Parliamentary Voting System and Constituencies Bill

Lord Anderson of Swansea Excerpts

Tuesday 1st February 2011 Lords Chamber

[Lord Davies of Stamford]

I hope that I did not give the impression that I had concluded my remarks. Of course I shall give way in a moment to the noble Lord, Lord Low, with great pleasure but I suspect he wishes to speak to his amendment and perhaps the right time to do that will be when I have concluded my remarks, which will not be very lengthy.

Just before I leave the issue of the Electoral Commission, I have to respond to the Leader of the House. Those of us with a background in the private sector know that when you move offices and no longer answer your telephone you go out of business very quickly, and I do not think that that is a very satisfactory excuse coming from a public sector body either.

I very much support both my noble friends Lord Rooker and Lord Lipsey in the amendments they put forward and the initiatives they have taken, although I have a number of reservations about the wording of one amendment of the noble Lord, Lord Lipsey, which I shall come to in a moment. I think they must have had the same reaction as I did when I read the Bill. There is a rather marked antithesis, and a slightly disturbing one, between paragraph 9(1) of Schedule 1:

“The Electoral Commission must take whatever steps they think appropriate to promote public awareness about the referendum and how to vote in it”,

and paragraph 9(2), which then states:

“The Electoral Commission may take whatever steps they think appropriate to provide, for persons entitled to vote in the referendum, information about each of the two voting systems referred to in the referendum question”.

Particularly coming straight after “must”, “may” reads very weakly—it seems almost a sort of casual afterthought—and I do not think that is good enough. If we are to have a referendum in this country on quite a complex new constitutional issue, it is absolutely essential that members of the public have the opportunity to understand what it is all about. I therefore think it very reasonable that we should say “must” in paragraph 9(2) which, of course, is the effect of the amendment of my noble friend Lord Rooker.

I very much agree with my noble friend Lord Lipsey that it is right to produce a pamphlet on the subject. As one of his own amendments states, the information effort should include the publication of a pamphlet and does not exclude other things. I hope that the Electoral Commission will have a budget which can indeed be used, as the noble Lord, Lord Martin, has suggested, for television coverage of the issue as well, or even possibly local radio, as he suggested. That is highly desirable.

I have to say, however, that my breath was slightly taken away by the phrase in the third sentence of my noble friend Lord Lipsey’s Amendment 110ZZA:

“The leaflet shall be impartial and unbiased”.

I found myself reading that two or three times and thinking carefully whether a leaflet could be “impartial and unbiased”—indeed, whether any opinion of this kind could be “impartial and unbiased”. Of course, as a practical issue, we regularly expect certain people and certain functions to be impartial and unbiased—judges and juries would be an obvious example. However, they are being impartial and unbiased in relation to the establishment of a fact: whether so-and-so killed the victim or whether so-and-so stole the goods is a matter of fact. Here, we are asking for the production of an impartial and unbiased opinion—

[Lord Anderson of Swansea]

Is it not a fact also that, when a jury comes to its determination, it has had the points for and the points against put not by some impartial body but by counsel for the prosecution before counsel for the defence? Therefore, maybe the two sides of this argument should set out the case themselves.

[Lord Davies of Stamford]

I do not know whether I should be grateful for my noble friend’s intervention or not. I totally agree with him on the one hand, but on the other he has just taken away the point I was about to make myself. I was hoping I was going to be the first in the debate to raise those particular solutions. However, he is perfectly right and I think, before the House accepts the words that would actually go in the Bill, it needs to think very carefully about putting a responsibility on any human being or set of human beings to produce an opinion on something which is impartial and unbiased.

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[Lord Low of Dalston]

My Lords, I apologise to the noble Lord, Lord Davies. I did not mean to interrupt him. I thought that he had got to the end of his remarks. Indeed, I am extremely grateful that he continued because I thought that, before he moved to the outer reaches of philosophy, he made a very strong point when he referred to the sharp antithesis between “must” and “may” in the clause. I thought that that point lent considerable additional weight to Amendment 108, moved by the noble Lord, Lord Rooker. I got a bit more worried as the speech by the noble Lord, Lord Davies, continued because I was getting a message from my BrailleNote here that the battery was about to run out. I think there is just enough left for me to say that I rise briefly in support of this group of amendments. Amendment 109 is in my name and is substantially to the same effect as Amendment 108, moved by the noble Lord, Lord Rooker. Both require the Electoral Commission to provide information about each of the voting systems referred to in the referendum question. In conjunction with Amendment 110, which we discussed last night, these amendments place on the Electoral Commission a duty to take steps to ensure that disabled voters are able to access information and support to facilitate their understanding and participation in voting and elections.

I also welcome Amendment 110ZZA, moved by the noble Lord, Lord Lipsey. All I would say is that steps need to be taken to ensure that the leaflet referred to in the amendment is made accessible to people who have difficulty in reading print. For example, the leaflet would need to advertise on it—in at least 14-point type, I would hope—the availability of other formats such as large print, Braille and audio, and a number to call to request these formats. Furthermore, alternative formats would have to be available at the same time as the print version, otherwise people who cannot read print would be put at a disadvantage compared to those who are able to read the printed leaflet.

On Amendment 110ZZB, the requirement to seek the advice of the Plain English Campaign on information materials, although it might strike a blow at the legal profession, seems a sensible suggestion considering the complexity of explaining the rival voting systems and it could certainly help in making the material accessible to people with learning disabilities, who may have need of an EasyRead version. Therefore I support all the amendments in this group.

[Lord Anderson of Swansea]

My Lords, I follow the noble Lord, Lord Low, who has been a great champion of those with disabilities in the House. He shows some of the reasons for this House in the way in which he is able to contribute. I should like to say briefly how much I agree with what my noble friend Lord Davies has said. We have had many allusions in the debate, often in the small reaches of the morning, but I do not think that Hegel and—was it Nietzsche?

[Lord Davies of Stamford]

It was Heidegger.

[Lord Anderson of Swansea]

I do not think that Hegel and Heidegger have been alluded to so far. However, following that philosophic allusion, I wonder whether one might follow the Marxist dialectic and have a thesis, an antithesis and a synthesis. If there were two umbrella organisations, we would have to give thought as to who would compose these arguments on both sides of the divide; and this assumes that there are people who are acceptable and that there are relevant umbrella organisations. This will probably be the case, even though there may be differences within those umbrella organisations. If there are such organisations, it may be that they would have to submit, in draft, their proposals to the Electoral Commission, which could ensure that they are broadly acceptable.

Let me come first to the synthesis and then I shall give way to my noble friend. The Electoral Commission itself, having looked at the thesis and the antithesis, in the normal direct way, can then come forward with its synthesis of those areas which it thinks are of importance for the voter and which have not been touched on by the protagonists.

[Lord Davies of Stamford]

I am grateful to my noble friend for giving way. My concept was that the individual elector would provide his or her own synthesis from the materials provided by the two campaigns. I totally agree with my noble friend, from a practical standpoint, that my suggestion will not work unless there are two clear campaigns run by some accepted umbrella organisation. It would, of course, be for the Electoral Commission to satisfy itself that those two campaigns were generally national umbrella organisations, accepted by all the groups within each particular side of the campaign. That worked in 1975, as my noble friend, who was also alive at the time, will recall, but it would not work if there were just a whole lot of different groups and multifarious and multifaceted voices of various kinds on both sides. That would be a very untidy and very difficult campaign. I hope that the rather more clear-cut choice, which the public were offered in 1975 on another important constitutional issue, could be replicated. It would be for the Electoral Commission to decide that point.

[Lord Anderson of Swansea]

My noble friend’s thesis assumes that there are people who are prepared to be in an umbrella organisation for the alternative vote. The problem is that no one actually favours the alternative vote.

[Lord Davies of Stamford]

Mr Clegg?

[Lord Anderson of Swansea]

In God-like isolation, he may well. I suspect that even Mr Clegg, if it is before three o'clock in the afternoon, may well reach the view that he prefers other systems. There is a variety of systems and it is clear that the alternative vote is a totally orphan system. Certainly, the Conservative Party does not favour it. On the whole, it prefers the first past the post system. At the time of the last election, the Labour Party did, but clearly the public—

[Lord Tyler]

I wonder whether the noble Lord is aware that the leader of his party supports AV.

[Lord Anderson of Swansea]

That just shows the interesting way in which there are many rather odd bedfellows. If people were given an absolute choice, I do not think that they would put that first on their list. Certainly Mr Clegg would prefer another system; Mr Cameron would prefer another system; and, although I have not spoken to the leader of my party on this, or indeed on any other matter, I suspect that he also would prefer another system. So we come to the point that no one would presumably claim support for the alternative vote. I can imagine, on the other hand, a whole series of problems because if there were to be an umbrella organisation against the alternative vote, it would be a ragbag of views. There would be a great variety of views in that. To have a legitimate group on either side of the argument will prove extraordinarily difficult. Let us assume that eventually one can fund a group, an umbrella organisation, on both sides. Clearly, some of the arguments are likely to be omitted, hence the reason for the Electoral Commission to vet those drafts which have been put out by the other organisations. In seeking to be impartial, in seeking to reconcile and in seeking to bridge that gap and to be a Marxist synthesis following Hegel and Heidegger, clearly the Electoral Commission itself may have to play that role and seek to put forward a more objective middle way to the two groups if they can be found to work together.

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[Lord Pannick]

That is information about the detail of the competing voting systems which are under discussion in the referendum. It is one thing to say to the Electoral Commission, “You must tell people about the existence of the referendum, their right to vote, and when it is going to take place”. That is perfectly sensible and it must do that.

[Lord Anderson of Swansea]

I heard the noble Lord submit that the discretion of the Electoral Commission on whether to give information by way of an information pamphlet will depend—or should depend—on how much information is available from other sources. How will it know, in a timely manner, how much information will be available from other sources? Clearly the other sources could include the umbrella organisations; they could include newspapers which, no doubt, will take sides during the campaign. If the Electoral Commission is to publish a leaflet, it must surely know in very good time how much information is to be provided from other sources.

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[Lord Grocott]

My Lords, I of course know that this Committee stage has to finish tomorrow and I am therefore reluctant to make a contribution. However, I am aware of the fact that this is the only opportunity we have had so far to discuss this hugely important issue of the kind of information that the voters will receive and how they will be able to obtain impartial information, if such a thing exists. This is against the background—I assume we all know and can agree on this—that there is absolutely no resonance whatsoever, anywhere in the United Kingdom, about the issues that will be raised in this referendum. The public are either not interested, which I think is almost certainly the case—

[Lord Anderson of Swansea]

My noble friend is a very experienced parliamentarian, one who knows the grass roots and has campaigned on many occasions. Can he indicate to the Committee whether he believes that there will be door-to-door canvassing on this campaign? How many people will be sufficiently enthused by this issue to go out from door to door? How many public meetings are likely to be held on both sides? Does he see any prospect of people being so interested in this question that they will indeed do that sort of leg work, which is a feature of our elections?

[Lord Grocott]

No, I do not see any real prospect of that happening on any big scale at all and that should be a real concern to all of us. As someone who will be as active as I possibly can be in the no campaign, I am aware of the big disadvantage that the no campaign has, which is that everyone in the country at least knows something about first past the post but next to no one can answer serious questions about the mechanism of this particular form of the alternative vote system. That is why any impartial leaflet trying to tell the public about a system for which there is no evidence they know a great deal about must include the information as to where this is used. If it was not used anywhere in the world, presumably that is a valid factual piece of information to give to the electorate.

I am aware of the time, but I want to spell a point out and get a grievance off my shoulder. One must not bear a grudge, but I am still smarting under the advice that the Electoral Commission gave indirectly to the House, as it went to all Members of the House, when it was commenting on the various amendments as they were going through. The House may not remember Amendment 40B in my name but I do. It was a very simple amendment to allow the results of the referendum to be published constituency by constituency. It was a very simple proposal and I am sorry to say the House rejected it. I am not going to go into the merits of it but I simply want to make this point: in advance of the vote, the Electoral Commission, whose job it is under this legislation to provide information, made a mistake—believe me, the Electoral Commission can make mistakes —in respect of the advice it gave on my amendment.

As I said, my amendment was about publishing the constituency results. The commission said:

“We do not support this amendment … making such a significant change to the rules for the referendum this close to 5 May”.

In other words, it was assuming that the referendum had to be held on 5 May, which is a contentious piece of information to begin with. That is a date chosen by the Government, and the Electoral Commission is not necessarily obliged to give information which helps the Government to achieve this contentious advice as to when the date should be held. More seriously, and perhaps more factually, this piece of information came to the House after the amendment of my noble friend Lord Rooker, giving flexibility as to the date, had been approved by the House. So the referendum, according to the Bill as it then stood, did not have to take place on 5 May; in fact, it could take place any time between 5 May and some time in October, and that is the Bill as it stands.

I do not dispute for a minute the good intentions of the Electoral Commission but it was at the least a contentious piece of advice to Members taking part in that debate. If on a fairly straightforward, simple proposal like that it could be contentious then I would suggest that, for anything that tried to explain how various electoral systems worked and the merits thereof, it would be almost impossible to get a non-contentious document out to the voters.

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[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.

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[Lord Mackay of Clashfern]

My Lords, first, I support the principle behind the amendment that the noble Lord, Lord Phillips of Sudbury, has moved. The arrangements as set out in the schedule are somewhat ambiguous. His amendment is one way, at least, of clarifying that. There may be other, better ways, for all I know, but certainly these arrangements need to be clarified. I strongly support the view behind the amendment of the noble Lord, Lord Lipsey—that the situation in the last election, where people who came and were there before 10 pm could not, because of the law, be given ballot papers, was absolutely disgraceful. Whatever the reason, on the night the lady from the Electoral Commission who spoke did not appear to me to have grasped exactly what the situation was. She said that it had given clear instructions that the ballot papers were not to be handed out after 10 pm. It suggests to me—and I do not know what the right answer to it is—that some flexibility is required to deal with special circumstances. The people who are running the different polling stations may not necessarily be the top brass of the arrangements, but some kind of discretion must be given, because that kind of thing can happen. I do not expect for a minute that anybody realised exactly what was happening until it was really too late, and then they had this terrific sledgehammer of “You cannot issue a ballot paper after 10 pm”; witness what the Electoral Commission had said. In a sense it made the matter worse. I do not say that the people in the polling booth could have given them out after 10 pm, although I think if I was in a polling booth and in charge as a clerk I would have had a shot at that.

It is important that this matter should be sorted out one way or another. If the Government do not think that the Electoral Commission solution is the best, then let us have one. We need a solution. I agree, of course, that it needs to be a solution that applies to all elections—not just the referendum—although, unfortunately, I do not think that that could be done in this Bill. We are trying to do enough already. We cannot sort the whole thing out, but it is certainly important to sort it out. A very short Bill that would not take the time that this one has taken could go through both Houses and sort this out in good time for 5 May.

[Lord Anderson of Swansea]

My Lords, I follow the noble and learned Lord, Lord Mackay, when he says that he agrees with the intention of both these amendments. It may well be that the wording can be improved—and it probably can—but there will be general approval for the intention. I also begin by welcoming the contribution of the noble Lord, Lord Phillips, and indeed that of the noble Lord, Lord Rennard. Someone mentioned the vow of omerta. When we had a Liberal Democrat intervention in an area of policy which in many ways they have taken as their own, I was reminded rather more of the brave Horatius at the bridge:

“And even the ranks of Tuscany

Could scarce forbear to cheer”.

The noble Lord, Lord Phillips, mentioned the question of facilitation. This is clearly a possible problem because there will be a number of right hands and a number of left hands. It is important that this be a key role—even if the actual wording is not wholly appropriate.

I was puzzled by another matter in this same section. In paragraph 10(1), we are told that:

“The Chief Counting Officer must take whatever steps the officer thinks appropriate”.

At the end, in paragraph 10(5), we are told that:

“The Minister may reimburse any expenditure incurred by an officer for the purposes of sub-paragraph (1) or (2)”

On the face of it, this gives an unlimited expenditure for the worthy objects of this paragraph and goes against all the normal government policies of being frightened and hesitant about open-ended commitments. It is wholly unlimited. One’s mind boggles at what, in following up this worthy objective, a very zealous officer may wish to do. So I simply commend to the Government—

[Lord Phillips of Sudbury]

The key word that the noble Lord quoted is “may”. It gives a discretion to the Government as to what they reimburse, so the matter is not as open as he thinks.

[Lord Anderson of Swansea]

That is one way of seeking to limit the zeal of any particular officer. It may well be that there should be written into the clause some test of reasonableness or otherwise, but we have to have some limit.

The final comment I would like to make on the amendment is on the point made by my noble friend Lord Lipsey, which was supported by the noble and learned Lord, Lord Mackay of Clashfern. I had the privilege of being an observer, or monitor, at both the South African election in 1994 and the first free election in Namibia in 1989. What amazed me at the time was that many people who had not had the opportunity before—those who were non-white—had such enthusiasm to get to the ballot box. I recall seeing young men carrying their aged mothers on their shoulders to get to that ballot box. I recall the long queues of people waiting to vote. All of those, in fact, who were in the tent at the relevant time, were allowed to vote. For any democrat it was a wonderfully emotional and uplifting moment.

As the noble and learned Lord, Lord Mackay, has just said, it was very different when we saw the people who had been excluded from voting at the time of the last election. As a democrat, I was extremely happy to see the display of real anger on the part of those who were excluded. We wait with interest to see how the Electoral Commission will respond, but surely it is not beyond the wit of man, or woman either, to give out cards to those waiting in the queue at 10 pm to enable those who have made the effort to vote on time to do so. Indeed, everything must be done to encourage people to vote. Someone who is turned away at the last moment because there is a queue may, in the future, join the ranks of those who do not vote. Let us look very carefully at this in order to encourage democracy.

[Lord Maxton]

My Lords, as someone who takes an interest in the field of IT and new technologies, I have to say that the idea that we still vote by putting a cross on a piece of paper, having had to travel somewhere to actually put that paper into a box, appals me. I would not dream of booking a holiday or anything else in any way other than online through my computer and paying with a bank card. There is some security risk, maybe, but not very much, yet we still have this absurd system for voting. But, of course, almost the first thing this Government did was to abolish the one way we could have had electronic voting by getting rid of the rather small system of ID cards that we were introducing. If we had ID cards, we would not have any of this bother.

This real point is this. My noble friend is right at one level to say that in Scotland we are going to have two ballot papers presented to us—but we are not because we are going to have three of them. There will be one using the first past the post system to elect the Member for the constituency, and a second paper giving a list of parties to elect. That, by the way, raises the point made earlier by my noble friend Lord Rooker about where you stand on the ballot paper. In my view, it is almost certain that Alex Salmond is the First Minister of Scotland because he made sure, when using the list system, that he was listed as “Alex Salmond for First Minister” rather than “SNP”. He was at the top of the list and probably got just about enough votes to make sure he won the election.

We are now to have the AV paper to contend with as well, and some people will find it difficult. The referendum is very important, but a problem that may arise is that some people in Scotland will decide that the Scottish elections are considerably more important than the referendum for AV. After all, the Scottish Parliament deals with the education system, housing and all the social issues that affect people’s lives. They may say, “I can’t be bothered with the referendum paper. I will deal with the Scottish Parliament ones”. If the turnout for the AV referendum is smaller than it is for the Scottish Parliament, that will begin to cast doubts on the referendum itself.