Agriculture Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 22nd September 2020 Lords Chamber

[Lord Wallace of Tankerness (LD) [V]]

My Lords, I very much support the amendment, the purposes of which have been so well articulated by the noble Lord, Lord Curry of Kirkharle; I was pleased to add my name to it. The noble Lord clearly sets out the progress that has been made, and the need to ensure that that is sustained and not undermined.

In Committee, I subscribed to and supported a similar amendment in the noble Lord’s name. On that occasion, I quoted from a letter which the president of the National Farmers Union of Scotland, Mr Andrew McCornick, had sent to MPs during the passage of this Bill in another place. It was admittedly before the Government announced their Trade and Agriculture Commission; nevertheless, I believe that the sentiments expressed are still relevant and worth repeating.

Mr McCornick wrote

“it is vital that future trade deals do not curtail our ability to grow our reputation as a nation of provenance and quality by undercutting domestic production with imported produce, with which we cannot compete on price and production method.”

This amendment is drafted in similar terms to the one tabled in Committee, but there is a crucial difference. We have heeded the concerns expressed during the debate in Committee about the short life of the Trade and Agriculture Commission which was proposed then. So this amendment proposes a continuing existence for the commission, after producing its important primary report, to make recommendations to the Secretary of State to promote, maintain and safeguard current standards of food production through international trade policy, including standards relating to food safety, the environment and animal welfare. This continuing role may be achieved by the Secretary of State prescribing further functions for the Trade and Agriculture Commission after its initial report is published, and in any event, because the TAC will have a continuing responsibility to report on any trade agreement negotiated by the Government, to consider its impact on the trade of agri-food products and to assess its impact on the ability of the Secretary of State to promote, maintain and safeguard standards of agri-food production, including in relation to food safety, the environment and animal welfare.

The amendment would give the commission an explicit additional duty to advise Parliament on all trade deals and how they would impact on food and farming standards. That is one of the reasons the National Farmers’ Union of Scotland has indicated that it would encourage support for the amendment.

I shall conclude by giving two compelling reasons why this amendment should commend itself to Parliament, and an equally good reason why it should appeal to the Government. While providing for the Trade and Agriculture Commission to make recommendations, the amendment gives a key role to Parliament to consider recommendations as well as to determine Motions on the Government’s response to them—so Parliament would have a direct role.

Secondly, the provisions in relation to the new trade treaties supplement the rather limited role given to Parliament under the Constitutional Reform and Governance Act 2010 in relation to the ratification of treaties. Both bring back more control to Parliament. As for the Government, the amendment would help them to secure their pledge set out on page 57 of their 2019 manifesto:

“In all of our trade negotiations, we will not compromise on our high environmental protection, animal welfare and food standards.”


It seems to me that this is a win-win situation all round.

[Lord Rooker (Lab) [V]]

My Lords, I am pleased to follow the noble and learned Lord, Lord Wallace, and particularly the noble Lord, Lord Curry, in supporting this amendment. Indeed, it is the only amendment tabled on Report which has my name attached to it. I shall be brief.

The point encapsulated in the last two speeches is very important. The National Farmers’ Union of England and Wales, the National Farmers’ Union of Scotland and the Ulster Farmers’ Union, which I worked very closely with when I was the farming Minister in Northern Ireland, all support this amendment. It is also supported by the CLA. That is incredibly widespread support that should enable the Minister to grab it with both hands. It cannot be anything but good for the Government to have the kind of support from the farming community that an amendment such as this carries.

Before I make my other comments, I want to respond to the noble Viscount, Lord Trenchard, who was kindly paying attention, or partly paying attention, to what I said in the previous debate. What I said was that in the United States of America, over 400 people a year die of salmonella. You can get the figures from the Centers for Disease Control. I did not say that they all died from eating chicken. What I also said was that nobody has died from this in the UK in the past 10 years. There may have been one case, but there was a dispute about it.

So it is not a question of looking at populations. The number of deaths in America is huge. Per head of population, food poisoning cases in the United States are 10 times higher than in Great Britain—although I did not go into that. People in America die from salmonella, but here it is not a cause of death. That is the difference, and the point I was making.

This amendment is very important for providing the checks and balances for what is a somewhat haphazard Government. I am not criticising the Minister or his team in this respect, or indeed the Bill team, but it is a haphazard Government, and this would provide checks and balances. The Government cannot rely on the existing structure. For example, I do not think that the Food Standards Agency is resourced or has the overall competence to get involved in the details of trade deals, as the proposed commission would. Of course, bodies such as the FSA and Food Standards Scotland would advise the commission, but the commission would have the main role.

It is also quite important that Amendment 101 not just involves but respects the primacy of Parliament, which Amendment 97 clearly does not. As I read that amendment, it seeks to give a veto over trade deals, and that cannot be right. I shall not recite the contents of Amendment 101, as that would be quite wrong. However, proposed new subsection (4)(d) in Amendment 101 is quite useful. In fact, I think that the Minister himself would probably quite like a list of the existing powers of the Minister, as it would be useful to know. Basically, we would like to know which powers they have got that they are not using. The powers are spread throughout a massive amount of legislation and it would be useful to have a list of them so that we could check which ones they are not using. Proposed new paragraph (f), which ties in with paragraph (c), would make the monitoring of imported foods—something that will not be easy—practical and workable.

We also have to remember that the EU does that for us now. The EU, on behalf of the member states, sends inspectors all over the world to check that farms and food factories are safe and of sufficient quality to supply the EU. We will have to repeat all that ourselves, and therefore it is very important that we have a system for monitoring the situation.

On the efficiency of UK agriculture—I am speaking from memory here—I think that the UK is so efficient in producing milk from dairy cattle that, if the rest of the world replicated our systems, there would be less than half the number of dairy cattle in the world. In other words, we are very efficient, and if we could spread that technology around the world, we would have fewer dairy cattle, less methane, less pollution and much more efficient production.

In short, on the idea of a standing rather than a temporary commission, a standing commission would consist of consumers, traders and producers, and it would instil far more confidence than the six-month commission that the Government have set up. The Minister and his team would be very wise to embrace Amendment 101.

Deregulation Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Tuesday 18th November 2014 Grand Committee

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

My Lords, I thank my noble friend Lord Sharkey for moving his amendment and allowing us to have this opportunity to discuss Clause 82 and Schedule 20, which provide for a number of legislative measures to be repealed or revoked. I am grateful to the noble Lords who have taken part. I get the general message and I hope that I can respond to the points that have been made.

The conditions that are proposed in my noble friend’s amendment would include the need for the Law Commissions of Scotland and of England and Wales—to report, before commencement, on whether or not the legislation to be removed still has a practical use. The amendment, as my noble friend would acknowledge, does not require the Law Commissions to undertake this work. Rather, it indicates that it would not be possible to move forward with regard to the repeal or removal of these provisions from the statute book until such time as the Law Commissions had reported on the legislation contained in Schedule 20. In the absence of any report from the Law Commissions, the obsolete law would simply remain on the statute book.

I hope that there is common ground in this Committee that it is a worthwhile objective to make the statute book simpler to use for practitioners and those in different walks of life when they run up against the law. It is better if it is easier to navigate for the end users of the law. My noble friend makes the point, which I agree with, that the Law Commissions do not have a political agenda. While it is true that many of the provisions in the schedule are a product of the Red Tape Challenge in the sense that they come from a political origin, the purpose of this is to repeal redundant legislation and legislation that is no longer of practical use. The selection of this particular obsolete legislative list may have had a political element in its origin, but in the end the purpose is to ensure that redundant legislation is not on the statute book. Again, I hope that that is a politically neutral statement to make and something that we can all subscribe to.

As my noble friend fairly observed, and as the noble Lord, Lord Rooker, acknowledged, there are clauses that caused considerable offence to the Joint Committee. The Government have accepted that particular recommendation. Those clauses that contained future order-making powers for pieces of legislation that were considered to be redundant were removed. The argument that was made by my noble friend and by the noble Lords, Lord Rooker and Lord Stevenson, would have had greater force if the Government were still trying to defend an order-making position. That is not the case. We took into account the evidence submitted during pre-legislative scrutiny and in the Joint Committee’s recommendations, and the Government removed this power from the Bill.

The origin of this amendment is, of course, that the Joint Committee also recommended that the various items contained in Schedule 16—I think it was at that time—should be referred to the Law Commissions for confirmation that they were indeed no longer of practical use. As has already been alluded to by my noble friend, the Government did not agree with this recommendation. However, I begin by pointing out that one of the main criticisms of the order-making power was that there was an inappropriate level of parliamentary scrutiny.

This schedule, both in the form that it is in today and in its original form, has gone through pre-legislative scrutiny. I hear what the noble Lord, Lord Rooker, says—that he did not think that it was an adequate or long enough opportunity—but it has had pre-legislative scrutiny and Parliament has considered the Bill up to this point, and no evidence has been brought forward that the items contained within it are not redundant. There is an important exception to that, which we are about to debate in the upcoming group of amendments in the names of the noble Lords, Lord Grantchester and Lord Trees, where there was an issue identified by those with a particular interest in dog breeding, and we as a Committee will have an opportunity to consider this.

As the noble Lord, Lord Rooker, said, the report and legislation that comes forward from the Law Commissions takes about three minutes of parliamentary time. This—particularly these provisions—has taken up far more than three minutes of parliamentary time. That is not the point that I wanted to make. It is not just that Parliament has had the opportunity; it is that—and we know this through all the work that we do in Parliament, not just in this Bill but in a whole host of Bills—we are informed in our debates by a whole host of outside bodies that are more than happy to give us the benefit of their experience, expertise and knowledge on these issues.

The noble Lord, Lord Stevenson, referred to paragraphs 14 and 15 regarding the Atomic Energy Act 1946. In the 31 years since I was first elected as a Member of Parliament, I have never known the nuclear industry to be backward in coming forward if it thought there was a problem with something that Parliament was about to propose. There was also a reference to paragraph 28, omitting Section 10 of the Sea Fish (Conservation) Act 1992, which requires that a report on the operation of the Act be laid before Parliament within the period of six months beginning 1 January 1997. Clearly that had to be done by 1997. Having represented for 24 years, both in the other place and in the Scottish Parliament, a constituency that had very strong fishing industry interests, I make the point that the fishing industry was never slow in coming forward either. It had very good people working for it who would spot important issues. With the exception of the amendment that we are about to come on to, in the whole time that these measures have been out there—since, I think, the summer of 2013—no interested bodies have come forward and said that these pieces of legislation still have a purpose and should be kept on the statute book.

I believe that good housekeeping of the statute book is good governance. When we bring forward legislation in the normal course of events, a Bill often has a schedule attached to it that will have repeals. They have never gone anywhere near the Law Commissions, unless it happens to be one of the Law Commissions Bills, which now use the fast-track procedure. It is quite usual for Bills to have a whole series of amendments and repeals because they are no longer going to be of any use, given the new legislation that is coming through. What we are doing here is bringing together a number that one might say were not picked up at the time when other pieces of legislation were brought forward. Nevertheless, Parliament has been invited to accept, as we do on many other occasions, that they will no longer be useful.

Although it is true that some of the pieces of primary legislation contained here are repeal candidates for one of the Law Commissions’ Statute Law (Repeals) Bills, I also make three particular points. The Law Commissions tend to focus their resources on certain themes for each repeals Bill. If a repeal candidate does not fit within the theme of a Bill, it is uncertain whether it would be accepted by the Law Commissions for inclusion. The Law Commissions confine their repeals work to primary legislation. A number of the paragraphs—I think that my noble friend said that there were eight—relate to secondary legislation, which has not historically been within the purview of the Law Commissions when they do repeals work. Although secondary legislation can be revoked using the parent Act, this Bill provides an ideal vehicle to revoke these regulations in an efficient manner.

Secondly, many of the provisions contained within the schedule came out of the Red Tape Challenge. The noble Lord, Lord Rooker, clearly made the point that none of these had in the past been referred to the Law Commissions. I do not think that we are running away from the fact that many of them do come out of the Red Tape Challenge. However, many of the themes were launched after the Law Commission for England and Wales invited submissions from government departments in June 2011 on what should be included in what was its last statute law repeals report, published in April 2012.

The next repeals Bill will not be introduced until 2016, and it is my understanding that the focus of the Law Commission’s repeals work will be on laws relating to overseas territories and churches. The Government do not see why the removal of redundant legislation should wait when the Bill that we have before us provides a legislative vehicle for doing so.

Finally, it is worth noting that government departments are key consultees for the Law Commission in seeking to make these kinds of repeals. As the Law Commission for England and Wales states on its website:

“Sometimes it is impossible to tell whether a provision is repealable without factual information that is not readily ascertainable without ‘inside’ knowledge of a Department or other organisation”.

I know that my noble friend said that the Government were answering a question that they were not asked but it is important to make it clear that this is not arbitrary work and that we have within the departments a considerable amount of expertise. One of the examples that was given in, I think, the response to the Joint Committee’s report is in this Bill. I think that it was one of the other clauses which drew the short straw in having to deal with part 1 of Schedule 6 to this Bill. It repeals the Deeds of Arrangement Act 1914 as part of a package of insolvency measures. Research, conducted by departmental lawyers, indicated that there was still one person who had a deed of arrangement under the 1914 Act, and a decision was made to include a special saving provision in paragraph 3 of Schedule 6.

The noble Lord, Lord Naseby, was not here to move his Amendment 90 but my noble friend Lord Sharkey referred to paragraph 40, which relates to Section 13 of the Defamation Act. I accept and acknowledge that it is not what I would call a redundant provision; it can be argued that it continues to have legal effect. However, the position is that it was a non-government amendment—one that was accepted by the Government due to a previous commitment to remove Section 13 of the Defamation Act when an ideal legislative opportunity presented itself. I think that, left to the Government’s own devices, it would not have appeared in Schedule 20, but that is where it was moved and that amendment was accepted by the House authorities as the case was made that it fitted within the scope of the Bill. That is why it finds itself here and I think that generally it is a provision that is much welcomed. In those circumstances, I invite my noble friend to withdraw his amendment.

[Lord Rooker]

What is the Minister’s answer to his noble friend Lord Skelmersdale?

[Lord Wallace of Tankerness]

I do not think that there is a perfect answer to the earliest one being in the 19th century. If the purpose of this is to try to remove redundant legislation, it can be redundant if it no longer serves any useful purpose. An example is the Sea Fish (Conservation) Act 1992, which is very recent—indeed, I remember taking part in the debates on the Bill that became that Act in the other place. But the purpose of this provision is to remove from the statute book measures which, for example, may have expired or served their purpose, which have been superseded by other legislation or which are simply no longer relevant because they relate to an activity that no longer takes place. I accept that flying kites still takes place, but it takes place in a legitimate way. The fact that there was no provision identified prior to the 19th century I do not think in any way detracts from the ones which have been included, which I would certainly argue that Parliament has had a proper opportunity to consider.

--- Later in debate ---

[Lord Rooker]

I have one last, general question on this, which comes as a result of listening to these last two debates. Can the Minister give a commitment that the Government will not bring any new material forward for Schedule 20 at further stages of the Bill?

[Lord Wallace of Tankerness]

As I am not the Minister in charge of the Bill, I am not sure I can give that commitment and am wary of doing it, having just invited the noble Lord, Lord Skelmersdale, perhaps to suggest candidates—although I did qualify that invitation by saying that he should give plenty of time so they could be properly looked at and considered.

[Lord Wallace of Tankerness]

I am advised that it is not the Government’s intention to bring forward further pieces of legislation into this. We take heed of the warning that the noble Lord, Lord Rooker, has very effectively delivered.

[Lord Rooker]

It is not a warning; it is just the fact that it is quite clear that people inside the government machine—I do not blame them—are now looking at what is going to be changing in the future that will make legislation redundant before the action takes place. This is a very suitable vehicle for piling other stuff in, which is clearly the implication of what we have just heard about dog chipping. It is something that is coming in the future that will require this change—here is a nice vehicle. I just wonder what else is around. It would be very unwise from a parliamentary scrutiny point of view.

[Lord Wallace of Tankerness]

The noble Lord’s point is well understood.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Wednesday 15th January 2014 Lords Chamber

[Lord Wallace of Tankerness]

That is indeed what I had in mind. Time may be short, but I think that we can have some useful engagement on that.

Government Amendment 43 excludes the costs associated with providing protection of persons or property in relation to a public rally or event. While the Government believe that it is important that third parties who organise public rallies or events which seek to influence voting intentions incur controlled expenditure, it is only right that third parties do not incur controlled expenditure ensuring that such events are run safely.

Government Amendment 44 excludes expenses that are reasonably attributable to a person’s disability. This would mean that costs associated with, for example, providing materials in Braille, or ensuring that any person with a disability could attend a public event or meeting, would not count towards the third party’s controlled expenditure.

Government Amendment 42 provides that parades notified under the Public Processions (Northern Ireland) Act 1998 are excluded from the provisions of PPERA. Your Lordships will recall that we had a debate in Committee on Northern Ireland. Although the particular issue of parades was not raised, we were aware that it was a concern that some people had expressed. The noble Lord, Lord Rooker, led an important and helpful debate on Northern Ireland, and we seek to address it here.

Government Amendment 38 amends the defence, currently in the Bill, for a person or third party charged with an offence of incurring controlled expenditure in excess of the spending limit—that is, above the limit in a part of the UK or the constituency limit—to show that they complied with the relevant code of practice so that it covers both recognised and non-recognised third parties. The amendment is needed to reflect the changes to the reporting requirements in a later government amendment which provides for no spending return if the threshold is not reached. We have since identified a couple of points not properly dealt with in the amendment. The first is that the defence does not adequately cover the case where an offence might be committed by virtue of expenditure incurred on behalf of the third party. Secondly, the defence should also cover the offence in relation to targeted expenditure. We think that it is important in both these cases that those subject to regulation should have the benefit of the defence and we will therefore bring forward amendments at Third Reading to deal with these outstanding anomalies.

Government Amendment 41 clarifies the drafting on public rallies, so that it is “public rallies or events” to be inserted by Amendment 42. The reference to “public meetings” is removed, as it was unnecessary and potentially confusing because “other public events” includes public meetings.

I turn to the amendment moved by the noble and reverend Lord, Lord Harries of Pentregarth, and a number of other amendments that have been spoken to in this group. Amendment 34 would amend Clause 26 so that any campaign which could reasonably be regarded as intended to promote or procure electoral success, involving legislation going through Parliament during the regulated period, would not count as controlled expenditure. I listened carefully to the speech made by my noble friend and agree with him that we should not pass legislation which inhibits expression of legitimate opinion.

To incur controlled expenditure and be included in the regulatory regime, it is important to remind ourselves that the third party must be carrying out activity which could reasonably be regarded as intended to promote or procure the electoral success of a party or a group of candidates. We have heard concerns that campaigns against specific policies or pieces of legislation will be caught by the regulation. It might assist the House if I set out how, generally, this will not be the case and the circumstances in which it might be. The noble Baroness, Lady Mallalieu, asked whether we would meet the Electoral Commission. I can tell her that this issue has been raised with us. We have been in discussion with the Electoral Commission and I can confirm that it agrees with this interpretation.

If a campaign group wished to lobby parliamentarians over legislation going through the House, this would not be subject to regulation under Part 2. It is only where the expenditure by a campaign group can reasonably—that is, objectively—be regarded as intended to promote or procure the electoral success of a party or candidates that such activity will be subject to regulation. For example, encouraging constituents not to vote for MPs in the general election if they had voted a certain way on the legislation before Parliament should and would be included as activity leading to controlled expenditure. If a group so closely aligns itself with a policy of a particular party that its campaigning on behalf of that policy can only reasonably be seen as encouraging support for that party, that would also count. That is campaign activity, and where it takes place the Government believe that spending on it should be transparent to the public.

The noble and right reverend Lord, Lord Harries, gave a good example when he talked about new towns. We believe that under his example, people will be able to support or oppose such a proposition freely. It would be caught only if they promoted electoral success, for example, by distributing leaflets reading, “Don’t vote for candidate X”—or X party—“at the next election”, because he or she had supported or opposed the new town. The amendment states,

“unless the expenditure relates to legislation before Parliament during the regulated period”.

If Parliament were to accept that definition, it would really open the door to any amount of expenditure. My noble friend Lord Horam suggested a limit of £300,000; in fact, it would not be controlled expenditure, it would be unlimited expenditure in the run-up to an election which could be directed against or for a particular party. Given that there are restrictions on what the political parties can spend during that period, it is not reasonable that there should be such a wide gap in the provisions that an unlimited amount of expenditure could be related to a particular campaign.

I reiterate that the general position is that if a campaign group wishes to lobby Parliament and parliamentarians over legislation, that is primarily directed at trying to change legislation and would not be subject to regulation under Part 2. As my noble friend Lord Horam said, we are seeking a balance, allowing proper room to campaign but not to swamp.

I also highlight that the Electoral Commission does not support this amendment. It states that such an exemption would allow unlimited spending on a potentially wide range of topics. It believes that it could produce significant and unintended gaps in the coverage of the rules. The issue of the year up to the campaign was raised generally in the debate. Of course, a later amendment will mean that this is actually only a seven-and-a-half-month period. Clearly, if, as a result of experience, people feel that the guidance has not been sufficiently helpful, as we have provided in later amendments, there will be a review post the 2015 election. The amendment as it stands opens up a considerable gap and would lead to an imbalance whereas, as my noble friend said, we should be seeking a balance.

On Amendment 40, my noble friend Lord Tyler seeks to amend Schedule 3 so that costs associated with sending materials to committed supporters who have been actively involved in the activity of the third party would be excluded from the calculation of costs for controlled expenditure. Costs of sending material to members or certain supporters are already excluded, as PPERA and the Bill make clear. The material or activity must be available or open to the “public”, which for these purposes would not include those members or supporters.

As the existing Electoral Commission guidance makes clear, the exact nature of a committed supporter will vary between organisations, but could include regular donors by direct debit, people with an annual subscription or people who are actively involved in the third party. The amendment goes much further than that. Amendment 40 defines those actively involved as those who have made a donation to the recognised third party, or those who have made a direct communication to the recognised third party in the past 12 months.

Consequently, an individual who writes to a campaign organisation with a general inquiry about their activities, or even one who lives next to an animal sanctuary who writes to them complaining about the noise, might possibly be regarded as being actively involved. I do not believe that that is my noble friend’s intention, but I fear that using that definition allows the provision to become ineffective, particularly in an age of instant electronic communication.

The Electoral Commission does not consider people to be committed supporters if they have simply signed up to social networking sites or tools, or appear on mailing lists that may have been compiled for general commercial, campaigning or other purposes. An exclusion of costs, based on direct communications with third parties—whatever the nature of that communication—creates a wide exemption.

I know that my noble friend has worked hard and has met officials to try to resolve this; I regret, however, that we fear the definition he has come up with is too wide. We believe that the better way is that the Government and the Electoral Commission believe that the Electoral Commission’s guidance is the proper place to outline who counts as a committed supporter. In its briefing the commission outlined that it does not support this amendment due to the fact that it is unclear what scale of campaigning would be exempted from the regime or how the test would apply in practice.

Finally, my noble friend referred to Amendment 45A to ensure that any changes to the range of activities outlined in new Schedule 8A would be made through an affirmative resolution procedure. That is already the case in the Bill as drafted. I draw noble Lords’ attention to Clause 26(12), which amends Section 156 of PPERA so that any order under new Schedule 8A, as inserted by Schedule 3 to the Bill, is by affirmative resolution. It does so by amending the existing section of PPERA, setting out what parliamentary procedure applies to orders and regulations. The Government agree that it is important that any changes to the list of activities that incur controlled expenditure should be subject to the affirmative resolution procedure.

I hope that that reassures my noble friend. In the light of the explanations given, I hope that the noble and right reverend Lord, Lord Harries, is prepared to withdraw his amendment.

[Lord Rooker (Lab)]

I have thought of a question while the Minister has been speaking, which is not in any way diversionary. It ties in with the comments made earlier about what would happen if, in this period of a year, a Government sought quite deliberately to save legislation. The Minister answered the point about legislation in Parliament, but there are highly controversial matters outside Parliament; people do newspaper adverts and all kinds of things. I have been thinking about this question, having gone through paperwork recently. When we get close to an election, the Cabinet Secretary and the head of the Civil Service will issue an edict around Government to Ministers and departments about what you can do and what you cannot do in that period. Is that going to change now that we have a fixed-term Parliament, with this window and this picture of a much larger window?

This is not purdah, but an extended period in which other people are constrained about what they can say and do. Will the advice that normally comes out close to an election from the Civil Service to Ministers actually change and take account of what is being done in this legislation?

[Lord Wallace of Tankerness]

My Lords, I always know it to be dangerous when the noble Lord stands up and says he has been thinking about something—and so it was.

I took the fixed-term Parliament legislation through your Lordships’ House and I do not recall—nor, indeed, have I seen at the present time—anything that suggests there is going to be any change. Of course, that means that there still will be a period during which Governments are not allowed to do this; but I have not seen any proposal to reflect the fact that there is a fixed-term Parliament. When that period will arise will become more apparent, or more foreseeable. If I have got that wrong, although I do not think I have, I will inform the noble Lord.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Monday 16th December 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I think this is at the heart of much of this debate. As the noble Baroness, Lady Royall said, if the activity being undertaken included extensive polling, the purpose of which was to get a Government to act in a particular way, and one applied a test of,

“reasonably be regarded as intended to promote or procure electoral success”,

of a party or candidates, I do not think that it could be interpreted in that way, unless one had a very vivid imagination. It is a leap to see activity that is clearly directed towards trying to address or change government policy as being intended to procure the election of a particular candidate.

As I said in my opening remarks, there is quite an onus on the Electoral Commission and the guidance it has given. It has given guidance on this in two previous elections without any apparent problems; I think we will return to this issue more fully in the next group of amendments. It is stretching things quite some distance to think that what is actually the perfectly legitimate purpose of an organisation, to campaign on issues relating to establishing provisions to be included in a Bill of Rights, can be seen as an intent,

“to promote or procure electoral success”,

of a particular party or candidate.

[Lord Rooker]

My Lords, I am very grateful for the contributions. As I said, I am no expert on this but I know enough from my own experience to know that we are on thin ice.

To deal with the last point first, as the noble and right reverend Lord, Lord Harries, said, the whole point is that the parties make it a political issue, not the groups. Let us be clear about this. Having read my original ministerial briefing, I will be mindful of the language I use, but let us face it: Section 75 of the Northern Ireland Act 1998 would not have been put on the statute book by a majority Government in Northern Ireland. That is a fact. But that legislation operates the pressure on all the parties in Northern Ireland to have transparency.

I saw things in Northern Ireland that you do not see in annual reports that are published in England and Wales and Scotland, which we get from the Printed Paper Office, such as an analysis of the religious make-up of participants, because they are checking the Equality Act. The Equality Unit there takes it really seriously, but it is not that unit that makes it party political; it is open to a party to say, “Hang on a minute, we’ll show our true colours: we are not in favour of this right”. Automatically it becomes a partisan issue, and that is where the danger lies. But that point has been made.

I fully accept the point made by the noble Lord, Lord Horam: there are other ways of dealing with this. This is a black-and-white issue of taking Northern Ireland out of Part 2. There has to be another way of taking account of the situation in Northern Ireland. I genuinely think that we have to take account of a situation that is different from that in the rest of the United Kingdom.

I also want to say on the record that nothing I have said or implied is in any way a criticism of the power-sharing Executive in Northern Ireland. I think they have done a fantastic job. I once sat in the Public Gallery in Northern Ireland during my time as chair of the Food Standards Agency, because it is a UK body. I watched Question Time and almost had tears in my eyes. It was a pretty rubbishy Question Time but it was there, across the Floor of a Chamber, using words to fight each other and not weapons, and that is the way of the future. We want to make sure the fragility is strengthened, not weakened.

I fully admit I had never set foot on the island of Ireland until I went there as a Minister but the Northern Ireland Office today cannot be the same as it was before devolution. It was unique in Whitehall. The political director was one of the most senior civil servants. The last one became the Permanent Secretary. They had fingers on things that did not happen in other departments. I would like to know that the equivalent of the political director in the Northern Ireland Office today is satisfied with this process in this Bill. I am concerned that those who know about the nuances and the organisation to make these things work are comfortable with it. I would certainly like to have a note on that before Report or a Statement from Government.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Wednesday 16th February 2011 Lords Chamber

[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.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Monday 14th February 2011 Lords Chamber

[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.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Tuesday 8th February 2011 Lords Chamber

[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.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Monday 7th February 2011 Lords Chamber

[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 Rooker]

Amendment 10B should have been linked to this.

[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.

--- Later in debate ---

[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—

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Monday 7th February 2011 Lords Chamber

[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—

[Lord Rooker]

I am happy not to move the amendment.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Wednesday 19th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

I cannot give a technical answer, but I can say that they are produced by the Office for National Statistics at the local authority level and that they are estimates of change. I do not have the psephological—I am sorry, I meant the statistical—basis for this.

[Lord Rooker]

The Office of Population Censuses and Surveys used to do the same job and was the guardian of data on births, marriages and deaths by geographical area. To my certain knowledge, it used that data in Birmingham to update the figures. The health authority used those OPCS figures for births, marriages and deaths. It did not track the population, but it had a base of information that could be used for an annual update. That is what I recall.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Wednesday 12th January 2011 Lords Chamber

[Lord Wallace of Tankerness]

If my memory serves me correctly, when I responded to the noble Lord on Monday I mentioned the concern about the Data Protection Act. I have checked, and we will do a further check in the light of that point, but the information that I have had since we had that exchange on Monday is that the Department for Education’s national pupil database would be one of the data sets that we would consider.

I say to the noble and learned Lord, Lord Falconer, who asked what we are doing, that a series of events will be planned over the next few months as part of the introduction of individual registration, when we will consider with stakeholders what further steps can be taken to engage with groups who are underrepresented on the electoral register. However, we must proceed with a boundary review to ensure that boundaries, in England in particular, are not 15 years out of date at the next general election, thereby missing out those who have registered in the past 12 months, because that would exacerbate the inequality. To achieve that, with due time for the commission to consult widely, we must allow it to get on with its task now. That in no way diminishes the importance of registration, and I hope that I have indicated to the satisfaction of Members across the House what we are trying to do to establish that.

[Lord Rooker]

Is there not a big society point here? I genuinely think that the best people to get young people registered are young people—not local government officials, not Members of Parliament. Local authorities will be strapped for resources anyway; we understand the reason for that. Is there not a case for requiring local authorities, because they are in charge of the register, to pull together a group of young people charged with seeing that other young people get on the register? Out there, with homelessness and unemployment, the best evidence is that young people who are trained as mentors are much better at mentoring young people on a range of issues. It is a big society point; I freely admit that. Thinking about it and listening to the debate, I think that we must make more use of young people themselves and not do it top-down. That is just a thought.

[Lord Wallace of Tankerness]

I have no hesitation in welcoming such a proposal. It does not run counter to the other data matching that we are proposing or the roadshows on individual registration. I am sure that the very constructive suggestion by the noble Lord, Lord Rooker, will be taken into account.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Monday 20th December 2010 Lords Chamber

[Lord Rooker]

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

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

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

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

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

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

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

Parliamentary Voting System and Constituencies Bill

Debate between Lord Wallace of Tankerness and Lord Rooker

Monday 13th December 2010 Lords Chamber

[Lord Rooker]

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

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

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

“are not held on the same day”.

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

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

[Lord Wallace of Tankerness]

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

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

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