Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 20th December 2010 Lords Chamber

[Lord Campbell-Savours]

My Lords, I see that a number of new Members are attending our debate today, and I draw attention in particular to the noble Lord, Lord Tebbit, being in his place. While he has been away—no doubt he has been in the House, but has not been attending our debates—statements have been made that should be drawn to his attention, because they might make him as angry as they made me. A statement made last week in the House was the subject of much discussion but the newspapers and media outside the House have not picked up on it. I refer to my intervention to the noble Lord, Lord Strathclyde, which has caused a lot of concern, certainly among those who heard it. I asked him:

“What happens if only 13 per cent of the registered electorate vote in favour of the change in the referendum question? Will that 13 per cent, which is one in eight people in the country, be taken as the basis on which we can make this huge constitutional change?”.

He replied:

“My Lords, under the terms of the Bill, yes”.—[Official Report, 15/12/10; col. 717.]

I do not believe that Conservative Members of this House realise what is going on. They are not attending this debate and they very rarely speak, apart from two former Lord Chancellors. I do not believe that Conservative Members really know what is happening.

[Lord Falconer of Thoroton]

Although my noble friend may not realise it, I was, in fact, a Labour Lord Chancellor, not a Conservative one.

[Lord Campbell-Savours]

My Lords, forgive me; I did not mean that. I meant two former Chancellors of the Exchequer and the noble Lord, Lord Hamilton. The reality is that people do not know what is going on.

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[Lord Foulkes of Cumnock]

In the West Country, that may be rightly so, but where I come from the term is not thought of in quite that manner. I am very glad to see the noble Lord here. Having served with him in the House of Commons, I have great respect for him, especially as so many of the reforms in the House of Commons came from him. However, my recollection is that the reforms that he introduced in the House of Commons were brought in after careful thought, after much discussion and after cross-party deliberation—unlike those in the Bill. No doubt whoever is replying to the debate on the amendment will bear that point in mind.

My noble friend Lady Hayter of Kentish Town has raised a very important point. Incidentally, I thought that it was with great ingenuity that the noble Lord, Lord Elystan-Morgan, brought in the whole question of thresholds, which we have previously debated. I hope that at some point—I do not know whether that will be now or later this evening or on Report—we will be permitted to vote on the matter in Amendment 44A, because it is important that we should consider the question of thresholds. However, on the more important issue today concerning the result in the four countries that comprise the United Kingdom, I think that my noble friend Lady Hayter has done this House a great service in moving Amendment 44.

[Lord Falconer of Thoroton]

My Lords, I welcome the noble Lords, Lord St John, Lord Tebbit and Lord Roberts to this debate, which has, as ever, been a riveting discussion. I note two points in particular: first, that the noble Lords, Lord Tebbit and Lord McAvoy, appeared to agree on practically everything, excepting a marginal disagreement on the vote on joining the European Union; and, secondly, that the noble Lord, Lord Grocott, with a straight face described himself as a moderniser.

In Amendment 44, my noble friend Lady Hayter proposes that, in order for the referendum vote to effect a change in the voting system, there must be a yes vote in all four countries of the United Kingdom. As such, this is another debate on whether special barriers should need to be overcome before the voting system can be changed. In looking at the Bill, one of the roles of the House of Lords must be to ensure the correct constitutional proprieties. Whether one looks at the proposals in the Bill that was introduced before the general election or the proposals in this Bill, there is a constitutional piece of trickiness going on. Neither House of Parliament has said that it wants AV, so the proposal has not been endorsed by Parliament, in contradistinction to the proposal on membership of the European Union, which was endorsed by Parliament, and the devolution changes, which were endorsed by Parliament in 1999.

[Lord Anderson of Swansea]

Does my noble friend also accept that no party wants AV? Given that the Conservative Party does not want AV, the AV proposal of the then Labour Government was rejected in the general election and the Liberal party wants another form of representation, no party is in favour of AV either.

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[Lord Falconer of Thoroton]

That appears to be the position. The proposal does not have the support of Parliament and, as my noble friend Lord Anderson has pointed out, does not have the support of any individual party.

Suppose that, in a referendum with no threshold where implementation was compulsory, the turnout was 40 per cent. In that case, a result could be reached in which only 20 per cent of the country had voted in favour of AV. When we debated—last Wednesday, I think—my noble friend Lady Hayter’s Amendment 43, we heard how that proposal for a 25 per cent threshold could have produced a situation in which the change was effected if only 13 per cent of the population voted in favour of the proposition. Most countries in the world—sensibly, in my view—make it harder to change the constitution than to make other sorts of legislative change. The Government’s extraordinary proposal could lead to a change following a tiny proportion voting yes. The noble Lord, Lord Strathclyde, with characteristic robustness and honesty, took pleasure in the fact that, if 13 per cent voted in favour of the change in the voting system, the result could indeed be that the voting system should change. The only occasion when any sort of threshold has been required for a referendum that would have changed our constitution was on the only previous occasion on which implementation of the referendum decision was compulsory rather than indicative. I was not in the House of Commons in 1978 or 1979 but many who are here were, and all of them who have spoken have said that the Member for Islington South, Mr George Cunningham, persuaded people on a free vote that, when changing the constitution under such a proposal—which people thought might lead to the break-up of the United Kingdom—there has to be legitimacy. On the face of it, the effect of the Government’s proposal is a manoeuvre that could lead to a change in our constitution.

However, there is no point in debating whether Mr Nick Clegg is correct in saying that the proposal is the most important change since 1832. I do not think that anyone doubts that the proposal is an important change, but if the public think that it is the wrong change, they will not like it and their distrust of Parliament will increase. Our role in the Lords is to make the Commons think again, particularly in relation to the constitution, if we think that they have got it wrong. Our debate on the issue last Wednesday—I single out in particular the speech by the noble Lord, Lord Lamont—demonstrated the constitutional trickiness of the proposal. The fact that we could end up with Parliament not approving—and, indeed, probably being against—the proposed system but a tiny amount of the population being persuaded to vote for it shows that something has gone wrong in the way that we are dealing with the issue.

The proposal of my noble friend Lady Hayter is that, for the referendum to have effect, every country in the United Kingdom must vote yes. I tend towards the view that that is not the right answer because, in my view, we should do everything to promote coherence in the United Kingdom. That means that, where we are voting on a national voting system, implementation of any referendum should be guided by what the national vote is. Therefore, I would reject that approach. However, I am extremely keen that whoever replies from the Front Bench on behalf of the coalition should deal with the points that I have made. As the noble Lord, Lord Williamson, said, we debated the issue late at night last Wednesday and this is a point of real importance in relation to the constitution.

Finally, I want to pick up on what my noble friend Lord Rooker said about there being a legal and binding agreement between the members of the coalition not to agree to any outcome threshold. Of course, he is wrong about there being a legal agreement, because we are talking about politics here. I am glad to see the noble Lord, Lord Roberts, has returned for the end of the debate. It may be that, having heard the debate, the noble Lord, Lord Strathclyde, or the noble and learned Lord, Lord Wallace of Tankerness—whichever of them is answering the debate—will think that there are things more important than simply the terms of an agreement that was reached over a few days. I have in mind in particular a change to our constitution, which people of this country respect.

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

My Lords, we have certainly had a longer debate than I had imagined when I first saw this amendment, but it has been useful and I am grateful to the noble Baroness for having introduced it. When I first saw it, I thought it was possibly imaginative, possibly a little bizarre. I am not sure that I came to a conclusion as to which it was during the course of the debate but I became convinced it was flawed. The noble and learned Lord, Lord Falconer of Thoroton, agreed with me on that, as did other notable noble Lords from the other side, including the noble Lords, Lord Lipsey and Lord Grocott, and, I think, the noble Lord, Lord Howarth of Newport, as well. I therefore very much hope that, when it comes to deciding what to do with it, the noble Baroness will withdraw her amendment.

I was not planning on being drawn into a larger debate on thresholds. We discussed it well the other night. It is, however, worth making one or two points. The best suggestion to come out of this debate was that the noble Lord, Lord Grocott, and my noble friend Lord Tyler should get together over the Christmas period and discuss whether there could be some areas of agreement between them. If I may speak for my noble friend Lord Tyler in his absence, I am sure he will wish to take up the noble Lord’s invitation, and I hope to hear the good results from that discussion.

I hope the House, including my noble friend Lord Lamont and others, do not think that I do not understand why imposing a threshold might appear initially attractive. On the surface, it may seem to offer an extra layer of reassurance, particularly if the change that is being put to the vote is one that you personally do not favour. However, it is the Government’s firm view that if people want change—if a simple majority of those who turn out to vote want change—we should not deny them this by imposing artificial barriers. We have not specified a voter turnout threshold because we want to respect the will of the people who do vote in the referendum without conditions or qualifications.

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[Lord Strathclyde]

I very much agree with what the noble Lord said about the union, and with other noble Lords from all sides of the House who made exactly the same point. That is why we would not want to encourage this amendment in any way at all.

We will come back to thresholds on Report; this is an important debate to have. There was no threshold in 1975 in the only national referendum that we have held. The Opposition’s ardour for thresholds did not apply in 1997 and 1998 in their four referendums in Scotland, Wales, Northern Ireland and London. There has been no proposal from any major political party for a threshold in the referendum in Wales next March that would extend the powers of the National Assembly. Most tellingly, when AV was proposed in the Bill before Parliament, there was no threshold in that either.

[Lord Falconer of Thoroton]

I think it is right that the only time there was a threshold was in the compulsory referendum in 1978, which meant that Parliament would have no opportunity to consider whether there was a very low turnout.

[Lord Strathclyde]

The noble and learned Lord makes a good point, but the referendum that we are dealing with today is very simple; it is yes and no on changing the electoral system. The referendum that the people of Scotland and Wales faced in 1978 was entirely different and raised much more fundamental issues of constitutional propriety and the setting up of different Parliaments and Assemblies in both those countries.

[Lord Strathclyde]

I really do not agree. There has been much discussion on changing the electoral system for as long as I have been of voting age. It has been discussed many times in and outside Parliament. People are very well versed on this. As for this new convention that the noble Baroness has introduced, when the role of Lord Chancellor was scrapped, it was done on the back of an envelope—in a press release. There was no consultation or discussion whatever, even with the judiciary. It led to the resignation of the then Lord Chancellor, to be succeeded by the noble and learned Lord, so this is an entirely new convention. It may be very desirable, but it is new.

[Lord Falconer of Thoroton]

The noble Lord is so right; and the consequence was that the House, unprecedentedly and contrary to convention, referred that Bill to a Select Committee instead of granting it a Second Reading. We spent 18 months considering it, and although I kicked and screamed at the beginning, I said at the very end that the 18 months had been really worth it to make it a much better Bill. Please learn from that experience.

[Lord Strathclyde]

My Lords, I am glad that if the noble and learned Lord ever finds himself in government again he will not make the same mistakes.