Parliamentary Voting System and Constituencies Bill

Lord Davies of Stamford Excerpts

Tuesday 1st February 2011 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I completely support the spirit of this group of amendments. If all goes well—I nearly said “according to plan” but that would be giving a hostage to fortune—and the Bill gets through in time for the referendum to be held in May, there will be no time to lose. I think that every Member of the House concurs with the spirit that, if we are to have a referendum, we should ensure that it works as well as it possibly can and that as many as possible of our fellow countrymen and women take part in it.

I agree wholly with the amendment of the noble Lord, Lord Rooker, which would remove the discretion by simply obliging the Electoral Commission to provide information about each of the two voting systems. If the Government accept Amendment 108 in the name of the noble Lord, Lord Rooker, the first provision in Amendment 110ZZA, in the name of the noble Lord, Lord Lipsey, would be superfluous.

On the point made by the noble Lord, Lord Newton—he cast a fly in my direction, at which I leap—micro legislation is indeed food for lawyers and I am all agin it. However, I consider that the more dangerous provision in the amendment of the noble Lord, Lord Lipsey, in terms of “lawyerisation”, is its second provision, which would require that the leaflet,

“summarise the main arguments for and against first-pass-the-post and the alternative vote”.

There is much more room for lawyers to haggle over that before Her Majesty’s courts than there is over the “impartial and unbiased” provision. However, I suggest that the noble Lord, Lord Lipsey, should sleep on his amendment, given that its only essential provision—that is, the distribution to all households—should be taken care of by the amendment of the noble Lord, Lord Rooker. If the Electoral Commission is required to provide information about each of the two systems, surely that means delivery of information to every house. If there is any doubt about that, a change can be brought forward at the next stage.

I sympathise with the noble Lord, Lord Soley, because I did exactly as he did and had the same rather ghostly result. I tried three Electoral Commission numbers, which were all disconnected. However, I was informed a week ago by the commission that it is not disconnected and that it will definitely produce a leaflet that will be delivered to every household, so perhaps we can sleep soundly on that.

The plain English idea must be a good suggestion. Describing these two systems in the best and most limpid form that John Bull can understand on a bad night is essential. That amendment would be a step in the right direction.

[Lord Davies of Stamford]

My Lords, before getting to the substantive remarks that I wanted to make, as we have heard two interesting speeches I wonder whether it might be in order for the Leader of the House, on behalf of the House itself, formally to draw to the attention of the Electoral Commission the fact that noble Lords on both sides of the House appear to have had considerable difficulty getting in touch with the Electoral Commission by telephone. That is obviously a rather disturbing situation, particularly when everybody agrees that the Electoral Commission must play the key role in keeping the public informed as we move forward towards this referendum—if, indeed, we do. Although it would be nice to think that the staff of the Electoral Commission spent their free time reading Hansard of either House, that may be a rather hopeful assumption to make.

[Lord Soley]

The Electoral Commission staff do read Hansard. Indeed, I suspect that they watch some of the debate live, so perhaps I will soon get a text—I hope so.

[Lord Davies of Stamford]

I hope that, by whatever means, the Electoral Commission will address the issue raised by these two incidents, which hardly look as if they are purely coincidence. If noble Lords cannot get an answer from the Electoral Commission, what are the chances of an ordinary member of the public doing so? I suspect that that is a matter of concern not just to me but to the whole House.

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, it may be helpful if I deal with this issue because I understand that the Electoral Commission has just moved offices. That is why the old phone number does not work. The new phone numbers should be available in the normal way and we can make them available. If anybody wants them, they can call my office and we can get them to them. I am assured that the Electoral Commission takes great care and notice of what happens here.

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[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 Grocott]

I wonder if my noble friend would make a judgment if I offered him what I consider to be an impartial, unbiased and factual statement about the alternative vote system, namely that the system offered in this referendum is used by just three countries in the world and one of them is trying to get rid of it. That seems to me to be a statement of fact: is that something that he would recommend for a leaflet?

[Lord Davies of Stamford]

Indeed, as a statement of fact—I return to my philosophical discussion—that would be unexceptionable and unchallengeable. Of course, the way that a fact is stated immediately opens the author of the document to the charge that he or she has been selective and could equally well have set out the facts in an equally amusing or effective way that brought fire to bear on the other side of the question. My noble friend summarises brilliantly exactly the problems that will be encountered by anybody, however honest a man or woman he or she is, who sets out to produce something that will be characterised by the law of the land—by statute—as impartial and unbiased. That is probably asking something that no human being can do. None of us could produce an opinion that was genuinely unbiased and impartial. It is philosophically impossible and practically impossible in any political argument.

Therefore, while I totally agree with what my noble friend Lord Lipsey says, Parliament needs to place an obligation on the Electoral Commission to ensure that the public are properly informed about the choice that they must make, and about the characteristics of the two electoral systems. It is absolutely crucial that the Electoral Commission itself does not in any way risk its own credibility and integrity by putting its name to such a document. The suggestion that the Electoral Commission should distribute documents by the two campaigns would be a much better one as a result.

[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—

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[Lord Pannick]

I respectfully take the noble Lord’s point. I therefore assume that in the proper exercise of the discretion rightly given to it by paragraph 9 (2), the Electoral Commission will be preparing material which it may decide is appropriate to send to members of the public. But that is a matter for the commission.

[Lord Davies of Stamford]

As the point has already been made, there is no reference to summarising anything in this paragraph. It says:

“The Electoral Commission may take whatever steps they think appropriate to provide information”.

I hope the noble Lord agrees with me that that could equally well cover my proposal of arranging for the distribution of material produced by, for example, the organisations running the two campaigns. It is very important that we make it clear that there is that possibility there. That is encompassed within the existing text. The suggestion of summarising something, or producing pamphlets, is an additional issue that we are raising today in the course of debating these amendments.

[Lord Pannick]

I agree with the noble Lord, Lord Davies of Stamford, and that is why I am perfectly content with the existing wording which gives a free discretion to the Electoral Commission to take such steps as it thinks appropriate in all the circumstances as they transpire. We are making heavy weather of this.

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[Lord Strathclyde]

My Lords, that is an immensely good suggestion and of course that will be a decision for the Electoral Commission.

It is not clear from the current legislative framework under the Political Parties, Elections and Referendums Act 2000—specifically Section 13—whether the commission has the power to publish information about the voting systems for public awareness purposes in this particular referendum. Therefore the Government considered it best to make the position absolutely clear and accordingly, we tabled an amendment to insert paragraph 9(2) into Schedule 1 in Committee in the other place, which was passed and is now reflected in the Bill.

We do not see that it is necessary, or desirable, to mandate that the commission must issue information, as amendments tabled by the noble Lords, Lord Rooker and Lord Low, aim to do. Rather, it is the commission’s prerogative. The commission has indicated that it would like this power and that it clearly intends to exercise it but we do not think that the Bill should go further than that and oblige it to do so. Moreover, it is simply unnecessary to legally obligate the commission in this respect. The commission has already publicly indicated its intention to produce this information, and has published the draft text that will form the basis of public information leaflets on its website. I am glad that some noble Lords have seen it. It is important that those who take a real interest in these matters should look at it and send their comments to the Electoral Commission regarding this information before the leaflets are published.

The same point, concerning the appropriateness of imposing a legal mandate on the commission in this area, also applies to the amendments tabled by the noble Lord, Lord Lipsey. These would obligate the commission to provide a leaflet summarising the meaning of the question, together with the main arguments for and against first past the post and alternative vote. The amendments also specify that the leaflet must be impartial and unbiased, and distributed to every household in the UK, so far as possible.

The commission is clear that the leaflets will contain factual information; that this information will be impartial and unbiased—it would go against the commission's regulations to promote one particular outcome or be anything other than unbiased—and that it will go to every household in the UK. For this reason we do not think it appropriate that the information includes arguments for and against each voting system. The information will be factual, whereas the pros and cons are subjective. These arguments will naturally be for the campaigns. It is hard to see how the commission could be expected reasonably to summarise all of the arguments for and against in a way that is commonly accepted to be impartial and unbiased. This is an inherently partial subject, and the more the commission is drawn in to trying to describe the pros and cons, the more open it would become to allegations of partiality. It is important that the commission is neutral. Therefore, the arguments for and against should be left to the campaigns.

[Lord Davies of Stamford]

The Leader of the House is making exactly the point that I made, namely that it would be quite wrong and inappropriate for the commission to try to summarise the arguments for and against. Will he deal with the proposal that I made, with some support from my colleagues, that if there are two coherent campaigns, one on each side, the two organisations concerned should be invited to produce a leaflet that would be sent free to every household with the information pack from the Electoral Commission, as happened in 1975?

[Lord Strathclyde]

My Lords, the noble Lord is quite right, and therefore he and I are in agreement on this. As far as concerns the two campaigns, their material will not be part of the same leaflet pack. The campaigns, too, will get a free post, so that every voter will be left in no doubt about the information. Of course, we expect the media to play a full part in the campaign in the run-up to the referendum.