of one page for and the other against?
Lord Wallace of Tankerness
The answer to that, as the noble Lord, Lord Rooker, pointed out, is that it takes a bit longer and more pages to describe the alternative vote than it does to describe the first-past-the-post system. Although that is an innovative and ingenious way to try to overcome the problem, I think that a practical issue is associated with it.
As my noble friend the Leader of the House said, the Electoral Commission has already published the proposed content of its information leaflets on its website. It is keen to have comments on the draft. If noble Lords wish to make representations about that information, they can of course send their comments to the Electoral Commission before the leaflets are published.
Lord Foulkes of Cumnock
Can the Minister help me on one issue? He knows as well as I do that before elections, party election broadcasts replace party political broadcasts. Will there be referendum broadcasts for the yes and no campaigns? Will that be part of the arrangements for the referendum?
Lord Wallace of Tankerness
Off the top of my head—I think I know the answer but I cannot be certain—I think that the answer is yes. I know that parties cannot use their election broadcasts for the referendum campaign. I think that that was decided in a case prior to the Scottish referendum in 1979. I think that there will be broadcasts, but perhaps I can confirm that in the course of my remarks.
I am mindful that all public bodies need to be held properly accountable for what they do, but we need to strike a sensible balance. It seems to me that there are dangers in introducing a role for a parliamentary committee in approving the operational work of the commission, as is envisaged under the amendment, rather than monitoring and commenting on its performance, as is the case established under the PPERA. It must also be remembered that the Speaker's Committee, however august, comprises politicians. Irrespective of how carefully we might think that the committee would use its power—I have no reason to think that it would do other than that—perception can be important in these matters. There might be concern if the Electoral Commission—which, I think, everyone agrees, has a reputation for its impartiality—had in this crucial area to have its work vetted or approved by a body comprising politicians.
Furthermore, building in an extra procedural hurdle before the commission could issue the clarifying information to help voters could be difficult if confusion about the systems was allowed to take root and hares were allowed to run which could not be corrected promptly because of the need to refer. We must also bear in mind that the commission already issues a lot of useful guidance to voters, parties, candidates and electoral administrators about the working of our system. That has worked well. I am not aware of any significant concerns about it.
I confirm that my instinctive answer was right: there will be referendum broadcasts for the designated campaigns.
It is the commission's responsibility to decide how, and whether, to provide that information. As I said, I think it is widely accepted across the Committee that the commission is well established as a neutral, independent body. I am confident that it does not need the extra provision which the amendment would impose. There is a further opportunity for noble Lords to comment on the draft. I therefore ask the noble Lord to withdraw the amendment.
Lord Bach
I thank the noble and learned Lord for his full answer and my noble friend Lord Soley for his contribution in support of my amendment. I am slightly disappointed by the noble and learned Lord’s response. As I said in opening, this is a modest proposal—and a practical one, I think. Without doubt, the Electoral Commission will come under a lot of pressure, to put it mildly, in the lead-up to and during the campaign for the referendum. No doubt, much of that criticism will be ill judged and unfair, but the Electoral Commission will have to face it.
This modest amendment is an attempt to give some cover, some protection to the Electoral Commission. The Speaker's Committee already exists. For the life of me, I cannot understand what are the dangers of extending its role to this issue. I understand that the Government do not want to adopt the amendment. I should like them to go away to think about it again because, as a practical measure to try to stop the difficulties that will undoubtedly arise in future, it seems to us to be sensible.
Of course I will withdraw the amendment today. We want to consider in more detail what the noble and learned Lord said, but I tell the Committee that we may well return to this issue at Report. I beg leave to withdraw the amendment.
Lord Bach
My Lords, in our view these are two excellent amendments, although it is rather surprising that they have been put together in the same group. What links them is their excellence, and I hope that the Minister will be encouraging to both noble Lords who tabled them. I do not fear for the health of the noble Lord, Lord Phillips, on his way home. We all know him as a brave and independent-minded Peer who has already shown, in the course of the eight or nine months of the coalition’s existence—it seems a long time already—that he can act independently. Looking at him from where I stand now, he seems to be the same man he was before he voted a few months ago against the coalition on an important amendment on a different issue, so good luck to him in his amendment. Of course, if he had been concerned, he need not be any longer because he has the protection and support of the noble and learned Lord, Lord Mackay of Clashfern, and there cannot be any better protection and support than that around the House.
The noble Lord, Lord Phillips, pointed out the ambiguity and ambivalence of paragraph 10 and the need for it to be simplified. For those on the Front Bench on this side, that is clear, and I think it is the only point I need to make about his amendment. We hope that his noble and learned friend Lord Wallace of Tankerness will take note.
My noble friend Lord Lipsey’s amendment also seems to hit the mark for us. The noble and learned Lord, Lord Mackay of Clashfern, was right to say that what happened at the end of the last general election night—thankfully in a comparatively small number of venues, although even one was one too many—was absolutely disgraceful. Indeed, if it had happened in any other country, whether it was a sophisticated democracy or a new democracy, I venture to think that it would have been reported in the British media as being proof that that country had not really grown up democratically and lacked certain vital factors in elections. We must make sure that it does not happen again, and indeed I think that that is what my noble friend is suggesting in his amendment.
The noble Lord, Lord Rennard, was quite right to say that this would only affect the referendum, but it needs to affect all elections. However, the noble Lord, Lord Rennard, is perhaps best placed of anybody in the House to use his influence to make sure that government views can be changed so that this can become general practice rather than just for the referendum.
I have nothing else to say from the Front Bench except that we hope very much that the Minister will be sympathetic to these two amendments, both of which will add to the virtue of the Bill.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, in addressing the amendment tabled by my noble friend Lord Phillips, I can assure him that he need not be concerned about proposing it.
Amendment 110ZA would impose a duty on the chief counting officer to facilitate co-operation between the officer, the Electoral Commission, the regional counting officers, counting officers and registration officers. In common with other noble Lords who have spoken in the debate, the Government agree with the intention of the amendment, which is to ensure that there is a strong relationship and good communication among those involved in running the referendum. However, we do not believe the amendment is necessary because there is nothing in the Bill which would inhibit this kind of activity from taking place.
Paragraph 10(1) of Schedule 1 states:
“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation in the referendum”.
That, of course, includes precisely the kind of co-operation suggested in the amendment. Moreover, I can assure my noble friend and the Committee that this kind of co-operation is already happening in practice. The chief counting officer has established a working group, which includes regional counting officers, to co-ordinate activity ahead of the planned polls; and the commission’s plans for public awareness have been shared with this group, as well as with counting officers and electoral registration officers. We are assured that material will be developed by the Electoral Commission for use by electoral administrators to support their public awareness work and to ensure appropriate co-ordination with its own activities.
On a slightly more technical point, the amendment does not sit well with the current wording and spirit of paragraph 10 of Schedule 1, where the onus is on the chief counting officer being responsible for deciding what steps she thinks are appropriate to encourage participation. It should be noted that when undertaking this responsibility the chief counting officer can also use her power of direction under paragraph 5(5) of the schedule to require regional counting officers and counting officers to take a particular course of action to encourage participation. In contrast, the amendment would mandate the chief counting officer to undertake specific steps, which is not the intention of this provision.
In addition, one effect of requiring co-operation among certain named bodies is that such a requirement could raise a question about whether it was also permissible for the chief counting officer to consult other bodies that are not mentioned there. That problem does not arise in the original drafting.
I understand the sentiments and the intention underlying my noble friend’s amendment.
Lord Campbell-Savours
Will the Minister respond to the question of my noble friend Lord Anderson about the conflict between the requirement on the chief counting officer to encourage participation as he thinks fit and the fact that the Minister may not necessarily reimburse the local authority? If a registration officer believed that it was appropriate to encourage participation by, let us say, running a rapid registration campaign prior to the referendum and got on with it, and then it was decided that because the money was not available he could not proceed, would not that have legal implications for the officer’s failure to act?
Lord Wallace of Tankerness
My Lords, I think the noble Lord is asking whether, if a person is frustrated in his activities—I take a technical approach to this—the post hoc situation would be reimbursement. I take the point and do not wish to diminish it, but perhaps I could have some time to reflect on what he is saying. It is agreed on all sides of the Committee that there should be encouragement, which we do not wish to have cut off.
Lord Campbell-Savours
A local authority registration officer might write a report to the democratic services committee or a department in the local authority saying, “I wish to proceed on this basis because I believe it is an appropriate way for me to encourage participation”, and the local authority might say, “We are sorry but the money is not available and the Government are not going to reimburse us in the event the expenditure takes place”. Surely that must have legal implications for the position of the officer concerned.
Lord Wallace of Tankerness
I do not think that is how it would work. Reasonable expenditure will be reimbursed by the Government. If the expenditure was unreasonable and extravagant and went beyond anything that could be considered reasonable, there should not be an obligation on the Government to reimburse. I can reassure the noble Lord that reasonable expenditure for the purposes set out in paragraph 10(1) and 10(2) would be reimbursed. The noble Lord has put forward a serious hypothetical situation, but anyone would accept that running a registration campaign was a reasonable thing to do. If someone went about it in an extravagant way—which I cannot begin to think of at the moment—that would be deemed unreasonable by most sensible people and it would not be reasonable that taxpayers’ money should reimburse it. However, with a straightforward, reasonable campaign, the Government would reimburse.
On the points made by the noble Lord, Lord Maxton, the Scottish parliamentary elections will be counted first, ahead of the referendum. The selection of the First Minister does not normally follow the election anyway. I recall that in 2003 we did not get down to negotiations about establishing a coalition until the Monday after the election. Nevertheless, the point remains that the Scottish election count will take precedence over the referendum count.
There is a link between this amendment and the amendment of the noble Lord, Lord Lipsey, which relates to the role of the chief counting officer and the powers available to her. Sentiments have been expressed in the debate, as on other occasions, that democratic people were profoundly perturbed by the scenes they saw on the night of the last general election when people were not allowed to exercise their democratic rights. Paragraph 10(1) of the schedule states:
“The Chief Counting Officer must take whatever steps the officer considers appropriate to encourage participation in the referendum”.
The amendment of the noble Lord, Lord Lipsey, would provide that:
“These steps shall include measures to ensure that all those wishing to vote and arriving at the polling station within the appointed hours are able to do so”.
Clearly, the amendment is intended to address the scenes and situations we experienced in May last year.
I can assure the Committee that we take very seriously the problems that arose at certain polling stations. The Government have been considering the Electoral Commission’s report on the issue and, in particular, the recommendation that the law be changed to allow people who have not been issued with a ballot paper but are in the queues at 10 pm to vote. We are not convinced or satisfied that the amendment would enable the chief counting officer to direct that ballot papers are issued after 10 pm—if, indeed, that is the intention of the amendment. As the noble Lord indicated in his speech when he spoke to the amendment, the Electoral Commission report noted that that was not possible because it would not comply with the law. Clearly, the chief counting officer cannot issue a direction that contravenes the existing law. As the noble and learned Lord, Lord Mackay of Clashfern, indicated, that is possibly not something that could be done in the context of this legislation for a referendum alone.
I will try to deal with the other point in a bit more detail. It is important to note that in most cases where the problems occurred in May last year, the Electoral Commission has found that the common factor was inadequate planning processes and contingency arrangements—or, more to the point, that such arrangements were not in place.
The noble Lord, Lord Lipsey, quoted my right honourable friend the Deputy Prime Minister. He quoted him accurately, but perhaps I should just quote a little more of what he said. At Question Time in the other place on 10 November, the Deputy Prime Minister said:
“I happen to think that, in this instance, simply passing a law will not deal with the problem, which was a lack of resources and poor organisation by the returning officer, who acknowledged as much”
—he was specifically talking about Sheffield, where his own constituency is—
“… That is what we need to address; we should not always simply reach for the statute book”.—[Official Report, Commons, 10/11/10; col. 285.]
Officials have met the Electoral Commission, and indeed electoral administrators, to discuss the issue of managing queues at polling stations. It is clear that there are divergent views on the effectiveness of any legislative change, and a significant number of administrators are not in favour of it. Again, that is a reflection of the fact that the problems in that particular case in May last year were because of planning failures and the lack of effective contingency planning.
Given the divergence of views that exist on the specific recommendation of the Electoral Commission and given that there is the general consensus that the problems largely arose from poor planning, we believe there is a need for significant additional discussion before any change to legislation should be proposed, if indeed that is eventually deemed appropriate. There needs to be buy-in from all those who would be involved in administering elections.
Under the Bill, we consider that the chief counting officer already has the necessary powers to provide appropriate guidance, training and support to the regional counting officers, as well as to counting officers themselves, to help address the issues that arose in May 2010. I am aware that some of the contingency arrangements have already changed the ratio of polling clerks to the number of voters at each polling place. We think there is certainly a need for more discussion as to all the potential consequences of any legislative amendment before a change to the principles underlying the existing electoral rules is considered. In these circumstances there is some benefit to having the certainty of the present rules, admittedly with the back-up role that the chief counting officer has the authority to play in giving the necessary guidance, training and support.
Lord Lipsey
Perhaps two things are getting confused here. My amendment would not deal with the strict legislative problem that the Electoral Commission originally identified. That is still under discussion and I agree this is not the appropriate time to put that right. However, my amendment would convey to returning officers the extreme importance that Parliament attaches to tackling these problems. Yes, it would be a declaratory piece of legislation, but that is not without force in this world. The noble and learned Lord might like to reflect on the point that, if he rejects this proposal, it will seem as if the Government are not really taking on board the depth and importance of the problems that arose and the reactions of electors to them. I do not think that is good for the Government and I do not think it is good for government, as a matter of fact.
Lord Wallace of Tankerness
I cannot accept the second part of what the noble Lord has said, because the Government accept that what happened in May last year was serious. There is no doubt about that. Anyone reading this debate would realise that the view on all sides of the Committee is that the situation was serious. I hope to reassure the noble Lord—who accepts that his amendment would not change the legislative basis for that—that there is a distinction to be made, given that it was accepted that in the cases last year the common factor was one of poor planning. In this case, there will be a chief counting officer, who will have a responsibility and already be aware—not least because of the dual role with the Electoral Commission—about the importance of this issue. I am sure the chief counting officer will be well aware of the sentiments expressed and the important and serious points made in this debate. If the noble Lord’s aim was to get a message across, his amendment has provided a very helpful forum and opportunity to get that message across. She has the powers, we believe, to provide the appropriate guidance, the appropriate training and the appropriate support so that these issues will be addressed and the kind of situation that we saw in May 2010 will not arise again.
Against that background, I ask the noble Lords not to press their amendments.
Lord Phillips of Sudbury
My Lords, I really did not want to make heavy weather of this amendment, but I have to say that my noble friend the Minister’s response gave a series of legal interpretations with which I have to disagree. It is unfortunate that I have to disagree, but I do, even though I know that he is advised in these matters and one normally accepts such advice to be beyond question.
The first argument advanced by the Minister was that paragraph 10(1) says:
“The Chief Counting Officer must take whatever steps the officer thinks appropriate to encourage participation”.
He said that such a provision allows the chief counting officer to direct the other officers—regional counting officers and so on—as to what to do and how to do it. I think that is simply wrong. There is no implication of a power of direction in that sub-paragraph. His second argument—
Lord Wallace of Tankerness
I think that I noted that, when undertaking the responsibility, the chief counting officer can use her power of direction under paragraph 5(5) of Schedule 1 to require action. I think that I emphasised the importance of co-operation—which is both permissible and happening in practice—but I referred to paragraph 5(5) in relation to powers of direction.
Lord Phillips of Sudbury
I was coming on to paragraph 5(5), but I am afraid that my first point stands. If the Minister looks back at Hansard, he will see that I am right.
Paragraph 5(5) of Schedule 1 explicitly gives the chief counting officer powers to direct counting officers in the discharge of their functions. I thought long and hard about this and consulted—if he will not mind my saying so—with the noble and learned Lord, Lord Mackay of Clashfern, who knows a thing or two about interpretation. We agreed that the reference there to the power to direct is with regard to the conduct of a referendum. If the Minister looks back on paragraph 5, he will see that it is about the conduct of the poll, the printing of ballot papers, the issue and receipt of postal ballot papers, verification and counting of votes cast—that is, solely and exclusively a power of direction on technical and practical matters.
Lastly, the Minister said that he thought that the situation would be endangered by my amendment because he said that, if there was a right of “knocking heads together” among these five categories of officer, it might involve consultation with outside bodies. However, there is no mandate whatever for that in my amendment. If the Minister says that I have got it wrong—
Lord Wallace of Tankerness
I apologise if I did not express the matter clearly. What I said was that one effect of requiring co-operation among certain named bodies is that it might raise a question about whether it is also permissible to consult other bodies that are not mentioned there. In other words, if you are mandated to consult A, B, C and D, it may raise a question if you wish actually to consult F.
Lord Phillips of Sudbury
There is no reference in my amendment to consultation. This is a power of facilitation and of co-operation among the five sets of officers mentioned. There is no question of consultation, implied or otherwise. This is solely and exclusively among these five sets of people.
I am not a happy mover, I might say, and I would be grateful before I withdraw the amendment if the Minister would agree that this needs further consultation between us. If indeed his arguments prove to be fallacious—he started by sympathising with the sentiment of my amendment—at least there will be the consideration that a further amendment could be brought back at the next stage.
Lord Wallace of Tankerness
I am more than happy to do that. Just looking at it briefly, I think that there is a difference of opinion—not as to intention, but as to our interpretation—and I am more than happy to try to resolve that with my noble friend.
Lord Phillips of Sudbury
On that basis, I am happy to withdraw the amendment.
“( ) The Chief Counting Officer is entitled to recover expenses incurred by that officer for or in connection with the referendum if—
(a) the expenses are of a kind that would otherwise have been incurred by counting officers or Regional Counting Officers, and(b) the Chief Counting Officer considered that it would be more economical for the expenses to be incurred by that officer instead.”
Lord Wallace of Tankerness
My Lords, this group contains Amendments 110B, 110C, 110C, 110D and 110E. The amendment would give the chief counting officer, who is chair of the Electoral Commission, the power to incur expenses for the effective conduct of the referendum and in certain limited circumstances, make payments in respect of those expenses out of moneys to be provided from the Consolidated Fund. I can assure the Committee that the chief counting officer will be able to spend conduct moneys only where doing so provides a clear financial benefit. The Royal Mail, for example, has indicated that it may be able to provide a cheaper service for the sweeps of mail centres—a service that ensures that any votes still in the mail centres towards the end of polling day are identified, extracted and provided to returning and counting officers before the close of poll that evening—if it can contract for this on a national basis with one individual rather than having to negotiate and contract with more than 350 officers who will be conducting the poll at local level.
The amendment would help to make the administration of the referendum easier for the chief counting officer and for counting officers, and provides an opportunity for savings to be made on the conduct of the poll. I beg to move.
Lord Falconer of Thoroton
This seems very sensible, but I am slightly bewildered. How on earth does the chief counting officer not have that power anyway?
Lord Wallace of Tankerness
My Lords, when this issue arose, the view was taken that it was uncertain that that power existed and hence there was the need to put it beyond peradventure that it did. The issue was flagged up by the example of the Royal Mail that I gave, and there was concern that that power did not exist. As the noble and learned Lord says, it is a sensible power and one which I hope will commend itself to the Committee.
Lord Falconer of Thoroton
This is an important point which my noble friend Lord Foulkes has put so accurately. The position should not be different in England and Scotland. In England, interest is sufficient, which means a general interest—almost in a layman’s sense—in the subject matter, whereas in Scotland, interest and title are needed, title meaning, as my noble friend Lord Foulkes said, some legal relationship which gives them a right to sue. The amendment would make Scotland and England the same in relation to whether you are entitled to challenge an electoral process which is identical on both sides of the border. That seems sensible. I would be interested to hear what the Minister has to say.
Lord Wallace of Tankerness
I am grateful to the noble Lord, Lord Foulkes, for bringing this amendment forward. He and I well know that the matter has been raised by the Law Society of Scotland. Indeed, I tabled a similar amendment in the previous Parliament.
The amendment would amend the provisions so that a challenge brought through judicial review in Scotland can be launched if its purposes are on the same basis as proceedings elsewhere. In Scotland, there are two separate tests for bringing judicial review, in that a petitioner has to demonstrate both title and interest, whereas in England, Wales and Northern Ireland there is a single test of interest alone.
The noble Lord, Lord Foulkes, also mentioned the recommendation made by Lord Gill, the Lord Justice Clerk, in his Report of the Scottish Civil Courts Review. However, I am concerned that because of the way in which this amendment is drafted, it will not have the desired effect. By stating that,
“the petitioner’s interest alone shall be sufficient to enable a petition to be lodged”,
it has almost gone too far and would effectively disapply the need to establish all other matters when considering a case for judicial review—including, indeed, whether there is sufficient legal grounds for a challenge.
The other, perhaps more practical, point is that it is difficult to see what the practical effect would be, as we think it is likely that the Scottish courts would entertain a judicial review from any elector entitled to vote at the referendum or at parliamentary elections and any permitted participant. By their very nature, they have an interest—they were taking part in the election.
We should be mindful of the fact that this issue goes wider than the referendum alone. It raises important issues about the nature of judicial review in Scotland, not least those flowing from Lord Gill’s report, and the circumstances in which they should be permitted to raise petitions for judicial review. That is an important issue. It is one that undoubtedly is receiving detailed consideration, not least by the Scottish Government and the Scottish Parliament. It would not be helpful if this Bill somehow tried to pre-empt it on an ad hoc basis, particularly, as I have indicated, we believe that an elector in Scotland would be able to raise a petition.
Lord Foulkes of Cumnock
On the key point, is the Minister saying that because of the recommendation of Lord Gill, he believes that a petitioner in Scotland could raise it on interest alone, without any title, so it would in effect be the same as in England? I am not quite clear.
Lord Wallace of Tankerness
My Lords, if the noble Lord will bear with me, the Lord Justice Clerk, Lord Gill, recommends in his report that the separate test of title and interest be replaced by a single test, that test being where the petitioner has demonstrated a sufficient interest in the subject matter of the proceedings. That is not specific to this referendum. We have a quite important change in the law of judicial review in Scotland anyway and it goes along with numerous other recommendations on civil procedure in the Scottish courts. These matters are, I am aware, under consideration, but it would not be appropriate in this Bill to do it on a one-off basis, particularly in circumstances where we believe that being a participant in the referendum, one would qualify to challenge, if indeed that situation should ever arise.
Lord Falconer of Thoroton
That is very helpful. I read the noble and learned Lord, Lord Wallace of Tankerness, as saying that the current requirement in Scotland for judicial review is title and interest. He is expressing the view from the Dispatch Box that if you were an elector in the relevant election that you wished to challenge—the referendum—that would give you title and interest for the purpose of Scottish judicial review. That being so, the difficulties and dangers of trying to do an ad hoc change here do not arise and we should be reassured that any elector would be able to bring a judicial review challenge in Scotland, just as they would in England.
Lord Wallace of Tankerness
As I am sure the noble and learned Lord knows, these will ultimately be matters for the court but that is certainly our understanding, or my belief.
Lord Neill of Bladen
Before the noble and learned Lord finishes on that point, I feel some concern that he is not prepared to put on to the statute book the view which he has just expressed: that title and interest would necessarily be found by a court to exist here. The worry would be that there could, theoretically, be people advising in Scotland who will be unaware of the discussion now taking place and of the deliberate abstention from following up Lord Gill’s advice on a one-off basis on this very point, where there is potentially a conflict between the practice in Scotland and that in England. Would it not be possible to think of some way of putting on to the statute book information so that anyone advising would see that title and interest were thought to be, by the Minister or by the Government, both present in this case?
Lord Wallace of Tankerness
That is an important point, one which I wish to reflect on. I think it is satisfactory as it stands, but I understand what the noble Lord is saying: that there may be circumstances where, in the absence of any reference, someone may not appreciate that fact. Without making any commitment, I will look at that and see whether there is a way. As I have indicated, as the amendment stands there is a problem, too. In fact on interest alone, regardless of anything else, it would qualify and I am sure that is not what the noble Lord intended.
I think I am right in saying that the debate on whether the schedule be agreed is also a part of this, but perhaps I can reply later to that debate as part of this group.
Lord Campbell-Savours
I want to go back to my earlier intervention. As I understood the noble and learned Lord’s reply, under paragraph 10(5), the Minister may reimburse reasonable expenses incurred by a registration officer for a local authority. Now, if the Government are in a position to reimburse such reasonable expenditure prior to the referendum, should that information not be communicated to local authorities? It might well be that some local authorities want to run a blitz campaign prior to the referendum, to increase registration. The Government appear, in the answer that the noble and learned Lord gave me, to be to some extent offering them the resources as long as the expenditure is reasonable. Perhaps the Minister might write to me on this point, because I am sure that local authorities will have picked up on his responses to my earlier interventions.
Lord Wallace of Tankerness
I am certainly more than happy to write to the noble Lord on that point. I do not think that I need to elaborate on what I said to him before. I want to indicate briefly that Schedule 1 makes provision about the key aspects of the conduct of the referendum and the regulation of the referendum campaign. The approach of the Government in doing this has really been to replicate the provisions that are made for parliamentary elections, where they are appropriate. However, there are some areas where we need to make specific provision to tailor-make the provisions for this referendum. On the campaign spending and funding framework already in place for referendums, what there is under the PPERA will generally apply. I commend this schedule to the Committee inasmuch as it tries to replicate, wherever appropriate, the rules which are now well tried and tested.
Lord Foulkes of Cumnock
I am grateful to the Minister and, particularly, to my noble and learned friend Lord Falconer for their exchange, which helped to clarify the situation. I was surprised because this amendment was in fact drafted by our mutual friend Michael Clancy, who has done a lot of these before and understands parliamentary drafting very well. However, I was particularly grateful for the intervention from the noble Lord, Lord Neill, on the Cross Benches, and for the Minister’s response: that he will look at this again to see whether there is a way to achieve it so that Scots and English people will have the same rights guaranteed on both sides of the border, without any court having to make a decision and without creating a precedent which might cause any difficulties for other aspects of judicial review. On the basis that the Minister has been very helpful in giving me that assurance, I beg leave to withdraw the amendment.
Lord Falconer of Thoroton
I should perhaps have asked this before but, on page 25, Schedule 1 requires the Electoral Commission to,
“prepare accounts in respect of their expenditure in relation to the referendum”,
only if,
“directed to do so by the Treasury”.
Is the Treasury going to give such a direction? It seems extraordinary that we would not know what the expenditure of the Electoral Commission was on the referendum unless a direction had been given by the Treasury. It might be that this is, as it were, language which is always in, and that it will of course give that direction, but I thought that it was a very odd way of doing it. It would mean that we could not find out how much had been spent on the referendum, but you can bet your bottom dollar that there will be a lot of questions asked about how much the referendum cost at some stage.
Lord Wallace of Tankerness
My Lords, I probably share the noble and learned Lord’s view. It is almost counterintuitive to think that the Treasury might in some way not wish that—well, it may be, I do not know. Freedom of information requests might well flow fast and furiously if that did not happen. Perhaps if I talk long enough, I may get a definitive answer on whether this is indeed something that generally appears in such legislation or whether there is some reason unbeknown to us.
The answer is that it is part of the Electoral Commission’s accounting framework that it normally accounts to the Speaker’s office. I suspect that the paragraph makes provision that the accounts in relation to the referendum could be extracted. If that is incorrect, I will ensure that a proper clarification is intimated to the noble and learned Lord and duly circulated.
Lord Falconer of Thoroton
As the noble Lord the Leader of the House said, I am getting a sapling of an idea of what the reason is and I think I understand. This is not a major point, but perhaps the noble and learned Lord could write. He should not bother to write if the sapling of the idea is, as I think was said, that we have to do it slightly differently because of this and that there will be accounts. If there will not be accounts available, perhaps he should write; otherwise, we can forget it.
Lord Falconer of Thoroton
My noble friend Lord Rooker has Amendment 113 in this group, but he has had to leave. It is effectively the same as the amendment tabled by my noble friend Lord Foulkes in that it proposes that the polls should shut at 11 pm. The point has already been made but it seems a good thing that the time should be extended for people to vote. There may be reasons why that is a bad thing. I will wait to hear what the Minister says.
The next group of amendments, which would have been moved by my noble friend Lord Rooker, but which I will move because he cannot be here, seek to deal with the overcrowded polling stations issue, which we have already discussed and in which there was an impressive intervention by the noble and learned Lord, Lord Mackay of Clashfern. There was quite broad support for the amendment tabled by the noble Lord, Lord Phillips. The amendment that proposes that the polls should shut at 11 pm, as opposed to 10 pm, might, subject to the information that the Minister has, be of assistance in relation to that. If the number of people who would vote between 10 pm and 11 pm was quite low—even though there might be a late surge—it would reduce the likelihood of what happened in the previous general election happening again. It might, for that additional reason, be worth contemplating.
Lord Wallace of Tankerness
I thank the noble Lord, Lord Foulkes, for raising these issues with his amendments, which would provide electors with earlier notice of the referendum and give voters extra hours to cast their ballots. As noble Lords are aware, it is the Government’s intention that the referendum should be held on 5 May. Therefore, any alterations to the timetable and the hours of polling proposed for the referendum would inevitably create inconsistencies between the rules governing the referendum on the one hand and those governing the elections scheduled to take place on 5 May, with which the referendum will be combined, on the other. Fundamentally, this would be confusing and unhelpful for voters. Noble Lords may already have noted that that view is supported by the Electoral Commission. The amendment would also be inconsistent with the combination of rules in Schedules 5 to 8 to the Bill.
I turn to the first part of the amendment, which deals with the referendum timetable and the issuing of the notice of poll. With the exception of the Scottish parliamentary election, the 25-day timetable will be used for all other polls that are scheduled to take place on 5 May 2011. During the Bill’s passage through Parliament, we specifically amended the deadline for issuing the notice of poll from 16 to 15 days before the date of the poll. The noble Lord’s amendment would take that up to 20 days before the date of the poll. The purpose of the amendment was to ensure that a consistent deadline for the publication of the notice of poll applied for most of the polls that will be combined across the United Kingdom.
Only in Scotland will the deadlines for publication of the notice of the two combined polls be different from each other, due to a slightly different timetable that applies to Scottish parliamentary elections. However, moving the deadline to 20 days before the poll would lead to inconsistency right across the United Kingdom and potential confusion for voters and electoral administrators. The Electoral Commission will take steps, however, to ensure that electors are aware of the referendum before the statutory timetable commences, and electors will not have to wait until notice of poll is issued, or until they receive their official poll card, to change their voting arrangements should they wish to do so.
I turn now to the amendment on polling hours. It is an important amendment and important arguments have been adduced in its favour. It would extend the polling hours for the referendum, which could be difficult for polling staff and polling agents. It may even be difficult for people who rely on public transport to get to a polling station for 6 am for the opening of the poll. At the end of the day, extending the close of poll by one hour could have implications for the staff at the time of verification, not least in those cases where two polls will be combined on one day. However, perhaps more importantly, it could be confusing to voters to have polls taking place on the same day but closing at different times. Under this proposal, voters would turn up before 7 am or after 10 pm to vote in the referendum, but would perhaps be told that they were unable to vote in the Scottish parliamentary election, the Welsh National Assembly election or some of the local government elections in England. I suspect that would increase, rather than reduce, the possibility of voters missing their opportunity to vote, which could cause some dissension.
The important point, which I think the noble Lord, Lord Foulkes, mentioned, is that the opportunities for postal voting and voting by proxy are now such that if the current polling hours are unsuitable for electors, they still have the opportunity to vote. I readily accept that in many cases work patterns and family patterns may make it difficult, but it is now possible to vote either by proxy or by post. As we all know from taking a keen interest in elections, the number of postal votes has increased considerably; obviously a good number of people take that opportunity. It may be that the message about opportunities for postal and proxy voting can be reinforced in the context of information relating to the polls.
It is also important that the issue regarding the timetable for the polls goes wider than the referendum alone. It should perhaps be reviewed in the longer term for future national elections and referendums. With these words and assurances, I hope the noble Lord will withdraw his amendment.
Lord Campbell-Savours
My Lords, I want, very briefly, to remind civil servants, when they are drawing up the wording as currently set out in the Bill, of what happened with the ballot paper in the first mayoral elections in London. We had made recommendations as to what should be on the ballot paper; the civil servants basically took over the agenda and wrote the question; I objected very strongly, but of course as usual, I was overruled on the detail; and the result was that a lot of ballot papers in the first mayoral elections in London were wasted because of the framing of the question.
Wording is crucial and I think it has to be politicians who decide on that wording, because it is only we who understand how electorates respond to certain language. Therefore, I hope that a debate takes place within the department about whether the current wording in these areas of instruction is right and whether the wording that my noble friend wishes to introduce for the benefit of people voting in the referendum might be better. The Minister should take this as a very serious amendment: it might not be the final wording, but let there be a further debate, because if it does not take place, the danger is that the events of the first mayoral elections in London may well be repeated.
Lord Wallace of Tankerness
My Lords, I am grateful to the noble Lord, Lord Rooker, for tabling these amendments; he indicated to me that he had to leave and that they would be spoken to by the noble and learned Lord, Lord Falconer. They raise important issues which it is very helpful for the Committee to have the opportunity to address. Amendment 115 obliges by law that counting officers should not allocate more than 1,050 electors to any polling station within their voting areas. This is a very worthy and laudable attempt to address the problems, referred to by the noble and learned Lord in moving this amendment, which arose at some polling stations in the May 2010 election, when a number of electors were unable to cast their votes due to queues forming at certain polling stations. Although these incidents were isolated, they are certainly not taken lightly—I emphasise that again.
It is the responsibility of electoral administrators to provide for the smooth running of the voting process in elections, and that includes contingency plans to cater for events such as when there is a higher than expected turnout at one or more polling stations for which they are responsible for allocating voters and for staffing. The chief counting officer for the referendum is, of course, the chair of the Electoral Commission and she has the power to direct all other counting officers across the United Kingdom who administer the referendum. The Electoral Commission has indicated that the chief counting officer intends to issue directions to counting officers as to the maximum number of electors to be allocated to any polling station and the associated minimum number of staff to be present at each polling station. As I indicated in response to an amendment moved earlier by the noble Lord, Lord Lipsey, the Electoral Commission has already started to issue guidance to counting officers on the number of polling staff who will be required.
I am therefore concerned that the amendment would remove any discretion, both of the chief counting officer and of all other counting officers, to decide how many electors should be allocated to each polling station and the number of staff who should be present at each polling station. To give an example, it does not seem sensible to require that a village of, say, 1,200 electors should have two polling stations when there is no suggestion that previous arrangements for that village have proved inadequate. Indeed, it might even mean that fewer staff were available at each polling station to assist voters. It is that kind of flexibility which we would not like to remove from the chief counting officer.
We know that queues arose in the elections of May last year primarily because of planning failures and the lack of effective contingency planning. However, we believe that at the polls being held in May this year, better guidance, better staff training and support and better planning procedures in the run-up to the polls would be more appropriate and more effective in addressing the issues that have been raised, as opposed to placing statutory limits on the number of voters who can be allocated. I hope that the chief counting officer’s stated intention to issue directions to counting officers on this issue will reassure noble Lords and that the House will recognise that the amendment would reduce flexibility, and that that in turn could increase risks and not necessarily prove good value for money.
On the second amendment, which would oblige all counting officers to print 100 per cent of ballot papers, I must say that until last year I always thought that that was the case anyway. The purpose is that they should print the same number of ballot papers as there are voters on the electoral register in their area of responsibility. Currently, they must print only the number of ballot papers that they feel is necessary.
Lord Wallace of Tankerness
My Lords, this is a minor and technical amendment to correct a cross-reference under rule 13(6)(a) of the referendum rules. The effect of this minor amendment is that the number of ballot papers counted or votes cast may not be questioned by reason of any non-compliance with the provisions under rule 13(3) for England and rule 13(4) for Wales, Scotland and Northern Ireland relating to the provision of polling stations. Noble Lords will note that, as it stands, the reference is not to rule 13(3) and rule 13(4) but rather to paragraph 13(5)(a) and (b). The purpose of this amendment is to get the cross-reference correct. I beg to move.
Lord Falconer of Thoroton
Just for clarity, the reason why sub-paragraph (5) is not now included as an exception in sub-paragraph (6)(a) is because it is included in sub-paragraph (4). Is that right? Looking at it to start with you want it to apply to sub-paragraph (5) as well, but sub-paragraph (5) appears to go in the drafting because the deletion in the amendment goes up to the second “or” in the second line. You would not want a vote not to be counted if the polling station happened to be in the wrong district. I assume that sub-paragraph (5) is deleted because it is included in sub-paragraph (4), or am I wrong about that? I cannot see any reason why a technical failure of the position of the polling station in Wales, Scotland or Northern Ireland should vitiate the vote. I assume it is because the polling stations in sub-paragraph (5) are included in sub-paragraph (4). Officials are nodding. It might be better if the noble and learned Lord says yes.
Lord Wallace of Tankerness
The noble and learned Lord has accurately identified the issue and that is, as it were, the error that this amendment seeks to correct.
Parliamentary Voting System and Constituencies Bill
Lord Wallace of Tankerness Excerpts(13 years, 9 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Foulkes, for their contributions and questions. I was just a bit wary when the noble Lord, Lord Foulkes, mentioned me coming here for the clinching, particularly for an amendment moved by the noble Baroness, Lady D’Souza, but I understood the spirit in which he made his remark.
I shall pick up on the point made by the noble Lord, Lord Foulkes. He was absolutely right to remind the Committee that in fact there are four Boundary Commissions responsible for Scotland, Wales, Northern Ireland and England. One of the issues that we will want to address in preparing the amendment which I indicated in the earlier debate is that of consistency. The important point is consistency, but it need not necessarily be one of exactness, which raises issues of how much should be set out in the Bill and what should be left to the guidance of the Boundary Commissions themselves. That is something we want to work through with them.
The noble and learned Lord asked whether the Boundary Commissions would provide guidance on how they will carry out the review. Prima facie this is a matter for the commissions, but the practice in the past has been for them to do so. It is my understanding that the secretary to the Boundary Commission for England confirmed for the Political and Constitutional Reform Committee of the other place that they intend to do so again for this review. However, the question of draft guidance is a matter for the Boundary Commissions. I do not think that it has been produced in the past, but if the noble and learned Lord has information to the contrary, I would be interested to hear it. Moreover, I am not aware of any being ready to be published at the moment. In fairness to the Boundary Commissions, it would be difficult for them to produce draft guidance given that we are still at the stage where changes are being made. Indeed, as I indicated in my responses to the amendment moved last week by the noble Lord, Lord Lipsey, and that moved by the noble Lord, Lord Kennedy, on how long it would take to put these matters online, and indeed the matter that was debated earlier today regarding public hearings, it might be rather difficult for the Boundary Commissions to produce draft guidance ahead of the Report stage when your Lordships are still debating what the actual shape of the consultation will be.
I was asked when the initial recommendations would be published. That is entirely a matter for the commissions. I was also asked by the noble and learned Lord whether the commissions have to advertise in the same way for the initial and the revised recommendations. My information is that, yes, they would have to do that. I shall give a little more clarification on a point raised by the noble Lord, Lord Foulkes. It is certainly not the Government’s intention to issue guidance on how the commissions should interpret the legislation, but I understand that the commissions work together on issues that are of common interest and common practice. While not issuing them with guidance on how to do that, we would certainly give them every encouragement to work together. It is also my understanding that each Boundary Commission will produce a report, and certainly I do not think it is intended that there would be one UK report. What I could not be certain about is whether there would be separate reports produced at different intervals for each of the regions of England. I really do not know whether that has happened in the past. But, again, it is certainly not my understanding or anticipation that there would be one mega-UK report. There will be reports from Scotland, Wales and Northern Ireland and, I assume, England, but I do not know whether the Boundary Commission for England would wish to break up its report into separate regions. At the moment, I am not in a position to say.
Lord Falconer of Thoroton
The way it is done at the moment is that Boundary Commission reports are issued within England or Scotland covering a particular part, usually a county, because there are limits on being able to cross particular boundaries. You have to decide within a particular area which constituency will go where. We know that that is not going to be the position here, so while I understand completely that there will not be a UK-wide report, I am keen to try to ascertain the extent to which the countries of England, Scotland, Wales and Northern Ireland will, as a matter of practice, be divided up between areas of, say, the eastern region, the East Midlands and the West Midlands. That is significant in terms of how resources are dealt with by political parties in looking at the particular issue, even though it may well be that the Boundary Commissions have not resolved how to do that at the moment. I would ask, therefore, whether they will produce guidance indicating how they are going to do it or does one just have to wait until a particular report covering, for example, the north-east or the south-west of England is produced so that resources can be put to dealing with the area at that particular point? That is what I was interested in.
The noble and learned Lord took my questions as relating to inquiries, but my question was really about the timing of the guidance. I have with me a document from the Parliamentary Boundary Commission for England covering the procedure at local inquiries. Of course the commission could not possibly have that ready yet because only this afternoon did we find that there are now going to be local inquiries. Having raised the matter, is it envisaged that further guidance relating to the whole consultation process, part of which will be in writing, will be issued? However, I am much more focused on the order of batting and the timing.
Lord Wallace of Tankerness
The answer I gave was not intended to be specific to the issue of public hearings, but rather was meant to be illustrative of where there obviously will be changes from what is set out in the Bill at the moment as a result of amendments to be brought forward at the Report stage in response to the amendment from the noble Lord, Lord Lipsey, about counter-representations. That is why I wanted to make the point that we cannot really expect the Boundary Commissions to produce draft guidance when they do not know what they are actually going to be asked to deliver. Clearly, we will have to examine what the issues of public hearings and counterproposals mean in terms of timing in the coming weeks. However, as I just indicated, it has been the practice in the past that, as the secretary to the Boundary Commission for England confirmed for the Political and Constitutional Reform Committee of the other place, the commissions again intend to issue guidance. The point I sought to make was that I did not think that they had issued draft guidance in the past, and I certainly would not anticipate any draft guidance before next week or whenever we debate the Bill on Report.
I am also advised that the Boundary Commission for England published its recommendations on a county basis, which coincides with what the noble and learned Lord said. It is certainly a matter for the Boundary Commission itself to determine how it will report. It could use regions, and I understand that it would be consistent with the powers in the Bill for it to do so. But I envisage that this matter will become much clearer when the Boundary Commissions get the Act of Parliament, as we hope, and they can respond. I have no doubt whatever that we will hear what the respective Boundary Commissions propose in terms of bringing forward reports.
Lord Campbell-Savours
The target size is 76,000, with the 5 per cent leeway making a ceiling of something like 79,500 per constituency. What will happen when a ripple effect is caused by the five-yearly review of constituencies which are all on the maximum and there is no slack in the system to take up? Surely the Boundary Commission will have to report on huge areas because of the ripple effect on each constituency which has already met the 76,000 plus 5 per cent limit. Will the Government take into account this ripple effect on Boundary Commission decisions when finally they make their statement on the commission?
Lord Wallace of Tankerness
My Lords, I hear what the noble Lord says. Whether it would work out like that is a matter of conjecture. However, it underlines the fact that these matters are probably better left to the Boundary Commissions. They should determine how they issue their reports and deal with these points, rather than Ministers or the legislation being prescriptive in that sense. It should be permissive rather than prescriptive.
Lord Foulkes of Cumnock
I support what my noble friend Lord Howarth has said. Following on from what the Minister said on the briefing about the Boundary Commissions working together, as he knows only too well I am strongly in favour of devolution—as he is—and, where appropriate, different solutions north and south of the border. I am also not too keen on Governments giving directives—particularly this Government, but that is another story.
However, given that we are talking about elections in the United Kingdom, some degree of consistency and guidance is important. Earlier today I read the words of Bruce Millan, one of the greatest Secretaries of State for Scotland, who many noble Lords will recall with great affection. When he was shadow Secretary of State in a debate in the other place—this may seem a long time ago but it is still relevant today—he said:
“On Tuesday I drew attention to the fact that there were differences in approach between the English, Scottish and Welsh Boundary Commissions—for example, with regard to overall numbers. The Scottish commission uniquely among the three started with a pre-determined total and worked from that. Subsequently that total had to be adjusted. I thought that it was wrong in principle that the commission should start with a predetermined total. That approach is not compatible with what happened in England and Wales. It is worrying that there are different approaches to the interpretation of the same rules in the three countries. This is another argument for looking again at the rules.
There were differences in approach by the three commissions to rule 6—the geographical consideration rule. There were also differences in approach in practical terms as to what the commissions did about movements of population after the enumeration date. It is not clear that any commission is entitled to take into account any change in population beyond the enumeration date. The English commission believes that it is not empowered to take any movement of population into account. That has given rise to considerable dissatisfaction south of the border, because England’s enumeration date was 1976. There have been tremendous movements in population since then. The Scottish commission took a more relaxed view. Whether it was entitled to do so is a matter of considerable argument. That should be looked at”.—[Official Report, Commons, 3/3/83; col. 428.]
That points to some of the problems that can arise if there is not close co-operation between the four Boundary Commissions under what I think is the general benevolent guidance of the Government. I know that the Minister cannot give an instant answer, but I hope that he will take this away and look at it to see whether some more guidance should be given, particularly if the rigid figure of 600 is going to be adhered to. I imagine that that is going to make it very difficult for the Scottish, English, Welsh and Northern Irish Boundary Commissions to work in similar ways. They are working necessarily to different totals within different geographical areas, and some guidance from the Minister might be appropriate. I am not expecting an instant answer, but it is worth while having a look at it.
Lord Wallace of Tankerness
My Lords, perhaps I may first respond to the noble Lord, Lord Howarth of Newport. I hope he would not expect the Government to give directions to the Boundary Commissions, and I indicate that the Bill provides that the Boundary Commissions,
“shall take such steps as they see fit to inform people in the constituency—
(a) of the effect of the proposed recommendations and”—
to ensure that—
“a copy of the recommendations is open to inspection at a specified place within the constituency”—
that is unless, of course, no change is recommended for the constituency—
“(b) that representations with respect to the proposed recommendations may be made to the Commission during a specified period of 12 weeks”.
The provisions of this Bill are a bit different from those of the past. The 1986 legislation made a stipulation with regard to newspaper advertisements, and that is not in this Bill. We are leaving that to the discretion of the Boundary Commission. When I was replying to an amendment moved on Wednesday by the noble Lord, Lord Kennedy of Southwark, who was talking about online advertising, I indicated that again it was a matter for the Boundary Commissions. However, as there had been use of online advertising for the purposes of the Boundary Commissions’ work during the last general review, I have every confidence that it will be done again. I am sure there is no way in which the Boundary Commission is going to have a perfunctory regard in ensuring that the proposals are widely publicised. All parts of the House—it should be a matter not just for Government but for Parliament—should be confident that the commissions will continue to adhere to the highest standards that they have shown in the past, irrespective of seeking representations that will strengthen their recommendations. There is a high level of expectation there, and I do not think there has ever been any suggestion that the Boundary Commissions have not lived up to that.
With regard to the noble Lord, Lord Foulkes—
Lord Howarth of Newport
There will be a difference in the way that the Boundary Commission operates in future, because it is going to have to reduce the number of constituencies from 650 to 600, if that provision stays in the Bill, and it is also going to have to make the quota of 76,000 a paramount consideration. Those two factors are going to constrain it in new ways. I am sure, as the noble and learned Lord suggests, it will wish to be thorough in its consultation, but the question of what it may see fit by way of publicity and consultation, given the pressures it is going to be under, and the pressures of time as well, will depend to an extent on the standard and expectation that the Government express. That is why I hope we shall hear from the noble and learned Lord a sentiment very vigorously expressed, that he would expect no less of the Boundary Commission than the utmost thoroughness of engagement to ensure that every one of our citizens is aware of the proposals that would affect their constituencies and genuinely have the opportunity to make their representation should they wish to make them.
Lord Wallace of Tankerness
It is not just a matter of Ministers expecting it because Parliament would expect a degree of engagement. I am in little doubt that good publicity will be given to the issue, because I the political parties have a role to play, as we have acknowledged. As I indicated to the noble Lord, Lord Kennedy, when he proposed that representations should be published online within 24 hours, we would want carefully to consider that before Report. I raised a number of practical issues, but acknowledged that we are living in an age when online communication is probably the norm rather than the exception.
Lord Howarth of Newport
The noble and learned Lord says he is going to frame an amendment—effectively, to produce a new clause to replace Clause 12. Will he consider including wording that really indicates unambiguously the demanding expectation that the Government and Parliament will have for the Boundary Commissioners in this regard?
Lord Wallace of Tankerness
I am not sure that legislation is the proper place to express exhortation, but I have no doubt that the four Boundary Commissions will be looking at the debates in your Lordships’ House, as indeed in the other place. They will have heard the reasonable expectations with regard to publicity of their recommendations.
I will say to the noble Lord, Lord Foulkes, that perhaps it was a matter of controversy in some of our earlier debates, but one of the reasons why, for example, the British Academy report welcomed some of the features of the Bill with regard to the rules was the clear hierarchy we have laid down and which has not previously been the case. Therefore, I hope that the concern expressed by the former Secretary of State, Bruce Millan, will not arise in this particular case.
For completeness, I say to the noble and learned Lord, Lord Falconer, that, as I indicated earlier, it is the case, as stated in new subsection (3) proposed in Clause 12 (1):
“Where a Boundary Commission revise any proposed recommendations after publicising them”,
subsection (1), which contains the publicity part, would apply to the revised proposals, but it does not apply to any proposals that are revised for a second time. I give this for completeness.
Lord Campbell-Savours
I am sorry to come back on a question I asked earlier, but it is quite important. May I give the Minister a scenario with which many constituency organisations across the country may well be confronted? Imagine six Conservative seats in a county all on the margin of 79,800. In other words, they have taken up the 5 per cent slack above 76,000, making a total of 79,800. When the review takes place, they will all have to change. The date when that information is made public is very important because the constituencies in the county next door will want to know exactly what is happening on the boundaries for those six constituencies. Whatever decision is taken with regard to those six will affect the adjacent county where there equally might be Members of Parliament of the same party who are arguing over seats.
Is there a timetable which will be made available to deal with what would happen in those circumstances where all constituencies are on the 5 per cent-plus margin, at 79,800, and where automatically they have to start crossing boundaries to sort out the new quota?
Lord Wallace of Tankerness
My Lords, as I understood that question following on from the previous intervention from the noble Lord, Lord Campbell-Savours, we are now looking to the second review which we are looking towards publishing in October 2018. The answer does not vary, inasmuch as it will be a matter for the Boundary Commission to take into account the likelihood of any ramifications of its decisions at that point and the extent to which it publishes, either county by county or region by region. This is not a matter which, with the best will in the world, we could stipulate in legislation. We must leave that to the good sense and discretion of the Boundary Commissions.
Lord Falconer of Thoroton
I am grateful to the noble and learned Lord for answering the questions. I was trying to get at two strands. The first, as I think everyone agrees, including the secretaries of the Boundary Commissions, is that it is going to be a testing timetable to deliver the first review by 31 October 2013. I agree with the noble and learned Lord that it is for the Boundary Commissions to determine how they will do that, including when they will make their announcements of provisional proposals; how they will divide up the four countries; and the method by which they will announce how representations will be made. When legislation is going through Parliament, it is not unreasonable or unusual in this House to ask that the body concerned, without in any way infringing its discretion, sets out its broad proposals. That helps us then determine the validity or otherwise of a timetable, particularly a timetable such as this. I ask the noble and learned Lord—
Lord Wallace of Tankerness
My Lords, perhaps I may preface my remarks by taking up the point that the noble Lord, Lord Lipsey, made about the earlier amendments. I shall certainly try to ensure that he has a response on that. I think that they are very much tied up with the amendment which we debated last Wednesday and to which we have already indicated there will be a government response with an appropriate amendment on Report.
The new clause proposed in Amendment 100 requires two things from the Boundary Commission as it consults the public on any proposed changes to constituency boundaries: it must publish all the representations that it receives on provisional recommendations relating to an area, as well as publish a formal response written by assistant commissioners which is very much focused on those written representations.
It has usually been the commissioners’ practice to appoint assistant commissioners to manage the process of local inquiries, and the noble Lord seeks to apply this practice to the consultations under the provisions of the Bill. As I indicated earlier in the Committee’s deliberations, and as I think has been touched upon by a number of contributors to this debate, the Government propose a public hearing process enabling an opportunity for the public and parties to express their views. We need to consider how best to achieve that so as to ensure that the timetable for completion of the Boundary Commission’s reviews by October 2013 is met. It is fair to say that in order to do so we will need to consider all the existing provisions concerning consultation in the round, and I hope that that gives some reassurance. The Government have committed to further action on how consultation is undertaken by the commissions not only in terms of public hearings but in terms of counter-proposal provisions as well. On that basis, I urge the noble Lord to withdraw the amendment.
Lord Lipsey
Coming so soon after the progress that we have made this afternoon, I obviously entirely accept what the Minister has said. Not all the “t”s can be crossed and the “i”s dotted but I am sure that they will be by the time we get to Report. With that, I am happy to beg leave to withdraw the amendment.
Lord Howarth of Newport
My Lords, if the number of parliamentary constituencies in Wales is to be reduced, it must inevitably follow that the boundaries of constituencies for the Welsh Assembly and the boundaries of constituencies in Wales for this Parliament will no longer be aligned. I do not think that it would be right for us to seek to reduce the number of constituencies that return Members to the Welsh Assembly, but I think we should appreciate that, if we are going to legislate to cause these boundaries to cease to be coterminous and to diverge, problems will arise and damage will be done politically.
My noble friend reminded us that last week we considered two amendments on this issue. One proposed a phased reduction in the number of parliamentary constituencies in Wales and the other proposed that the reduction should be delayed until such time as the people of Wales had voted to have primary law-making powers transferred to the Welsh Assembly. Both would be helpful mitigating amendments, but let us recall, in the mean time, that the Welsh Assembly, unlike the Scottish Parliament, does not have primary law-making powers and that policy for Wales is made, on a very large scale, in the Westminster Parliament. There is a block grant which transfers resources from London to Cardiff. Home affairs, criminal justice, social security, pensions and, of course, defence, foreign policy and very major areas of policy are determined still for Wales by the Parliament of the United Kingdom.
It follows from that that it is a responsibility of Members of Parliament representing Welsh constituencies at Westminster to work in close relationship with their colleagues who are Assembly Members in Cardiff. They need to be able to talk to each other about the interests of the constituents that they jointly serve. The needs of Wales need to be represented by Welsh Members of Parliament at Westminster and as things are, they are well represented by Members of Parliament of all parties at Westminster. It is easier for them to do that job because the constituencies of Welsh MPs are the same as the constituencies of Welsh Assembly Members. When that ceases to be the case, it will be far more difficult for Welsh MPs and Welsh Assembly Members to work closely and effectively together in the interests of their shared constituents. There will overlapping of boundaries. There will be cases in which Welsh Members of Parliament will have to try to represent, at one and the same time, the interests of two Welsh Assembly constituencies which may not be in agreement about what it is that they would like their champion in the House of Commons to be arguing for. There will be a muddying and a blurring of responsibility. It will be more difficult for people to do their job.
Of course, the noble and learned Lord, like others in the Chamber, is very well aware of the experience in Scotland. I see that my noble friend Lord Foulkes is not here, but my noble friends Lord McAvoy and Lady Liddell are well able to testify that, whatever the merits may have been of the redrawing of constituency boundaries in Scotland, it cannot have been made easier for an appropriate collaboration to take place between Members of the Scottish Parliament and Members of the Westminster Parliament. This is one reason—there are other powerful reasons—why I believe that it is undesirable to reduce the number of constituencies in Wales, or, if the number of constituencies in Wales is to be reduced, we should do it at a gradual pace. The service that their elected representatives are able to give to their constituents will be impaired if we lose the existing alignment of boundaries.
Lord Wallace of Tankerness
My Lords, as has been indicated by the noble Lord, Lord Bach, one of the purposes of this clause is to ensure that the number of seats in the Welsh Assembly is not reduced as a result of the proposed reduction in the number of United Kingdom Parliamentary seats at Westminster. Indeed, a similar end was procured in relation to Scotland through primary legislation in 2004. I am not sure whether it was when the noble Baroness, Lady Liddell, was Secretary of State, but if it was not, she probably instigated it, and it was to secure the size of the Scottish Parliament, notwithstanding the significant reduction in the number of Scottish seats at Westminster. I am pleased to have heard the noble Lord confirm that he has no objection to that part of this clause.
The noble Lord did inquire, however, about the transitional provisions and took the opportunity to raise again the issues which were pretty thoroughly debated one day last week—I cannot remember which day it was; possibly Wednesday night. We had a thorough debate and I do not propose to go into all the arguments again. Suffice to say that it is the case that, even now, the Welsh Assembly has powers given to it under framework powers in primary legislation, or under legislative competence orders, to promote measures in the Welsh Assembly. As I indicated on that occasion, the underlying principle of the Bill is to ensure equality of constituencies throughout the United Kingdom and I have still not been given any answer as to why a seat in Cardiff should be smaller than a seat in Belfast, Edinburgh or Birmingham. I do not think that we can pursue that matter much further this evening.
The transitional provisions are intended to deal with interim boundary reviews which have already been begun by the Boundary Commission for Wales and have not been completed or have not yet been implemented at the time when Part 2 of the Bill comes into force. The commission will be able to decide whether to continue with any reviews which it has in hand but the consequence of continuing with any reviews would be that, in practice, they would apply only to the boundaries of Assembly constituencies.
The transitional provisions also provide that, where the commission has already delivered a report recommending alterations to constituencies before Part 2 of the Bill comes into force, but there has not yet been any order giving effect to the recommendations, an order must be laid in Parliament in accordance with the previous requirements. Such an order would therefore affect the Assembly constituencies and, where appropriate, Assembly electoral regions, but would not have any effect on parliamentary constituencies, which, of course, would be the subject of the boundary review, which is the substance of Part 2 of the Bill. I hope that that explanation will satisfy the noble Lord. I beg to move that Clause 13 stand part of the Bill.
Lord Wallace of Tankerness
My Lords, the noble Lord, Lord Lipsey, has moved an amendment that seeks to apply additional parliamentary procedures to the delegated powers in this Bill. The amendment would subject all delegated powers conferred by the Bill to the affirmative resolution procedure. As I understand it, the noble Baroness, Lady McDonagh, will not move her amendment proposing the super-affirmative resolution procedure, so I shall confine my remarks to the amendment of the noble Lord, Lord Lipsey.
There is no doubt that the Government recognise the value of parliamentary scrutiny. Indeed, that is why, in both Houses, we have sought to ensure that Members have had adequate time to debate the provisions of this Bill in detail. I cannot accept the allegation made by the noble Lord, Lord Howarth of Newport, that somehow or other the proceedings in the other place were perfunctory. I cannot remember offhand how many days were spent in Committee of the Whole House or on Report, but I know that every effort was made by the Government to ensure that those provisions in the Bill that were not subject to more detailed consideration in Committee were the ones with which the Report stage started. I think that I am right in saying that the only substantive clause that was not debated in the other place was that on which we have just had a brief clause stand part debate on the breaking of the link between the parliamentary constituencies in Wales and the constituencies of the National Assembly for Wales. That is not an unimportant matter, but I do not think that it is the most controversial part of the Bill.
None the less, we do not believe that it is necessary to apply additional parliamentary procedures, as suggested in the amendment, to those powers in the Bill that are not already subject to the affirmative resolution procedure. Moreover, it is worth noting that the Delegated Powers and Regulatory Reform Committee has not recommended that any such procedure should apply to these order-making powers. Like our predecessors, we attach considerable importance to what that committee says and, indeed, to what it does not say.
One exception to that was that the DPRR committee recommended that the power to make a transitional or saving provision in Clause 8(4) should be subject to the negative procedure. However, as we indicated when the noble Lord, Lord Lipsey, raised an amendment on that matter, the Government have made it clear that they intend to deal with this point by removing the power and instead making explicit provision to deal with the only scenario in which we would anticipate the power being necessary: namely, to ensure that, where a parliamentary by-election is called after the AV provisions are implemented—were they to be implemented—but before the first general election, that by-election would be held under first past the post.
There are a number of reasons why the amendment is not appropriate. Noble Lords may find it helpful if I briefly set out why I think that the increased scrutiny that the amendment seeks is unnecessary in relation to the delegated powers contained in the Bill that are not already subject to the affirmative resolution procedure.
First, it is not appropriate to make the order implementing or repealing the alternative vote provisions following the referendum subject to additional parliamentary debate. I think that we had some debate around this when we considered Clause 8, which was probably before Christmas. The relevant provisions in Clause 8 do not give Ministers wide-ranging powers about when the provisions can be brought into force or repealed; quite the opposite, they impose a number of clear, binding duties. The effect is that Ministers must bring certain provisions into force—or, indeed, repeal those provisions—depending on the outcome of the referendum. Furthermore, if there is a yes vote, the provisions will already have been debated in full during the passage of this Bill and the order would simply implement the will of the public as expressed in the referendum.
Fundamentally, subjecting the order-making powers in Clauses 8(1) and 8(2) to the affirmative procedure would change the nature of the referendum. As we also debated when we considered Clause 8, the referendum would become indicative rather than binding, since the order giving effect to the referendum result could subsequently be prevented from taking effect if the order was voted down. The Government believe that voting reform is a significant constitutional reform on which the people should have their say. Once they have had their say, this should not be thwarted by further procedural process.
Another key power on which the amendment seeks to impose an additional parliamentary procedure is that in paragraph 20 of Schedule 1, which provides for an order to be made to determine the maximum expenses recoverable by regional counting officers. That power replicates an existing power in the Representation of the People Act 1983 for parliamentary elections, which is similarly not subject to any parliamentary procedure because it is purely of an administrative nature.
By contrast, I think that it is sensible for the Bill to provide—as it already does in Clause 9—that the power to amend legislation in order to make purely consequential further changes to implement AV should be subject to the affirmative procedure.
On those grounds, I hope that your Lordships will agree that an additional parliamentary procedure for orders that are not already subject to the affirmative procedure in the Bill is neither necessary nor appropriate. No doubt we will return to the important points that the noble and learned Lord, Lord Falconer, made about the amendment in the name of the noble Lord, Lord Williamson, and I would propose to deal with these points then. In the mean time, I urge the noble Lord, Lord Lipsey, to withdraw his amendment.
Lord Lipsey
My Lords, I cannot claim to be absolutely convinced by every word that the Minister has just said. In particular, my antennae started twitching when he started talking about an indicative referendum on AV. Many of my friends believe that the AV referendum should have been indicative in the first place. I would not necessarily go that far, but I accept that if, on the day, the only two people who turn up at the polling station are the noble and learned Lord, Lord Wallace, and myself, both of us voting yes, there might be a small problem with the legitimacy of proceeding in those circumstances, to which a political solution will have to be found.
However, the Minister gave a reasonably comprehensible reply. I will study it and, if necessary, return to the matter at Report. In the mean time, I beg leave to withdraw my amendment.
Lord Howarth of Newport
My Lords, we all accept that it is desirable in any case to improve electoral registration, but I take issue with the noble Lord, Lord Newton, in what he said in relation to the Bill. Happily and conveniently, the Committee accepted the amendment in the name of my noble friend Lord Rooker, and there is therefore flexibility on the date of the referendum on electoral change, and there is no technical problem standing in the way of acceptance of the amendment of my noble friend.
Whatever view we take about the desirability of the forthcoming referendum—I favour a referendum on the question of electoral change—or whatever view we take on whether or not it is desirable to switch from first past the post to the alternative vote, although I prefer to keep first past the post, we can all agree that we want full participation by the people of this country in the referendum. We want its result not only to be legally binding but to have moral force. It will not have moral force if it is mired by a low turnout among those who are already registered. It will have less moral force if, unfortunately, it is conducted on a register which is demonstrably incomplete and inaccurate.
If there is to be an important moment in the national life in consideration of a major constitutional change, we should expect the Electoral Commission to take every reasonable step to ensure that there is a high level of registration. It is then for the campaigning groups to do all they can to ensure that there is a high turnout. This can be done and it should be done. The decision taken by the people at the referendum will have a greater validity. It will be more convincing if it takes place on the basis of fuller registration.
It is timely to have a drive for improved registration because we know that local authorities will have fewer resources in years to come, and that in the next few months they will perhaps still have the resources to mount the drive to improve electoral registration. We also know that given the housing benefit changes that are due to come in, more people may be obliged to move home. We will see more people coming off existing electoral registers and perhaps not getting on to new electoral registers. Before we see the full unfortunate consequences of those benefit changes, we should have a drive to improve electoral registration. It would be particularly timely and appropriate for that to take place in the next few months, certainly to ensure that we have the most complete and accurate electoral register possible when the referendum takes place, and as an investment in the electoral register for future elections.
For all those reasons, I support the amendment of my noble friend Lord Bach.
Lord Wallace of Tankerness
My Lords, this amendment, as has been made clear, concerns the commencement of the provisions relating to the referendum in the Bill. Part 1 provides among other things for the referendum on the alternative vote, for the entitlement to vote in the referendum and for conduct of the referendum. The proposal in the amendment is that the provisions should,
“not come into force until the Electoral Commission has certified that every local authority has taken all reasonable steps to ensure that the electoral register is as complete and accurate as possible”.
It will come as no surprise that the Government wish to resist the amendment. To be fair, it is a variation on a number of the amendments debated earlier in Committee, when debating Part 2, on whether the Boundary Commission’s review should commence until the Electoral Commission had certified that every local authority had taken all reasonable steps. We believe that the amendment would cause a serious risk of delaying the referendum.
Reference has been made to the successful amendment in the name of the noble Lord, Lord Rooker. Before that debate, I was detained by severe weather and was unable to get to the House, but I have noted what was said and I heard the noble Lord, Lord Rooker, say on other occasions that his intention was not to rule out 5 May, but to provide a lifeboat, whereas this amendment would, to all intents and purposes, rule out 5 May. In fact, the delay could be so substantial, perhaps even indefinite, if the relevant certification could not be provided, that the lifeboat might even be sunk before it was launched. I cannot understand why we should put ourselves in a position whereby perhaps one local authority electoral registration officer was somehow holding back and the Electoral Commission could not provide the required certification.
Lord Soley
The Minister has said that that will encourage improvement and I understand that. We all have to look for a way in which the Electoral Commission can set a basic standard below which people should not fall. I recognise that this point is wider than the amendment; it is not just a matter of improving it but trying to find a way of setting a basic standard.
Lord Wallace of Tankerness
I indicated that the commission's report on performance standards for electoral registration officers in Great Britain showed that just under 96 per cent of electoral registration officers met the completeness and accuracy of the electoral registration records standard this year. So they are already measuring and, against that, they found that just under 96 per cent had made it. I do not think there is any dispute in this Committee about the importance of electoral registration. We wish to pursue pilot studies to compare the electoral register against other public databases so that we can identify people who are not currently on the register. If the trials are successful, we will roll this out nationally to ensure that registration officers are aware of what has been shown up by the trials so that they can better target people to get them on the register. There is a commitment to improve the rate of electoral registration but we cannot accept that the referendum should be postponed, possibly indefinitely, awaiting the kind of certification which this amendment proposes. Therefore, I beg the noble Lord to withdraw the amendment.
Lord Bach
I am very grateful to all noble Lords who have spoken in this short debate and particularly to the Minister for what he has said. I am not so sure about the noble Lord, Lord Newton, who made me sound like a kind of modern Herod who wants to lock up 16 to 18 year-olds who do not register. Both sides recognise that this is a serious issue and it has to be dealt with. Of course, I shall withdraw the amendment tonight but we may well bring this up again in some form on Report. I beg leave to withdraw the amendment.
Parliamentary Voting System and Constituencies Bill
Lord Wallace of Tankerness Excerpts(13 years, 10 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I start by thanking the noble Lord, Lord Touhig, for moving this amendment almost three hours ago, and for the measured and considered way in which he advanced his arguments. He encouraged Members of the Committee to be thoughtful, and triggered a considerable number of thoughtful and thought-provoking contributions to the debate. They ranged widely over parliamentary, cultural and family history, and over the contribution that distinguished Members representing Welsh constituencies have made to the parliamentary democracy of our United Kingdom. I will also refer at the outset to the point made by the noble Lord, Lord Elystan-Morgan, about Wales being a nation. My noble friend Lord Morgan and the noble Lord, Lord Rowe-Beddoe, echoed that point. Certainly I accept that Wales is one of the constituent nations of our United Kingdom. I, too, would bristle if I looked up “Wales” in an encyclopaedia and found, “See under England”. Even though I am not Welsh, I would find that offensive.
The amendment seeks to guarantee a minimum of 35 constituencies in Wales. In response to the point made by the noble Lord, Lord Bach, it is my understanding that when there was a debate on Report in the other place on the provisions of the Bill to equalise the size of constituencies, there were contributions from 16 Welsh MPs. Although the Government did give consideration to a Welsh Grand Committee, the Secretary of State for Wales and my honourable friend Mr Mark Harper, the Minister who is responsible for this Bill in the other place, held a meeting to which all Welsh MPs were invited. There was extensive discussion and Mr Harper offered individual follow-up meetings to all Welsh Members. That was the spirit in which the meeting took place.
Lord Kinnock
My Lords, will the noble and learned Lord give way as a parliamentarian?
Lord Wallace of Tankerness
No; I wish to answer some of the points that have been made in the debate.
The amendment stipulates the figure of 35, which—as was said by one or two contributors, not least by the noble Lord, Lord Touhig, in moving his amendment—reflects the figure set out in the 1986 Act, which stated that there should be no fewer than 35 Members from Wales. I observe that the same Act stated that there would be no fewer than 71 Members for Scotland. That provision was repealed by the Labour Government. I do not complain about that; indeed, I encouraged them to do so. The number of Members of Parliament from Scotland under the Labour Government fell from 72 to 59, and is set to fall again under the Bill to 52, which is about a 26 per cent reduction. That will be relevant when we come to consider issues about devolution raised by the noble Baroness, Lady Finlay of Llandaff, and the noble Lord, Lord Elystan-Morgan.
My noble friend Lord Roberts of Conwy gave a clear expression of the Government's position as admitted in evidence. One of the underlying purposes of the Bill is to try to secure fairness—equal vote, equal value—throughout the United Kingdom. The amendment which has been moved and those which have been spoken to would go against that fairness of one vote, one value throughout the United Kingdom. We believe that every elector’s vote in elections to the other place should have the same value, regardless of where that vote is cast in the United Kingdom. It is important to emphasise that we are not in any way proposing less representation for Wales than other parts of the United Kingdom. Indeed, the value of a vote in Wales will be the same as the value of a vote in England, the same as the value of a vote in Scotland, the same as the value of a vote in Northern Ireland.
We have allowed for a 10 per cent range of tolerance between the largest and smallest constituency to take account of local and other factors. The noble and learned Lord, Lord Morris of Aberavon, gave the impression—a caricature—that it was simply a matter of drawing square boxes on maps. That is not the case and does great disservice to the Boundary Commission, which will look at the issues and take account, to the extent that it thinks fit, of important matters such as special geographical considerations—the size, shape and accessibility of a constituency. The noble and learned Lord put it very well when he gave the illustration that a parliamentary boundary does not define which rugby team you will play for. As my noble friend Lord Crickhowell, said, when people are asked where they belong, they tend to answer in terms of old counties or smaller towns and communities. They tend not to identify where they belong in terms of parliamentary constituencies.
I am not sure whether my noble friend Lord Steel is present—I saw him at one point—but he will recall that when he represented the seat of Roxburgh, Selkirk and Peebles, having the rugby teams of Hawick and Gala in the same constituency set up some interesting issues of rivalry between different communities. As I said in response to a debate yesterday evening, Members of Parliament by their nature represent a number of different communities within their constituency. The noble Viscount, Lord Tenby, and the noble Lord, Lord Bach, made the point about size and accessibility. Brecon and Radnorshire, which is the largest constituency in Wales, is often given as an example. To give a sense of perspective, it is worth stating that at 1,160 square miles, the current Brecon and Radnorshire constituency is considerably smaller than the constituency represented by my honourable friend Lord Thurso in Caithness, Sutherland and Easter Ross, which is just under three times larger than Brecon and Radnorshire. Then there is the constituency represented by my right honourable friend Mr Charles Kennedy, of 4,909 square miles. Of course, there are geographical limitations which the Government have submitted in the rules.
Lord Thomas of Gresford
My Lords, does my noble and learned friend recall that the late Lord Livsey, who for many years was the Member of Parliament for the then Brecon and Radnor constituency, was one of the most loved Members of Parliament, hard-working and known throughout the whole of that constituency?
Lord Wallace of Tankerness
I think that that would be accepted and acknowledged on all sides of the Committee. It is not just me standing here saying that it is feasible to represent a constituency of such a size, but the electors of Caithness, Sutherland and Easter Ross, and of Ross, Skye and Lochaber have returned their respective Members of Parliament on several occasions, which suggests that they have been able to address the genuine needs of a constituency covering many communities.
Lord Kinnock
As we are explicitly discussing Wales, and the issue of Brecon and Radnorshire has been brought up, how does the noble and learned Lord suggest that that most rural constituency in Wales and England, with an electorate of 58,000, can be brought into consistency with the Government’s formula of a tolerance of 5 per cent either way and about 75,000 or 76,000 without making the size of the constituency now formed by Brecon and Radnorshire absolutely absurd and communication in that constituency almost beyond reach? I recognise the experience in Scotland. To create a constituency in mid-Wales that has about 70,000 to 80,000 constituents, there would have to be an effective destruction of neighbouring constituencies—to the north, in Montgomeryshire; or to the west, in Ceredigion; or to the south, in the former mining valleys. A suggestion about how a cogent constituency of between 70,000 and 80,000 can be formed would be helpful to the debate.
Lord Wallace of Tankerness
The first thing to note, because it happened very late at night, is that the Government accepted an amendment from my noble friend Lord Tyler with regard to existing constituencies being a factor to which the Boundary Commission may, if it sees fit, have regard. Perhaps that was not widely appreciated because there were not many of us around.
Lord Wallace of Tankerness
I think that the noble Lord congratulated us on that at the time.
The point I am trying to make is that the two Scottish highland constituencies to which I referred are substantially greater than Brecon and Radnorshire—in the case of Caithness, Sutherland and Easter Ross, almost three times as big; in the case of Ross, Skye and Lochaber, more than four times as big. We would have to go a very long way before we got anywhere near constituencies of that size, which have equally challenging geographical issues. Nevertheless, Members of Parliament have successfully represented those constituencies, as can be seen by the fact that they have been returned regularly in elections.
I take on the genuine issue, which several noble Lords have mentioned, of the effect of the interaction with the Union. I express myself as a passionate advocate of the benefits of the United Kingdom, while at the same time as someone who has vociferously argued for devolution. I recognise the sincerity with which the noble Lord, Lord Touhig, raised his concern about the Union.
My point, on which the noble Lord, Lord Rowlands, picked me up, is not unreasonable. I think that there is an issue of fairness, and I have not yet heard the argument why it is in some way unfair that a vote in Cardiff should have the same value as a vote in Belfast, London and Edinburgh. Indeed, those who argue the contrary must tell us what explanation we give to a voter in Edinburgh that a vote in Cardiff should be worth more. I have not yet heard that explanation. Neither do I believe that in some way that difference in value will cement Wales’s place in the Union. In fact, I think there is some merit in saying that if all parts of the Union are treated equally, that is positive. I would have hesitated to say it, because I am not Welsh, but my noble friend Lord Crickhowell made the point that the Welsh nation can have true confidence in itself. It does not need overrepresentation in order to have confidence in itself. That is worth bearing in mind.
I come on to the point raised by the noble Lord, Lord Elystan-Morgan, when he asked about various points I had made in the past about devolution. Points have been raised about the Speaker’s Conference. As my noble friend Lord Crickhowell said, much has happened since the 1944 Speaker’s Conference, and much has happened since the remarks attributed to my right honourable friend Kenneth Clarke in 1992. We cannot hypothetically say, “What would happen to this Bill if we had the Wales Office and had never had devolution?”. That is not the situation today. It is the case that on the back of devolution, Scotland reduced its representation from 72 to 59, but devolution is not relevant to the proposals that the Government are putting forward because we are not seeking to make a distinction between Scotland, which has a different form of devolution from Wales, Wales, which may have more powers following the referendum on 3 March, Northern Ireland, which has a different system of devolution again, and England, which has no devolved government.
Noble Lords made the point that the United Kingdom Parliament deals with macroeconomic policies, defence—the noble Baroness, Lady Finlay, spoke of the contribution that the constituent parts of the United Kingdom make to the Armed Forces—social security matters and pensions matters. The Government are saying that representation should be fair in all parts of the United Kingdom. There may be some who would argue that because Scotland has its Parliament dealing with a range of domestic issues, there could even be an argument for underrepresentation, but that is not the position of the Government. The Government believe that there should be equal representation in all parts of the United Kingdom, and that is what underlies this. We do not find it particularly acceptable that, for example, the constituency of Arfon, which was mentioned by my noble friend Lord Roberts of Conwy, has an electorate of just over 40,000 whereas Falkirk has an electorate of 80,000. Indeed, it was pointed out that even within Wales, there are substantial divergences in the number of electors.
I shall pick up the point on the Welsh language. I cannot see why the reduction in the number of Members from Wales would have an impact on the Welsh language. As my noble friend Lord Crickhowell said, some of the great steps forward for the Welsh language were taken by people who were not Welsh-speaking in response to those who made very good, cogent arguments for the Welsh language over many years. It is the case that many Members of Parliament in our inner cities are dealing with constituencies in which a variety of languages are used by people from minority ethnic communities.
The noble Lord, Lord Williamson, made an important and valuable contribution when he referred to his manuscript amendment and there will be an opportunity to debate it more fully when—when—we come to Clause 18. The amendment would, as I understand it, mean that the first boundary review would take place as though the new rules were in force; the existing legislation would remain in force in the mean time; the new boundary provisions would be commenced only once the Boundary Commissions had reported; and votes in both Houses on the commencement order would be at that point. The House would effectively have the choice of commencing the new rules or retaining the 1986 Act rules. I recognise the intention behind this amendment, which was briefly spoken to by the noble Lord, and I salute the helpful spirit in which it was proposed. We will clearly want to give thought to the issues that it raises, but I will put down a caveat in that it invites Parliament to do what it does not usually do. Parliament usually sets the rules for the Boundary Commission and does not give people who have more than a vested interest in them the opportunity to decide whether they should introduce new boundaries that have a direct effect on them. Having said that, it is an innovative suggestion that I would be very happy to discuss with the noble Lord. I hope we will be able to have that discussion soon before we debate his amendment in due course.
In conclusion, I repeat that the provisions in this Bill will mean a reduction in the number of Welsh constituencies, just as in the rest of the United Kingdom. In opening this debate, the noble Lord, Lord Touhig, pointed out that Wales has 5 per cent of the population of the United Kingdom. On the 2009 figures, the overall proportion of Welsh seats in Westminster would go from 6 per cent to 5 per cent. I do not believe that that poses a threat to the Union. If anything, I believe that greater fairness and equality can help strengthen our union, and I beg the noble Lord to withdraw his amendment.
Lord Touhig
My Lords, we have had a first-class debate. Seventeen of your Lordships have taken part. We have had a debate in the unelected House of our Parliament that the Government denied the elected House. In responding, the Minister took an intervention from the noble Lord, Lord Thomas, who mentioned the late Lord Livsey. I, too, knew, admired and respected Richard Livsey, and if he were here tonight, I have no doubt about which side of the argument he would be on. I hope the House will forgive me if I do not follow the normal courtesy and respond to all the contributions that were made because I do not think that I could match the eloquence and power of the argument. We have spent just over three hours on this debate, and I am not here unnecessarily to take up your Lordships’ time.
Those who have spoken in this debate and I have sought to improve this Bill in the interests of the people of Wales. I am disappointed by the Minister’s response. We have clearly failed to impress upon the Government our concerns about the adverse impact this Bill will have on Wales. I believe that we have approached the debate in the best traditions of your Lordships' House. We have expressed our view and our concerns about the implications of this Bill on Wales. We have not been prescriptive and said, “Here’s a problem; here’s an answer; you must take it”. Noble Lords who have signed the amendments in this group have put their names to not one but three possible alternatives which the Government might have considered and reflected upon and come back at a later stage with some proposal that might have assuaged our fears. I believe it is in the best traditions of your Lordships' House to give the democratically elected Government time to reflect on the arguments that have been put. We offered an olive branch, but I fear that that olive branch has been tossed away. I worry because those of us who feel passionately about Wales and about the Union of the United Kingdom intend to continue to make this argument and this debate. The other place did not have an opportunity to debate these amendments or to express a view. It is with a heavy heart that I feel it is necessary to divide your Lordships' House so that we may express an opinion on Amendment 89BA.
Parliamentary Voting System and Constituencies Bill
Lord Wallace of Tankerness Excerpts(13 years, 10 months ago)
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Baroness Farrington of Ribbleton
Can my noble friend or the Minister tell me whether the sort of flexibility that the Leader of the House referred to today would allow margins of flexibility on the final number—that keeps reminding me of a book in which the answer is 42—so that it would then be easier to have regard to local differences? I think my noble friend Lord Rooker, whom I respect enormously and have worked with for years, may be able to take a slightly more laid-back view on this issue than, for example, a Minister were he or she to dare to go to the boundary between Lancashire and Yorkshire.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, Amendments 68 to 71 specify more explicitly the way in which the Boundary Commissions are to draw up new constituency boundaries and take some discretion away from the Boundary Commissions. They provide that constituency boundaries must be contained within existing county boundaries and must not split local government wards and propose limits on the number of local authority areas that constituencies can cross. With the exception of Amendment 69 on wards, they appear to be directed at English local government structure only. I am not sure whether that was the intention or whether they were intended to apply to other parts of the United Kingdom as well, but I am not going to nitpick over that because in moving the amendment the noble Lord, Lord Snape, indicated that they were important and that has been reflected in the debate that we have had.
The Bill provides for the Boundary Commission to take into account local government boundaries within the range of flexibility provided by the Bill. Projections indicate that with that flexibility it would be possible to have constituencies varying from 72,000 to 79,000 electors. The Bill’s provisions represent a rebalancing of the rules in existing legislation; namely, the equality in the weight of a vote and the flexibility to recognise local factors. We believe that the existing legislation results in unclear and potentially contradictory sets of rules. Indeed, the Boundary Commission for England has said that each rule taken on its own is quite clear but it is required to apply all the rules and its experience, and that of its predecessors, is that there is often conflict between them.
What is proposed in the Bill with regard to Rules 2 and 4 is to have a hierarchy, as was said in one of the exchanges. It is because of this rebalancing that we have given precedence to the size of electorate and the geographical area of each constituency over other factors in Rule 5, such as local government boundaries. I believe these other factors are important, and that is why we have provided the Boundary Commissions with the flexibility to consider them. I emphasise to the noble Lord, Lord Haworth, that it is possible for the Boundary Commission to have regard to local ties. The Boundary Commissions have regard within a 10 per cent band of the UK electorate quota between the largest and smallest constituency. We believe that the provisions of the Bill represent a reasonable balance between these factors and ensure a system where votes have equal value throughout the United Kingdom.
In response to a point made by the noble Lord, Lord Dubs, there is nothing in the Bill or in the Boundary Commission rules at the moment to move individual electors from one local authority area to another. But as is the case at the moment, some constituencies cross London borough boundaries. In fact, 19 out of 32 London borough boundaries are crossed by a constituency boundary. That does not transfer the individual elector within that local authority area.
Lord Dubs
I may not have been clear. I was referring to a situation where a council estate was owned by one local authority and part of that council estate was in a different parliamentary constituency and borough. It was an anomaly in terms of both borough and parliamentary boundaries.
Lord Wallace of Tankerness
I am grateful for that clarification. As I indicated, under the existing rules, 19 out of 32 London borough boundaries are crossed by a constituency boundary. My noble friend Lord Eccles also reflected on the fact that boundaries are crossed under the existing rules. My information is that 16 out of 35 shire counties are crossed by a constituency boundary and 31 out of 40 unitary boundaries. In its fifth report the Boundary Commission noted that in the fourth review, 13 constituencies crossed metropolitan district boundaries whereas in the review which took effect in 2010, 22 constituencies did so. And whereas in the previous review 170 constituencies had crossed non-metropolitan district boundaries, the recommendations for the fifth review included 165 which did so.
In Scotland, where I accept there are other issues with regard to wards because of the multi-Member nature of the local authority wards, there is one constituency—that of my honourable friend Mr Mundell, the Parliamentary Under-Secretary of State at the Scotland Office—which covers parts of three council areas. His constituency of Dumfriesshire, Clydesdale and Tweeddale covers the council areas of Dumfries and Galloway, Scottish Borders and South Lanarkshire. This is an important point. My noble friend Lord Naseby mentioned the fact that he had at one stage represented three local authority areas.
Lord Bach
I am sorry the noble Lord, Lord Naseby, is not in his place. I should have asked him at the time. The three he mentioned would have been two district councils and Northampton county council, which overrode both the two district councils. So it would not be three separate district councils—it would be a county council and district councils within the same county, as far as I know Northampton.
Lord Wallace of Tankerness
I defer to the noble Lord’s superior knowledge of the English local government system. In the case of Mr Mundell, it is three unitary council areas. The constituency which I used to have the privilege to represent in Shetland is one of those preserved by this Bill and it had two local authority areas within it.
I recognise the point made by the noble Lord, Lord Snape, about the relationship which individual Members of Parliament have with their local authorities. There are numerous cases where Members of Parliament represent more than one local authority area. No one is suggesting that any of those who fall into that category do not do their job on behalf of their constituents as well as those MPs who only have only one local authority within their constituency. I note in passing that Mr Mundell increased his majority at the 2010 election by 1.9 per cent. Without causing any difficulties with my coalition partners, that, for a Scottish Conservative in the 2010 election, was quite an achievement.
It is important, too, to look at this from the perspective of the elector. With regard to “one vote, one value”, the electors are only in one local government area with one Member of Parliament. We should not necessarily be looking to the administrative convenience of Members of Parliament at the expense of the value of votes for the individual elector.
Lord Howarth of Newport
I would be very grateful if the Minister could give the House his response to the following observation made by Dr Lewis Baston in Democratic Audit: January 2011 on this issue of the splitting of wards:
“It is probably impossible to implement a 5 per cent rule without splitting wards between constituencies, something which the Boundary Commissions currently avoid doing because of the potential for voter confusion and highly artificial constituency boundaries, not to mention causing headaches for the organisation of all political parties. … The worst-affected areas are those where wards have large electorates, such as the English metropolitan boroughs, most of Scotland and some unitary authorities and London boroughs. A rigid 10 per cent rule might still involve a few isolated cases of ward-splitting, but it is likely to be very uncommon in comparison with a 5 per cent rule”.
Is there not a lot of very good sense in that?
Lord Wallace of Tankerness
As my noble friend Lord Rennard said, there is no limit to the number of special cases. If we move without any other limitation to a 20 per cent band rather than a 10 per cent band, we are moving away from the basic principle of equal value. Broadly speaking, we have followed the provisions of the 1986 Act with regard to local authority boundaries, and while we are keen to avoid being too prescriptive on this issue, there may be some merit in placing a discretionary consideration of wards in the Bill. We certainly want to consider further the elements of these amendments that concern the use of wards. Other amendments have been tabled with regard to wards by the noble Lords, Lord Lipsey and Lord Foulkes, and my noble friends Lord Rennard and Lord Tyler. We want to consider, therefore, the use of wards and to bring back a fully considered response on that on Report since it is an important point. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Davies of Stamford
Before the noble Lord sits down, will he recognise that there will be considerable pleasure in many parts of the House at what he has just said about the recognition of the importance of wards? On a first reading of this Bill, it looked rather strange that other criteria were mentioned in Clause 11(5), such as local authority boundaries and European constituencies, but there was no explicit mention of wards. What he has just said about considering making a specific mention will go a long way to reassuring a lot of people who are concerned with this point.
Lord Wallace of Tankerness
I am grateful for those reassuring remarks from the noble Lord. Not only do wards provide possibilities as building blocks, but their very nature means that local ties are cemented through them.
Lord Snape
This has been an interesting debate. Fourteen noble Lords, including those on the Front Benches, have participated and I will ensure that my closing remarks guarantee that the debate is concluded in less than two hours. That gives the lie to those outside who say that none of this debate has been particularly relevant and that much of it, if not all of it, has been designed merely to hold up the Government’s legislation. That is not the case and I am sure that I speak for noble Lords on all sides of the House in thanking the Minister for the way in which he has just responded. If he could persuade his colleague, the noble Lord, Lord McNally, to adopt the same emollient tone, we might have two nice Ministers responding. So far he has not been too successful, so he had better stay where he is to ensure that the mood of your Lordships’ House does not change.
I will refer in closing this debate to some of the contributions that have been made from both sides, all of which have been relevant. My noble friend Lord Kennedy gave us the benefit of his knowledge of Derbyshire, pointing out that it would be difficult to retain parliamentary seats in Derbyshire under the 5 per cent rule and that it might be necessary to cross county boundaries. He mentioned High Peak and Greater Manchester. There is some affinity between the two, in that many commuters travel between them, but that is about it; from a social and economic point of view, there is not a great deal to unite them. He also emphasised the importance of the names of seats.
My noble friend Lord Dubs correctly pointed out that there are anomalies under the present system, to which the Minister also referred. No one says that the present system is perfect—it cannot be—but I refer without quoting directly to the committee in the other place, which said that there would be a great many more anomalies unless we looked in detail particularly at the 5 per cent rule.
My noble friend Lady Liddell of Coatdyke reminded us of the importance of the relationship between elected Members. Although, to paraphrase what the Minister said, legislation should not necessarily be about the administrative convenience of Members of Parliament, it should not be about exacerbating the differences between them either. The greater the number of district councils involved on a particular issue, the greater the number of Members of Parliament. That is regardless of party. It has been known for Members of the other place of the same party to disagree about constituency matters. I know that such a thing would never occur among the Liberal Democrats, but I suspect that the Conservatives are a bit more like us and are more inclined occasionally to fall out.
My noble friend Lord Haworth referred to a particular constituency difficulty in London and spoke of giving evidence with some trepidation at a public inquiry. We are anxious to preserve the principle of public inquiries on boundary alterations. Any confrontation between him and Ivor Stanbrook QC would lead to only one winner—you do not need the letters QC after your name to be able to act as an advocate in such a way as I know that my noble friend does.
My noble friend Lord Bilston gave us the benefit of his 40 years of distinguished service at various levels in the Black Country. He quoted Omar Khayyam. I cannot compete with that. I suspect that the words that he quoted so movingly were not aimed at Boundary Commissions or boundary alterations, but they were certainly appropriate in the context of this debate. He reminded us of the long-standing feeling of hurt when electors are transferred from one district to another. In my former constituency in West Bromwich, we had some difficulty in 1974 in deciding the name of the new borough. Even now, 40 years on, the borough of Sandwell is not immediately recognised throughout the United Kingdom. You do not often hear the people who lived in the former authorities that formed the borough of Sandwell saying in response to a question as to where they live: “Well, actually, I live in Sandwell”. I was a fairly new Member of the other place when the borough was created. I was told that people in Smethwick, which formed part of that borough, having been transferred to the new constituency of Warley, which they did not particularly recognise, were certainly not going to have imposed on them the name West Bromwich, although that seemed to me as an outsider at the time to be the most sensible name for the new borough. I suspect that there will be many difficulties and arguments such as that unless the Government see sense on the 5 per cent deviation rule.
My noble friend Lord Davies of Stamford at least provoked an intervention from the other side of the Chamber when he pointed out that none had been made until he got to his feet. He emphasised the importance of the ward structure, as, to be fair, did the Minister in his reply. One participant from the other side was the noble Lord, Lord Rennard, who was rather more emollient on this occasion than he has sometimes been in the past in saying that there should be discussion rather than hard-and-fast rules. He rather skated over the fact that there will be many more such anomalies unless, I repeat, the 5 per cent deviation rule is eased. He implied, although he did not say so in as many words, that just a few more constituencies would cross local authority boundaries under the legislation. That was not the view of the committee in the other place or of organisations that wish to defend the integrity of counties such as Cornwall. I readily accede to the experience and knowledge of constituencies of the noble Lord, Lord Rennard—it was until fairly recently impossible to conceive of a by-election taking place without a figure lurking in the background with a coy and retiring smile, which invariably belonged to the noble Lord—but I hope that he will recognise that, unless some changes are made to the Bill, the anomalies that have been raised on both sides of the Committee will be perpetuated. Indeed, my noble friend Lord Lipsey put his finger on the matter in his brief intervention, saying that under the legislation only nine out of 46 counties would have their boundaries respected. That is an anomaly; it is a significant change, which the Government should look at.
My noble friend Lord Rooker entertained us with stories about Sutton Coldfield joining Birmingham. Unfortunately, the former Member of Parliament for Sutton Coldfield, the noble Lord, Lord Fowler, was not present, otherwise we might have seen a discussion, if not a minor spat, between the two of them. My noble friend and I were referred to by the British press in the context of some of the debates last week as a couple of ageing lefties. I suppose that we ought to be suitably grateful that, for once, the British press got something half right. My noble friend Lord Campbell-Savours said that we have to move on the 5 per cent deviation rule, as did my noble friend on the Front Bench, who said that constituencies would otherwise become fragmented and disjointed.
I was grateful for the tenor in which the noble and learned Lord, Lord Wallace, responded. These are matters to which we shall have to return on Report, as he said. Given that, and the amiable nature of the debate—and the fact that no time has been wasted—I beg leave to withdraw the amendment.
Lord Davies of Stamford
The factual answer to that factual question is yes, of course I recall that. No one in my constituency over the age of about 40 will have forgotten that. Nevertheless, that issue was resolved happily for all concerned in the context of public inquiries and establishes a very good precedent for them as a way of maintaining, or when necessary restoring, public confidence in the system.
Lord Wallace of Tankerness
The amendment would restrict the Boundary Commission in drawing up new constituency boundaries by a series of provisions specifying that constituency boundaries may not cross certain local authority or European constituency boundaries. I noted that, when moving his amendment, the noble and learned Lord, Lord Falconer of Thoroton, reiterated that he and his colleagues recognised the need for greater equality but seek to put that restriction on to the Boundary Commission in its recommendations.
The Bill provides for the Boundary Commission to take into account local government boundaries, as well as local ties, although that has not been acknowledged in some contributions. As we have said on more than one occasion, that is subject to the principle of equality. We believe that the details of how it does that should be a matter for the Boundary Commission. Just to clarify, a government amendment to the definition of local government boundaries was made in the other place. I re-emphasise that it means that the Boundary Commissions may take unitary authority boundaries into account.
It has been made clear in several contributions, not least that of my noble friend Lord Newton of Braintree but also that of the noble Lord, Lord McAvoy, that even under the existing arrangements the Boundary Commission has not exactly achieved what in some people's view might be perfection. The noble Lord, Lord McAvoy, talked about Hamilton being split into two. Even before the current split, there was a previous split between Hamilton North and Bellshill and Hamilton South. An important point, which was made by my noble friend Lord Newton and alluded to by the noble Baroness, Lady Hughes of Stretford, is that local government is not the sole challenge that Members of Parliament have to deal with. There are health boards, primary healthcare trusts and police divisions. It would be a nightmare, if not an impossibility, to try to ensure that the Member of Parliament had to deal with only one each of police, health and local authorities.
As we mentioned in debates on previous groups, we have sought generally to follow the 1986 Act provisions on local authority boundaries. We want the Boundary Commissions to have flexibility to take account of specific circumstances, but we also recognise that there is some merit in placing discretionary consideration in the hands of the Boundary Commission, including with regard to wards, about which I will say more in a moment.
In its fifth general report, the Boundary Commission for England noted that,
“some wards on the outskirts of towns contained very different communities. For instance, there were occasions where the majority of the electorate of the ward were urban dwellers residing in a very small area of the ward on the edge of a town. However, the small remainder of the ward’s electorate was made up of those living in rural communities some distance from the town”.
That is why we believe there is a reasonable case in certain circumstances for the Boundary Commission to have discretion to split them and why there should not be a prohibition, which would be the effect of at least four of the provisions of the composite amendment moved by the noble and learned Lord.
I repeat that we seek—and this is enshrined in the Bill—to ensure one value for one vote, not to draw up constituencies to suit the administrative convenience of Members of Parliament. I cannot accept that, as the noble Lord, Lord Howarth of Newport, proposed, it is somehow impossible for a Member of Parliament to discharge his or her functions if his or her constituency includes more than one local authority. My noble friend Lord Newton of Braintree made that abundantly clear.
Lord Howarth of Newport
I am not saying that. I am certain that the noble Lord, Lord Newton of Braintree, represented his constituents entirely admirably. I am objecting to the thrust of reform that makes it far more likely that local authorities will be fragmented and that constituencies will consist of more, rather than fewer, local authorities, which must be calculated to make it harder for all concerned—Members of Parliament, other elected members and constituents.
Lord Wallace of Tankerness
I listened to the noble Lord’s speech, and he gave the very clear impression that that was challenging in the extreme. As my noble friend said, there were three local authorities in the constituency that he represented. The constituency that I represented contained two local authorities. On the basis of the figures that I gave in a previous debate, by my calculation 187 Members of Parliament represent constituencies that have more than one metropolitan or non-metropolitan district boundary. I believe that it is more than possible to do an adequate job of representing one's constituents where there is more than one local authority in a constituency.
We do not believe that we should be tying the hands of the Boundary Commission in a way that prevents it from recommending the best solutions for electors simply for the convenience of Members of the other place. I take the point made by the noble Lord, Lord Foulkes, and the noble Baronesses, Lady Hughes and Lady Farrington, about the importance of local constituency parties. They of course have an important role in oiling the wheels of our democracy, but I do not think that their interests should be elevated above those of individual constituents.
I do not want to follow down the path of anecdotage, but the noble Lord, Lord Foulkes, mentioned the number of party fundraising events at this time in Scotland that are focused on Burns suppers. I had the great pleasure of attending a Liberal Democrat Burns supper in South Edinburgh, which has already reorganised itself to take account of the changes in the boundaries and the disjunction between Scottish parliamentary boundaries and Westminster boundaries. I do not really want to hear more of the Burns supper adventures of the noble Lord, Lord Foulkes.
Lord Foulkes of Cumnock
I just wondered whether it was in the Edinburgh South UK parliamentary constituency or the Edinburgh Southern Scottish parliamentary constituency.
Lord Wallace of Tankerness
The point I was making was that it now calls itself South Edinburgh to take in the various parliamentary constituencies in the south of Edinburgh.
Lord Wallace of Tankerness
I have tried to be patient.
Four out of the seven provisions in the amendment relate to wards and how they should be used in the Bill. I cannot accept that the Government have been dismissive—the word used by the noble and learned Lord—of wards. I certainly endorse what the noble Lord, Lord Graham of Edmonton, said, about the importance of the ward level. That is why, in response to the previous set of amendments, I stated our belief that wards are in many cases already the building blocks of constituencies. They are the level that can often reflect local community ties. The English Boundary Commission has confirmed that in the majority of cases in England, wards are used as the basic element of each constituency. For reasons that I have already given—that some wards might combine a large part of an urban area on the outskirts of the city and a rural hinterland—there might be reasons to give the Boundary Commission discretion to split boundaries. Therefore, an absolute prohibition, as proposed in the amendment, goes too far. I hope that the undertaking that I gave in response to the previous debate to look seriously at the issue of wards and to bring back our proposals on Report will satisfy the House at this stage. On that basis, I invite the noble and learned Lord to withdraw his amendment.
Lord Falconer of Thoroton
I am grateful to the noble and learned Lord for the detail into which he went. I will very briefly deal with his points. First, he rightly says that the Bill states “may take into account”, rather than the commission being bound not to cross ward, unitary authority or other boundaries. If the noble and learned Lord cares—not now—to read my amendment, he will see that in some cases it is an absolute prohibition, for example in relation to European Parliamentary boundaries, district or borough wards. In others, it is not; it is a provision to “take into account”. I have sought to reflect the point that the noble and learned Lord makes.
Secondly, I think the Minister said that 187 constituencies cross both metropolitan and other local authority boundaries. He does not need to intervene on this; his point is broadly that 187 currently cross different sorts of local authority boundaries. I completely accept what the noble Lord, Lord Newton of Braintree, who has much influence in the House, said. I am sure that he completely and excellently represented his constituency. The point that is being made on the other side is that it is better if that is not the position. One assumes that if it is 187 now, it is bound to go up under the changes to be introduced under the Bill.
The noble and learned Lord’s third point was that he accepts as a matter of principle that the ward will be the building block. That was expressed explicitly by Nick Clegg when he appeared before the House of Lords Constitution Committee and when he spoke in answer to questions in the Commons. Why not put that into the Bill? My fourth and final point is to say how sad I was not to be in Edinburgh South—that is, Morningside, where I was born and brought up—to attend the noble and learned Lord’s Burns Night supper.
I am grateful that he said at the end that he will come back with some ideas. I am not taking that as him giving me any kind of assurances, but I shall wait to see what happens next before deciding what to do about this sort of amendment. In those circumstances, I beg leave to withdraw my amendment.