Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 20th December 2010 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

45ZA: Clause 8, page 6, line 10, at end insert—
“( ) the Electoral Commission have certified that the electoral register is being kept substantially up to date in terms of its accuracy and completeness”

[Lord Falconer of Thoroton]

My Lords, the amendment seeks to insert into Clause 8(1) a third condition before the Minister must make an order. There are currently two conditions in the Bill: first, that there has been a yes vote in the referendum; and, secondly, in Clause 8(1)(b) that,

“the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below) has been submitted to Her Majesty in Council under section 4 of that Act”.

Without going into detail, that means that the constituency boundaries have been substantially redrawn in accordance with Part 2 of the Bill.

Our proposal seeks to ensure that, before there is any change in the voting system and any substantial redrawing of the boundaries, proper work is done to ensure that the electoral register is up to date. If that work is not done, you will end up with boundaries being in the wrong place. The electoral quota for the boundary review will be based on the date on which the review begins, according to the new rule in paragraph 9(2) of the new Schedule 2 to the 1986 Act.

On page 11 of the Bill, new paragraph 9(2), which is a new rule introduced by the Bill, states:

“The ‘electorate’ of the United Kingdom, or of a part of the United Kingdom or a constituency, is the total number of persons whose names appear on the relevant version of a register of parliamentary electors in respect of addresses in the United Kingdom, or in that part or that constituency. For this purpose the relevant version of a register is the version that is required by virtue of subsection (1) of section 13 of the Representation of the People Act 1983 to be published no later than the review date, or would be so required but for … any power”.

I do not think I need to read sub-paragraph (b). New paragraph 9(5) states:

“The ‘review date’, in relation to a report under section 3(1) of this Act that a Boundary Commission is required (by section 3(2)) to submit before a particular date, is two years and ten months before that date”.

The effect of all those provisions is that the quota is to be calculated on the basis of the electoral register on the date when the review begins.

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[Lord Campbell-Savours]

Does this not all inevitably mean that there will be some inner-city constituencies with huge populations in the very parts of the kingdom where most of the problems of social deprivation are concentrated?

[Lord Falconer of Thoroton]

That is inevitably the conclusion of the figures that I am talking about. If one goes back to what one would have thought would be the basic purpose of these changes—to increase trust in the electoral system for those who most depend on what politics does—to rush through a change in the boundaries that excludes them because there has not been a focus on who is on the register and who is not will tend to decrease trust. What is in it for the young person? What is in it for the person living in private rented accommodation? What is in it for the member of the black and minority ethnic group if the rushed changes do not include them?

If the Government are sincere, we commend this. We warned them to be wary of the experience in Northern Ireland where there were changes and not to rush individual voter registration. But the House and the country deserve to know the substance of their plans in relation to improving registration against the analysis that the Electoral Commission has made.

I very much hope that the noble and learned Lord will respond to the points that I have made. The coalition has made it a condition of the introduction of the AV system that there is a new boundary for almost all of the constituencies in the country. Surely we want those boundaries to reflect where the voters live.

[Lord Rooker]

In asking this question I may make myself look a right idiot, but thinking about what is happening, am I right in assuming that there will still be a census next year?

[Lord Rooker]

That means that there will be hundreds of thousands of census enumerators crawling around the country in March. Could they not check that the people in the dwellings that they go to are on the electoral register? It seems an ideal time for advance publicity before the referendum planned in May. We have a census taking place at some time around March. I know there is always an argument about swapping information, but this is an ideal opportunity, particularly in the areas where it is known that there is under-registration. There is nothing new in what my noble and learned friend says: the same areas were under-registered 30 years ago. In those special areas an effort could be made by the enumerators to cross-check their results at the end of the day with the electoral register.

[Lord Falconer of Thoroton]

I agree with my learned friend—sorry; my unlearned but profoundly friendly friend. Of course what I am saying is well known to everybody. However, he is wrong to say that the matter has remained static for 30 years. According to the ONS, the best estimate for non-registration among the eligible household population as at 15 October 2000 lies between 8 and 9 per cent. This compares with 7 to 9 per cent in 1991, so I think with respect that it is getting worse.

If this is meant to be the dawn of new politics, should the Government not commit themselves to doing all in their power to enable local registration officers to maximise the accuracy and completeness of the electoral register? No system is perfect and that is why my amendment does not propose any standard of perfection. It simply requires the Electoral Commission to certify that the electoral register has been kept substantially up to date.

[Lord Campbell-Savours]

When I talk to electoral registration officers, they are conscious of the fact that their budgets are not ring-fenced within local authorities. There is a danger that despite all the legislation that has been going through in recent years about individual registration and so on, they simply will not have the resources to ensure the high levels of registration that my noble friend is calling for.

[Lord Falconer of Thoroton]

I appreciate that. My noble friend Lord Campbell-Savours has not said it, but he will be aware that in the context of what are quite savage cuts in local authority expenditure, the enthusiasm for this sort of work in local authorities will go down yet further.

The coalition presents its proposals and the noble Lord, Lord McNally—sadly not in his place at the moment—when confronted with difficulty says that what he seeks to achieve is fairness. It must involve fairness for all groups, but most particularly those groups that are under-represented.

[Lord Rennard]

Does the noble and learned Lord agree with me that all previous Boundary Commission reviews—I think that there have been five general reviews since 1944, conducted under Labour and Conservative Governments—have been based on the electoral register as it is, rather than as we would wish it to be: even more accurate and even more complete? Would he perhaps acknowledge the contribution of his noble friend Lord Wills, who was instrumental in improving the accuracy of the electoral register under the previous Labour Government, ensuring for example the provision of the rolling register, so that hundreds of thousands more voters were added to the register in April this year in order to vote in the general election? The system is now rather better than it has been previously, so the register as of 1 December this year will be more accurate than it was previously, and it is a good register on which to base the next Boundary Commission review—certainly better than it would have been otherwise and no different or worse than the previous five Boundary Commission reviews.

[Lord Falconer of Thoroton]

I agree with the noble Lord when he says that it is better than the previous five boundary reviews. I agree with him that my noble friend Lord Wills made a major contribution to that and that we did a lot to deal with the issue. The evidence that I rely on is the March 2010 report of the Electoral Commission. Although the electoral register prepared in April indicated some improvements, the speech that I made earlier indicates the fundamental problems in relation to the register, which the Electoral Commission identified. I would be extremely surprised and concerned if the noble and learned Lord, Lord Wallace of Tankerness, departed from the position of the Electoral Commission in relation to that. Yes, we have made improvements, but there is still a long way to go, in particular in relation to the private rented sector, young people and black and minority ethnic groups. There is a very substantial group of people who are not on the electoral register but who could be if an effort was made.

[Lord Beecham]

Will my noble and learned friend comment on the likely impact of individual registration, which is shortly to come, on the total on the register?

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[Lord Falconer of Thoroton]

In Northern Ireland, there is a problem with individual registration. Eventually it should improve the accuracy of the register, but it will take some time in relation to it, and household registration tends to involve more people being registered than does individual registration. We introduced individual registration because we did not like the idea of it being the head of the household who determined whether or not you got registered. My noble friend Lord Beecham is right in saying that because that measure might reduce the number of people registered, the consequence is that you need more effort on the part of the electoral registration officers to ensure that things keep up. Ultimately, you cannot—if the claim is fairness—say that it is fairness in relation to this one aspect but not to another.

If the position of the coalition is that it will not introduce AV, even if 99 per cent are in favour, until the Boundary Commission has reported, why will it not also accept our condition, which would have a fundamentally galvanising effect on electoral registration? It would mean that the Government of the day had the highest possible motivation to ensure that there was proper registration and that the sorts of problems to which the Electoral Commission has referred would be dealt with. This is how to make a difference in this regard.

I await the noble and learned Lord’s answer as to why, if at all, this proposal would not and should not be introduced. It is a wholly good thing, which would improve our democracy and would, most importantly, bring into our democracy people in black and minority ethnic groups, which are perhaps the groups that feel most alienated and excluded by it at the moment. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I support my noble and learned friend Lord Falconer on the basis that, if the boundaries are to be reviewed, the numbers should be as accurate as possible. First, however, I did not agree with what my own Government did in relation to changing the arrangements for registering for elections. I thought the head of the household system was far better than individual registration, and far more likely to ensure that more people were registered. I am worried about the effect that it will have when we move on to individual registration. I think that 17 or 18 year-olds are less likely to fill in forms, whereas the head of the household could ensure that all of the people of voting age were registered. I think it is a pity that we have moved in that direction.

However, the introduction of the rolling register, as the noble Lord, Lord Rennard, said, has significantly improved the situation. More and more people are registering now instead of having to wait for one particular date to register. That has been a great improvement.

My noble and learned friend Lord Falconer said that the numbers could be more accurate if an effort was made—I want to come to that point—to make sure that people are registered. He mentioned that two of the areas in which there was the lowest registration were Lambeth and Glasgow—he mentioned Glasgow in particular. I draw to the attention of the House what happened in Glasgow over the few months up to the end of November. Because the problems of under-registration were causing concern to MPs in Glasgow, they asked the leader of the council, Councillor Gordon Matheson, to carry out an exercise of going around the city to see if people were not registered who ought to be. During the course of just a few months, nearly 36,000 extra voters were registered. That is an astonishing number. If that was carried out in every constituency, in every city, and in every county, then we would get a much more accurate picture of those people who are not now registered and who ought to be.

I have raised this in the context of other areas, and I have been told that it is too late now to get registered if the timetable in this Bill is adhered to. I would be grateful if the Minister could confirm whether that is the case and whether we could ask each council to undertake the kind of exercise that was carried out in Glasgow.

If it is too late, then we need to consider alternatives, but if it is not, we should be getting MPs to encourage councils to carry out this kind of exercise. Before my noble friend Lord Rooker raised it, I, too, had written down the question of the census. That is another opportunity to gather a more accurate picture of those who are eligible to vote. It would be helpful if, in his reply, the Minister would indicate whether it is possible to get the census enumerators, as they go around, to ask an additional question, about registration —the names of the people in the household over 18 or those who will attain the age of 18 by a particular date. They could hand forms out when they are going around, or leaflets. That is my order of preference—to get them registered and take a note of it, then to give them a form and, failing that, to give them a leaflet. That would help.

I do not want to hold back the House unduly regarding this, but one of the things that has been noticed, and this has been said by some other colleagues in previous debates, is that it is funny seeing the two former Chancellors on the Benches opposite. It is a bit like the characters in the gallery on “The Muppets”, sitting there commenting on events.

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[Lord Wallace of Tankerness]

According to the terms of the Bill, I think that the second boundary review will report on 1 October 2018. The noble and learned Lord indicated that there were difficulties involved in rushing registration and we have taken that on board. However, I cannot be absolutely certain about the extent to which that will be fully fed in for the report that comes out in 2018, with, I think I am right in saying, a review date of 1 December 2015. I hope that my arithmetic is correct. We hope to make substantial progress with individual registration ahead of that date.

I hope to reassure the Committee that this is an important issue and that that is how the Government are treating it. We have put in train measures to try to increase voter registration but we do not believe that that should be a precondition for the introduction of the alternative vote system. However, I believe that such an increase is absolutely right in its own terms and that we should make a concerted effort to improve voter registration, not least so that those who are entitled to vote get the opportunity to do so in future elections and, indeed, in a future referendum.

[Lord Falconer of Thoroton]

I express my gratitude to the noble and learned Lord, Lord Wallace of Tankerness, for his response to my amendment. It was gracious and detailed and dealt with the issue. Perhaps I may draw out a number of the points that he made. First, he said—in my view, rightly—that there is an obligation to address these issues. He said that he regarded it as right in its own terms that this issue is addressed, by which I take him to mean that, irrespective of the Bill, it is something that needs to be done. I have not noted his precise words on this but he also accepted that it is an important issue because it effectively disenfranchises the groups on which I think we agree—that is, those in the private rented sector, those in the BME community and young people. That is why it is important.

In effect, he confirmed that, as the Electoral Commission said, we are getting a registration level of 91 to 92 per cent, which means that about 8 to 9 per cent are not registered. Therefore, there is no dispute in relation to the position.

He made a point which had not occurred to me but which seems important—that a review two years and 10 months before the effective date means that the relevant date is 1 December 2010. That means that, if you want to make a difference to electoral registration, you need to move the review date a year forward at the very minimum to make it worth while.

The point that the noble and learned Lord did not deal with is that if, like me, he accepts the importance of dealing with these points, why is this not the obvious Bill in which to do it? If he is serious about dealing with these points, it is obvious that something else is required. The points he relied on to start with—for example, that the electoral registration officers have a duty and the Electoral Commission have an obligation to set a standard, the two particularly good points he relied on—are not only not improving the position but would appear from the comparison between the 1991 position of 7 to 8 per cent, and the 2001 position of 8 to 9 per cent. They are not to be leading to an improvement and therefore something else is required.

The coalition has taken the view that it would be wrong to introduce AV without first having equalised the constituencies. Why do the coalition regard the equalisation of the constituencies as more important than trying to get a substantial proportion of that 3.5 million who are not registered on the electoral register?

I am pleased to see the noble Lord, Lord McNally, in his place. I regard him as the public face of the coalition’s defence of this particular Bill. It is hard to imagine a more attractive and handsome public face. What he says in response to practically any complaint about this Bill, and what we are focusing on, is fairness and fair votes. Surely it is fair to the people who are not registered—3.5 million of them—that they get on to the electoral register?

I am grateful to the noble and learned Lord, Lord Wallace, for his full answer, which was a genuine response to what I have said. I will come back with an amendment like this on Report which, because of what the noble and learned Lord has said about the review date, to be meaningful has to give enough time for the coalition to make improvements in relation to it.

Remember that what I am asking for is not a complete and accurate register in every respect but simply a conclusion from the Electoral Commission that it is satisfied, in substance, that all efforts have been taken to get as many people as possible on to the electoral register.

I will not, therefore, press my amendment tonight but I will come back, taking into account the points that the noble and learned Lord made in his response.

Amendment 45ZA withdrawn.

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[Lord Campbell-Savours]

I wish to speak to Clause 8 because I am worried that a certain portion of the House—essentially, the Cross-Benchers—is unaware of the fuller implications of what we are doing. I want to address my remarks primarily to them during the course of this debate. Clause 8 deals with actions that the Government must take following the result of the referendum, a referendum that is based on a simple majority. A simple majority vote is what the Government argue is their way of respecting the will of the people. I quote those words “respecting the will of the people” because they were the words that the noble Lord, Lord Strathclyde, used in his response to the amendment moved by my noble friend Lady Hayter of Kentish Town.

I go back to 13 per cent. That is hardly what I would call the will of the people. I would argue that that not being the will of the people, the Government should—the Bill says “must”—take certain actions in this clause. I would argue that they should not take those actions. I argue that that 13 per cent figure is particularly relevant—we are back, essentially, to a threshold debate—because last week I had conversations with various electoral registration officers in the north-west of England, and from the conclusions that I drew as a result of those debates it is quite obvious that when the referendum takes place in various parts of the country next year, there will be some very low turnouts indeed. I cite the case of Manchester City Council because its elections in 2007 broadly reflect the results coming from a stream of cities in the north-west of England. Liverpool, Burnley, Preston and all the cities around that area broadly had the same turnouts in their local election campaigns. I will refer to a return that was sent to me by Manchester City Council for the elections in 2007.

The relevance of this to the Cross-Benchers is this; I believe that most Cross-Benchers have had no experience whatever of turnouts in elections. The closest that most Cross-Benchers in this House will ever have been to an election is voting in one. They will never have canvassed, they will never have been members of political parties, and their knowledge of these matters will be very small indeed. I draw the Cross-Benchers’ attention to some turnout figures so that when they read the record of the debate, they will understand what happens in these inner city seats—seats that will form part of the national results. It takes only 50.1 per cent of the return in these seats actually to win the referendum.

I will not name the seats in Manchester, but I will go through some of the turnouts: 24 per cent, 21 per cent, 23 per cent, 22 per cent, 27 per cent, 16 per cent, 29 per cent, 28 per cent, 21 per cent, 27 per cent, 20 per cent, 29 per cent and 17 per cent. Let us remember that it needs only half of these turnouts in terms of cast votes to decide in favour. They will in effect approve the biggest constitutional question, in what I think were the words of Mr Clegg, for the last 180 years. I shall go on: 24 per cent, 29 per cent, 25 per cent, 21 per cent, 21 per cent, 21 per cent, making an average of 27 per cent. Those are very low turnouts indeed. I cannot see how it is possible to justify changing the law on such a major constitutional issue on the basis of low turnouts on this scale.

If I translate those turnouts into the votes that are actually required in Manchester City, a city of a third of a million people, on an average turnout of 27.7 per cent you need only 13.85 per cent of the electorate to approve the referendum. It means that the votes alone of 42,580 people in Manchester, a city of a third of a million people, would determine the result of whether people were in favour of the change in our electoral arrangements to AV. I do not believe that 42,000 out of a third of a million people in Manchester could in anyone’s language be described as the will of the people being exercised in the way suggested by the noble Lord, Lord Strathclyde. It is far too low a figure.

I have spoken in the debate on clause stand part because I hope that when the Cross-Benchers, who I maintain again have no experience whatever of being engaged in political activity, consider this statistic alone, it might give them pause and make them wonder whether it might now be appropriate to introduce a threshold. Despite what was said in the House of Commons, the reality is that this matter was hardly debated at the other end. There was no great debate because of the way House of Commons business is conducted these days. I hope that the statistics I have produced will get through to those whose judgment may be influenced.

[Lord Falconer of Thoroton]

My Lords, this clause is at the heart of Part 1. In my submission, there are two things that one needs to focus on. First, it is to be a compulsory referendum in the sense that the Minister is required to introduce the new AV system without any protection against a low turnout. The noble Lord, Lord Strathclyde, said that we would trust the view of the people in that respect, but the difficulty about that is that he did not address the argument put repeatedly and effectively that where you are dealing with significant constitutional change, most systems, including ours, build in protections against change that does not have adequate political and popular support.

This is a constitutional change that does not have the support of Parliament or, as my noble friend Lord Campbell-Savours said in the course of the debate, that of any political party. I therefore ask the noble Lord, Lord Strathclyde, to address the fact that in this way you could have constitutional change that is supported by 13 per cent of the population but is not supported by Parliament or by any political party. Most people would regard that kind of change as easier than normal legislative change, so will the noble Lord, Lord Strathclyde, address the argument by saying more than simply, “We trust the will of the people”? Some thought must have been given to that matter. He looks bewildered—as he often does in relation to the Bill—but if he can do no better than that, the House will draw its own conclusions. If his argument is no better than that, he should say so.

The second point about this provision is that the coalition has decided that before AV is introduced the constituencies should be equalised. This is presumably because it takes the view that it would be unfair to have a new electoral system if there is unfairness in the size of constituencies. Indeed, the noble Lord, Lord McNally, has made the point that they are trying to achieve fairness. However, it is obvious that, as the majority of constituencies in this country will be redrawn, it will be unfair to constituencies if they are redrawn on an inaccurate electoral register.

In answer to a Written Question from my noble friend Lord Bassam of Brighton, the Government have produced figures setting out the discrepancy between constituencies in who is on the electoral register and who is over 18. The noble Lord, Lord Taylor, is nodding sagely and I express our gratitude, on behalf of the nation, for his openness in providing that information. The information repays looking at. Take the north-east of England, for example. In the City of Durham 12,714 people over 18 are not on the register in a constituency in which about 67,000 people are registered; in Newcastle upon Tyne Central, 12,164 people are not registered in a constituency in which about 66,000 are registered. In Manchester Central, 11,820 people are not registered in a constituency in which 78,000 people are registered; in Bradford West, 15,885 people over 18 are not registered in a constituency of approximately 65,000; in Sheffield Central, 60,000 people are registered and approximately 24,000 are not registered; in Leeds North West, approximately 68,000 people are registered and 17,528 are not. Which is the greater unfairness: that the constituencies are not equalised or that these numbers of people are not registered? Interestingly, these people are in constituencies with significant numbers of people in the private rented sector or in BME communities.

Surely the right course for Clause 8 is to ensure that both conditions are met before AV is introduced. It would make a difference because it would provide a drive for electoral registration that has not previously occurred.

[Lord Campbell-Savours]

Is not the interesting factor governing the statistics introduced by my noble and learned friend that they are primarily Labour seats?

[Lord Falconer of Thoroton]

It had not occurred to me that they were Labour seats. I hope that the House will address these issues on the merits of the argument. However, it would not surprise me that they were Labour seats because these tend to be in areas where the poorest—the BME communities, the private rented sector and students—live. If I had thought about it, that would probably have been the answer, but so what if they are Labour seats?

[Lord McAvoy]

My noble and learned friend complimented the noble Lord, Lord Taylor of Holbeach, on being open and on making the figures available. He did not quite make them available; he produced them only after a Parliamentary Question was put down. He did not for the sake of being helpful to all concerned put down figures for the whole of the UK by country. My noble friend Lord Bassam of Brighton requested the figures for England; I have asked in a Written Question for the same figures for Scotland, so that I may make the same comparisons. The fact that the Government have not exactly rushed forward with the figures suggests not that they were hiding them but that they were not contributing to a wholly informed debate on people missing from the register.

[Lord Falconer of Thoroton]

I had not spotted that the figures did not include Scotland; we had the information for Wales. I presume that the noble Lord, Lord Taylor, was not asked about Scotland, which is why he produced figures only for England and Wales. He is in his place, but does not tell us. I do not know why he did not produce figures for Scotland. It would obviously be worth while to see them. I am sure, knowing the noble Lord as the Committee does, that he would be very willing to produce the Scottish figures. I am not sure whether the Front Bench are nodding or shaking their head. It would be good to see the Scottish figures. No doubt they will be produced in answer to my noble friend.

[Lord Campbell-Savours]

I am sorry to press my noble and learned friend. The relevance of the figures being for Labour seats is that many people believe that it is why the Government are relatively indifferent to the problem.

[Lord Falconer of Thoroton]

I do not know why the Government are behaving in this way. It does not matter to me whether they are Labour or Tory seats. The noble and learned Lord, Lord Wallace of Tankerness, was absolutely clear—I accept his sincerity in this respect—that he was indifferent to the political hue of the seats and that this was the matter that needed to be dealt with. This is the way to deal with it. That is why the answers that have been given are so surprising. I hope that, if the noble Lord, Lord Strathclyde, is answering, which I deduce is the case because he floated to his feet before I had an opportunity to make my speech, he will deal with that.

[Lord Foulkes of Cumnock]

I am deeply grateful to the Government Chief Whip for providing this extra time for us to debate Clause 8. I am glad to see that the noble Lord, Lord Deben—the artist previously known as John Selwyn Gummer—is here, even though he has moved conveniently to another part of the Chamber. He was concerned that some of us—although I have been here for five years now and have become sort of institutionalised in this place; the noble Lord joined us relatively recently—had imported habits from the other place. I shall try to explain to him and others why some of us here who were in the other place—in my case, it was for 26 years; a number of other Members were there even longer—are deeply concerned about what is happening. This clause is the fulcrum, as someone said earlier, of that.

Perhaps I can explain it better another way. I go around now to different countries as a member of the board of the Westminster Foundation for Democracy. We talk to it about the Westminster system, our system of democracy and control, and the way in which we have checks and balances and parliamentary control of the Executive. The noble Baroness, Lady D’Souza—I call her my noble friend—was on the board with me for a number of years, and prior to that, and played an excellent role. She will remember all our discussions.

If the Bill gets bulldozed through, can we still go around to these countries and say that we are the greatest democracy in the world, the epitome of democracy, and that this Westminster system is the one to be held up for others to follow? We saw the Bill of 300 pages hugely amended in the House of Commons—I do not think that it was 300 pages when it started—with lots of amendments put down, lots of clauses never properly scrutinised, and great faith put in the drafters, the civil servants. After five years working with civil servants, I am always very cautious about putting total faith in their drafting, but no doubt Ministers think otherwise.

The noble Lord, Lord McNally, has put down dozens of amendments in this House which are going to have to go back; huge changes have taken place. The Bill was guillotined in the Commons. They did not consider it in every detail. They did not think: is this right, what are the implications, are there any unintended consequences to this, are there any implications for anything else that we are doing? They did not consider whether there were any implications for fixed-term Parliaments and reform of the House of Lords, as I said in an earlier debate. They did not consider that. Now there is the suggestion that we are not going to be able to consider it properly here. If that is the case, it will have gone through two Houses of Parliament without proper, detailed consideration.

Take other countries, such as the United States of America. It is not perfect in any way, but it has two democratically elected chambers—the House of Representatives and the Senate—the President taking part in terms of legislation, while the Supreme Court provides an opportunity to consider whether there is anything that infringes the constitution of the United States. We do not have those checks and balances here; we are rushing the Bill through.

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[Lord Strathclyde]

I am afraid that I lost a long time ago where this 13 per cent figure came from. It might have come from the noble and learned Lord at some stage.

[Lord Falconer of Thoroton]

It came from my noble friend Lady Hayter, who is sadly not in her place, who proposed a 25 per cent threshold, which with extreme enthusiasm the noble Lord, Lord Strathclyde, rejected. When asked whether he was therefore happy that 13 per cent could lead to the change, he said, “Yes”. That is where it came from.

[Lord Strathclyde]

Are we not just building one hypothetical proposition onto another?

[Lord Falconer of Thoroton]

Thresholds deal only with a situation where the vote is that low. If it is higher than that, you never rely on the threshold.

[Lord Campbell-Savours]

The noble Lord says this is hypothetical. I have read out to the House a whole series of statistics from Manchester City Council showing that it is unlikely that it will be more than 13 per cent, based on the historic record of the elections in 2007. How can he call it hypothetical? That is what is going to happen.

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[Lord Campbell-Savours]

The Member for Christchurch, in the House of Commons, who was supported by Eleanor Laing, Greg Knight, James Clappison and Robert Syms. He stated:

“I beg to move amendment 62, in clause 7, page 5, leave out lines 9 to 11 and insert ‘but no preference beyond the second may be indicated’.—[Official Report, Commons, 19 /10/10; col. 837.]

He went through the use of a numbered system. I hope that the noble Lord in reply can simply clarify the position as to whether the language that I have deployed in this amendment, if it were enshrined in the Bill, would be acceptable. I beg to move.

[Lord Falconer of Thoroton]

What the group does is bring into the Bill both the federal Australian system, which is that you have to use all your preferences, and it also brings in the SV system, which is the one used in London. It goes back to the question as to what is the best AV system to use. The Government have made a choice as to what they think is the best AV system, which is one where you have the right to use a number of preferences, but you do not have to use them all. The second option is the one used in the federal system in Australia where you have to use them all and the third option is the one used in London which is where you identify the top two candidates from first preferences and then you divide all the second preferences from the other candidates between those two candidates. As I read the group—although the noble Lord, Lord Campbell-Savours, is shaking his head—it seeks to put in those two systems.

[Lord Campbell-Savours]

On the ballot paper, instead of putting two crosses, as you do under the London system at the moment, you would put one and two. That is the only difference. But at least it looks like the alternative vote for those who are obsessed on the other side of the House with that system.

[Lord Falconer of Thoroton]

Does the drafting work? Is it appropriate? Why is it not in there? These are the questions for the Government. It might not necessarily be in the form or in the shape that the noble Lord, Lord Campbell-Savours, put it, but as an alternative that the Government can select, after a proper consultation. Ultimately, one way of dealing with this issue would be for there to be a simple referendum on replacing first past the post with AV. Assuming that there was a yes vote—ignore the complications that we talked about earlier on—choosing which of the three systems was best could be done by the Government. There could still be compulsion in introducing AV, but there could be a proper debate with the public and in Parliament as to which is the best system, rather than the way it is done at the moment, which is that the Government have selected a particular system of AV, about which there has been no consultation and no explanation to the public. There are two questions. First, is the drafting right? Secondly, why not incorporate in the Bill the three options and allow Parliament to decide after a public consultation which is the best?

[Lord Wallace of Tankerness]

My Lords, I appreciate the fact that, in introducing the amendment, the noble Lord, Lord Campbell-Savours, said that he did not wish to re-rehearse the issues on the supplementary vote, which we have already been through. Was it on day three of Committee? He gave us the Hansard references. Indeed, I do not want to rehearse again the reasons why the Government do not support the supplementary vote for the purposes of the Bill that were outlined by my noble friend Lord Strathclyde. I do not think that the House would welcome being detained at present.

We believe that the noble Lord’s amendments would limit voters’ choice in expressing preferences for the candidates who would be standing for election, as they would be able to express a preference for only two candidates. Our preference, if I may put it that way, is that there should be more optional preferences that can be exercised by voters without any compulsion to vote for each candidate.

There is clearly a difference of view about the type of system that should be used. I note that the noble Lord, Lord Campbell-Savours, said that it was not the classic supplementary vote but perhaps the supplementary vote with cosmetic—

--- Later in debate ---

[Lord Falconer of Thoroton]

We have a lot of choices for the Government here in what they can do. The noble Lord, Lord Lipsey, rightly draws our attention to new Section 37A in Clause 9(1), which says:

“A voter votes by marking the ballot paper with … the number 1 opposite the name of the candidate who is the voter’s first preference”,

and continues,

“if the voter wishes, the number 2 opposite the name of the candidate who is the voter’s second preference, and so on”.

I understand that the amendment in the name of the noble Lord, Lord Lipsey, is designed to deal with the situation in which there is only one X on the ballot paper. There is no X, 2, 3 or 4, nor is there X against more than one name. Under the amendment, it would not be possible to count that as a vote in favour or a first preference for the person against whom the X is granted. You would need to be an idiot not to believe that the X against one name and one name only is the first preference.

The noble Lord, Lord Rooker, who is an expert in all matters, says that it is perfectly obvious that the returning officer would treat that as voting for your first preference. Well, that would not be consistent with Clause 9(1); I do not have the noble Lord’s experience to know how returning officers might deal with it, but I suspect that some would deal with it in some way and some would deal with it in another way. It seems right that if you put an X against only one name, as your intention is so clear the right course for the Bill is that it should reflect that course. I do not think that the drafting of the noble Lord, Lord Lipsey, quite achieves what he wants because it says:

“Where a voter marks a ballot with a cross against the name of a candidate, that cross shall count as if the voter had placed the number 1 opposite the name of that candidate”.

That does not deal with the situation in which he has X against more than one name or with the situation in which he has put X, 2, 3, 4 or 5, but this is Committee and the intention of the noble Lord, Lord Lipsey, was absolutely clear. It was understood by the noble Lord, Lord Norton of Louth, by the noble Lord, Lord Hamilton of Epsom, by me and by everyone else in a particular way. I do not accept the actual drafting but I strongly support the intention behind the amendment. I apologise to the noble Lord, Lord Campbell-Savours.

[Lord Campbell-Savours]

Does my noble and learned friend not recognise that it completely undermines the intention behind the introduction of the AV system?

[Lord Falconer of Thoroton]

With respect to the noble Lord, Lord Campbell-Savours—and I respect him greatly on this matter—he overstated the effect of this and I also think that if in 2015 there is a system of alternative votes, some people who have been voting for a very long time might well think that the thing to do is to put an X against their favoured candidate. That should be treated as their first—

[Lord Rooker]

Look, I can guarantee that somewhere in the current election rules for first past the post, the instructions are that a voter places an X against the name. That is the reverse of this proposal. Yet, if voters put a 1 or a tick which is clearly indicated and is not applied to more than one name, that vote will carry for that person. The cross would count in extreme circumstances and that does not need to be put in the Bill. Doing that would send all the wrong signals to the voters when we are moving away from first past the post.

[Lord Falconer of Thoroton]

There now appears to be agreement that we all want an X against one name only to count as the first preference. The only issue appears to be whether or not one puts that in the Bill or in guidance. If one is changing the system and saying that the way you vote is by marking a 1, I should have thought that the sensible way to do that was by making it clear in the Bill. I support the noble Lord, Lord Norton, the noble Lord, Lord Hamilton, and, above all, the noble Lord, Lord Lipsey. I hope, although I accept that redrafting is required, that the noble and learned Lord, Lord Wallace of Tankerness, who has proved to be a gem, if I may say so, can see that.

[Lord Wallace of Tankerness]

In response to the amendment, the noble Lord, Lord Lipsey, has indicated that I might send him home happy. I hope that in the spirit of the remarks I am about to make he will still go to his Christmas retreat a happy man. As the noble and learned Lord, Lord Falconer, said, the amendment as drafted would not necessarily meet the point, but I hope that I can give the noble Lord, Lord Lipsey, and other noble Lords who have supported him, some clear reassurance.

The amendment is unnecessary because in Schedule 10 to the Bill, on page 294—which I hope we will get to one day—it is stated at paragraph 6(2C) that under rule 47:

“A ballot paper on which the voter makes any mark which … is clearly intended to indicate a particular preference for a particular candidate, but … is not a number (or is a number written otherwise than as an arabic numeral), shall be treated in the same way as if the appropriate number (written as an arabic numeral) had been marked instead”.

I hope that that addresses the issue. If there is one X, it will be very clear.

The important point is that the returning officer has discretion to make a judgment as to whether a clear intention has been made. That is why two Xs would not demonstrate a clear intention. I believe that one X would demonstrate a clear intention and that is provided for in the rules.

[Lord Wallace of Tankerness]

It is a matter for the returning officers to determine ultimately whether they believe an intention has been indicated.

[Lord Falconer of Thoroton]

I thought that the general agreement around the House was that if there is an X against only one name, we want the returning officer to say yes. That is a vote for a first preference. If you are saying that X is okay, but you are leaving it to the returning officer, that seems to be inconsistent. Why not put it in the Bill?

[Lord Wallace of Tankerness]

There may have been a misunderstanding. I wanted to make a particular point to the noble Lord, Lord McAvoy, who said that an X had been put through a name, rather than against it. There was a suggestion that in such cases, far from wanting a candidate, the voter did not want them. Those are circumstances where it would be invidious to suggest what would happen. Certainly when an X is marked against a name, it is clear from the provision in the Bill that the vote would be valid.

The noble Lord, Lord Campbell-Savours, is concerned —and I understand his concern—that this might lead to undermining the system. I think it was the noble and learned Lord, Lord Falconer, who indicated that if there was a yes vote in the referendum, in the run-up to a general election in 2015 there would be advertising making the position clear. There were indications that that actually happened in the Scottish elections where a single transferrable vote requiring numbered preferences was used.

The night is drawing on but perhaps I may relate one small anecdote. I stood in the first ever European election in the south of Scotland and I have the dubious distinction of being the first person ever to lose their deposit in a European election. I have no doubt that my noble friend Lord Alderdice will recall that the 1979 European elections in Northern Ireland were carried out on the basis of the single transferable vote, whereas in the rest of the United Kingdom they were carried out on the basis of first past the post. A corner of Galloway in the south of Scotland received Ulster TV, on which the advertising encouraged people to use their vote by marking 1, 2 and 3. In several polling stations in that part of Galloway a number of ballot papers were marked with a 1, 2 and 3, although the election was on the basis of first past the post. However, there was agreement that the number 1 on a ballot paper would be accepted as a valid vote.

Let us not underestimate the voters. There will be ample advertising to indicate that the nature of the election will be a preferential vote system. I do not believe that that will undermine the election or that it will give rise to the concerns raised by the noble Lord, Lord Campbell-Savours.

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[Lord Foulkes of Cumnock]

Absolutely. That is why I do not support this system. The reason I support the amendment is because it makes the alternative vote system look so ridiculous that we come back to first past the post.

[Lord Falconer of Thoroton]

My Lords, one can only think that this is like Heathrow at the moment. First we are told by the Government Chief Whip that we are going to go on till taxis, then we are told that we are going to do the next amendment—and then the Leader of the House says that we are going to go on to the end of this particular clause. So information is short. I look across at the Benches opposite and am glad to see that Ministers are using the seating to try to get a bit of a snooze in while this debate is going on. I imagine that quite shortly blankets will be produced for people across the Benches.

This is quite an important amendment. The need for it comes from the fact that, as a result of it being a compulsory referendum, you need to resolve issues about how the alternative vote system works. My noble friend Lord Rooker raises the question that your third, fourth and fifth preferences may not be treated with the same enthusiasm as your first and second preferences and he deals to some extent—although he eschews this in what he says—with the problem that your third, fourth and fifth preference may include unacceptable extremist parties. We do not want their second preferences to determine the vote in the election. We have to address this issue if there is going to be a referendum. We have to address it on the basis that, whether or not you like AV, if the AV referendum wins, how we deal with the amendment proposed by my noble friend Lord Rooker will determine how we deal with second, third and fourth preferences.

I can see the intellectual force of the position taken by the great intellectual, my noble friend Lord Rooker, but it seems to me to lead to the following problems. First, it says,

“reallocated … by the proportion of its preference (that is to say if the candidate was ranked 3 then one third of a vote, if ranked 4 then one quarter of a vote and so on)”.

So if there are 12 candidates, as there are in by-elections from time to time, it could go down to as low as one-twelfth of a vote. That is complicated and it leads to the proposition that somebody could win an election by one-twelfth of a vote, because you end up with one-twelfth of a vote being given. If number one and number two are equal and the twelfth candidate’s preferences are given and it is a twelfth for one and none for the other, you win by one-twelfth of a vote. That strikes me as an absurd system of a very high degree of complexity. The noble Lord, Lord Rooker, has indentified a real problem in relation to AV which has to be addressed in the Bill, because it is a compulsory referendum. We can draw our own conclusions as to whether AV is the right system or not, but this does have to be addressed. While I recognise the problems that the noble Lord, Lord Rooker, points out, my own view is that the right course is to go with something that is clear, simple and practical, rather than a system that—

[Lord Campbell-Savours]

My noble and learned friend says that the system is complicated. How would it be complicated with electronic voting? There would be no manual intervention at all. It would all be sorted out by the computer run.

Lord Falconer of Thoroton: I do not think that the count would necessarily be complicated; it is the explanation of “If you give me your third preferences, I will get one third of a vote”. In the course of the counting, fractions of votes will be counted against individual candidates; that strikes me as complicated, lacking in clarity and implausible as far as the electorate are concerned. To be told that I have got two-thirds of a vote more than you seems to me to be an unconvincing electoral system. I do not know of any electoral system in the world where you can win by less than one vote, although maybe there are some. I suspect the reason why there are no systems where you can win by less than one vote—

[Lord Campbell-Savours]

There is one.

[Lord Falconer of Thoroton]

The noble Lord, Lord Campbell-Savours, from a sedentary position, is contemplating whether there is one.

[Lord Hamilton of Epsom]

One of the valuable lessons that we learnt from the previous Government was that new computer systems cost fabulous sums of money and never seem to work properly.

[Lord Falconer of Thoroton]

I do not think that we needed the previous Government to tell us that. Nor do I think that all computer systems did not work. I do not know where computer systems are involved heavily in counting at the moment, but I accept the basic proposition that eventually they will be.

[Lord Campbell-Savours]

I think my noble and learned friend has missed one of the merits of the system. If the canvasser goes to the door and says to the voter, “I’m not asking for you to give me a full vote, but if you just vote for me as your third preference, I will get one third of the vote”, that is actually an incentive for those people who might worry that if they give their third preference weighted at 100 per cent in terms of value, they might actually be interfering with their first preference. I would have thought that that is quite a considerable argument.

[Lord Falconer of Thoroton]

It is a matter of saying, “How much do you like me?” and being told, “Not enough to give you the whole of my vote”. The answer could be maybe a quarter, a fifth or a sixth. The candidate says, “Unfortunately, there are only four candidates in this, so you can’t give me a sixth”. I do not think that it is realistic. I recognise the problem, but I do not favour the solution. I described the noble and learned Lord, Lord Wallace of Tankerness, as a gem but what I meant was a pearl.

[Lord Wallace of Tankerness]

I am not quite sure how to take that. I start by reassuring the House that although I have an interest in electoral systems, I cannot recall ever going to bed thinking about them. I doubt I will even do so tonight.

The noble Lord, Lord Rooker, has put forward a system that would involve some fractional vote. As I read his amendment, at first I thought, as the noble Lord, Lord Campbell-Savours understood it, that the second preference got half of a vote, the third preference got a third of a vote, the fourth preference a quarter of a vote, and so on. However, in the light of the comments the noble Lord made on 8 December, his intention may instead be that where there is no winner in the first round of counting, and a further round of counting is necessary, the value of any votes reallocated from the eliminated candidates to the candidates who are still in the count would be determined by the position the eliminated candidate had in the first round of counting. In other words, if the eliminated candidate finished fifth, the value of the reallocated vote would be one-fifth and so on. The fact that there is that dubiety in the amendment—when I first read it, I took it to mean the same as the noble Lord, Lord Campbell-Savours, obviously did—underlines the complexity that arises.

My noble friend Lord Lamont said that the important thing, in terms of simplicity for the voters, is that they are invited to number their candidates 1, 2, 3 and 4 and, if there is complexity, that is for the counters to work out. If we went down the road proposed by the noble Lord, Lord Rooker, there would be some complexity when we were being interviewed by Jeremy Paxman and we were trying to explain where the one-quarter vote and the one-fifth vote came into it. However, I also take the point that the noble Lords, Lord McAvoy and Lord Lipsey, and others made, that although at one level voters are invited to order their preferences as 1, 2, 3 and 4 so far as they wish, there nevertheless is a requirement that they have some understanding. They do not need to know all the complex details, but they need to have some understanding of how the system will work.

The purpose of the alternative vote with the system that we are proposing is that it gives equal weight to votes that are still in the count. That meets the clear, simple and practical tests that the noble and learned Lord, Lord Falconer, suggested that there should be. The amendment goes against that; it says that some votes should count for less. Where some would say that people “part company”, I would suggest instead that there is a misunderstanding of the position in failing to make the distinction between a preference and a vote, or in somehow suggesting that if, for the sake of argument, the BNP came last and were first to be eliminated, it would be the second preferences of the BNP’s vote that determined the outcome. In fact, it would be the voters’ second preferences that determined it.

It was said that everyone should have two votes and it is not right that, at the second count, someone has only one vote, whereas the person whose second preference has been transferred has two votes. In fact, at the second count, the person who expressed the first preference and who is still leading has a vote again. The vote still counts as a full vote in the second count.

--- Later in debate ---

[Lord Wallace of Tankerness]

That is the way that particular system works. It is the system we have used in this House for electing the Lord Speaker. I do not recall anyone challenging the validity of the system working for that purpose. It is the system that works in Scottish local government by-elections and I have never heard any suggestion that it is perverting the result.

What it could do is potentially dissuade voters from exercising the wider choice that is offered by the alternative vote. If it may be suggested that their subsequent preferences are somehow not going to have any weight at all, they may be deemed to be wasted votes. I would hope there was some degree of consensus that, whatever system you wish to adopt, the idea of having a wasted vote is one we should seek to avoid. By the proposal put forward in this amendment, some votes, if they are down to fractions, cease to have the value which I should like to see—

[Lord Falconer of Thoroton]

What if you have wasted a vote and vote for a candidate who does not succeed?

[Lord Wallace of Tankerness]

We could go into the merits of the first past the post system and there are a considerable number of wasted votes for candidates who do not succeed. In some cases it can be up to 40, 50 or 60 per cent of votes for candidates who do not win. Under the present system, anyone who votes for a candidate who wins, which is more than a majority of one, is technically described as a wasted vote, too. We are getting into the debate of the first past the post system against the alternative system. That is a matter for the referendum campaign. We could go round the houses debating the relative merits of the system, as I will do during the referendum campaign, but what I am seeking to do for the purposes of this amendment is to indicate that the reallocated votes of the fractional votes imports a degree of complexity and it means that votes do not have full value in subsequent counts, which would happen under the system proposed in the Bill.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Foulkes, is again rehearsing the kind of arguments that we will no doubt exchange in some television or radio studio in the coming weeks and months. I thank him for giving me forewarning of the arguments that he proposes to adopt. With regard to the amendment proposed by the noble Lord, Lord Rooker, as I have indicated, we do not favour an approach that would involve a reallocation of votes on a fractional basis. There are practical considerations. Nor, I understand, does the Front Bench opposite. There could be complications for voters in understanding it. I take the point that all the voter has to do is go into the polling station and write 1, 2, 3, 4. Nevertheless, understanding is required. I am not aware of anywhere else that uses the system proposed by the noble Lord, Lord Rooker. Therefore, I urge him to withdraw his amendment.

[Lord Falconer of Thoroton]

The noble and learned Lord is right that I do not support this amendment but he is completely wrong to say that we should not debate the anomalies in the AV system that is being proposed. As we keep saying, this is a compulsory referendum so the system that is being adopted must be subject to rigorous scrutiny to see what its shortcomings and anomalies are. The points that the noble Lord, Lord Foulkes, is making are inevitable when you are looking at the detail of a system.

[Lord Rooker]

My Lords, I decided not to move two earlier amendments today. I wanted to concentrate on the main cause, which is this one and I freely admit is not run of the mill. I came across a reference—only a reference—to the system in a footnote to some text I read recently. I thought it was the solution. One way or another, the central flaw in AV has been explained by the noble Lord, Lord Lamont, and my noble friend Lord Campbell-Savours. It will be incredibly difficult to explain to people.

I am not arguing about the text; I know what I understood and I explained what I wanted. It is the vote for the person who comes last, whether they are third, fourth or fifth, that gets transferred. It is true that that is the only vote that gets transferred. I might be accused of being completely unfair but I look on that allocation as a new vote. The others have not been altered. These are new votes coming into the system. If there were seven candidates, the one coming seventh would be knocked out. I have assumed that the bottom one would be knocked out but sometimes it might be the bottom two. The reallocation of the second choices of the voters who voted for the candidate who came seventh would be new votes for the top six. In a way, it is not the same election. That is what is so unfair about it. Nobody else’s second preference comes into play. As I say, there is an inherent difficulty in this system, which will be apparent only when we come to use it.

--- Later in debate ---

[Lord McAvoy]

My Lords, I support the amendment of my noble friend Lord Beecham but only in the context of where we are with that system. I believe very strongly that the first past the post system should stay and I do not want anyone to say—although, of course, I cannot stop anyone saying it—that supporting the amendment in the context of where we are necessarily means that I am deserting my support for first past the post.

This is a modest amendment. On the other hand, romantic candidates, Official Monster Raving Loony Party candidates and the “independent with a cause” candidate can all sound okay but, in a serious parliamentary democracy, is it right that such a small proportion of the vote should be used elsewhere? We are running serious elections for serious and responsible elected positions and, although having the freedom to stand for election and to campaign and so on is an absolute right, I do not think that that type of candidate who polls less than 5 per cent of the vote should be allowed to distort the electoral system and the democratic process. Then again, I keep asking myself why people get involved in that kind of party when it is all a lot of nonsense. Nevertheless, speaking as a realistic politician, I have to say that the amendment is before us and it needs to be discussed. However, if anyone wishes to use their charms on me, I am still willing to be convinced by an objection to my noble friend’s amendment.

My noble friend Lord Lipsey is great to listen to and I admire him. He is a formidable person but I do not think that he came up with any reason why the amendment should be opposed. He came up with an intellectual reason, and it is right and proper that that is aired. However, we have to take the real world into account and I do not think it is right for a party with a small percentage of the vote to distort the vote. In the context of what we are discussing, I have no hesitation in supporting my noble friend’s amendment.

[Lord Falconer of Thoroton]

The amendment of my noble friend Lord Beecham basically says that, if a candidate gets 5 per cent or less of the vote, the second preference votes for that candidate are not reallocated. I do not think that it necessarily follows that, if you get a low vote, your second preference votes should be any less valid than if you get a higher percentage of the vote. In certain circumstances, one can imagine Green Party candidates, for example, getting a very low vote—well below 5 per cent. The noble Lord, Lord Deben, in regarding Green Party candidates as more worthy than those of the Official Monster Raving Loony Party, is effectively making a value judgment about parties based only on the number of votes that they receive. It seems to me that it is very difficult to see a logical or intellectual basis for saying that 5 per cent or below is not an acceptable figure. Is there a political argument that says that 5 per cent or less is the sort of figure that extremist parties get? Possibly there is but, again, I believe that in relation to an electoral system it is dangerous to start characterising people whom you do not like as “extremist”. Of course, we all regard the BNP as extremist but there are other parties that some of us would regard as extremist and others would not. Therefore, although I understand the purpose of my noble friend’s amendment, I do not think that it stacks up, so I am afraid we will not support it.

[Lord Wallace of Tankerness]

My Lords, I agree with much of the analysis of the noble and learned Lord, Lord Falconer. Just because the total is a small figure, there is no reason why the second preference votes should carry any less value. It is also important to reflect, as the noble Lord, Lord Lipsey, said, that the purpose of a system is to provide a wide choice for voters. Under this system, every vote has equal value and is allocated to the candidate who is ranked highest in the preferences marked on the ballot paper and who is still in the contest. It is only fair to assume that in a second round the person marked as the first preference is the one whom the voter wishes to see come first, and it is important that that vote has full value.

[Lord Foulkes of Cumnock]

Can the Minister help me? I have had a quick look through the Bill and I cannot find any provision, although it is probably carried over from existing legislation, where candidates have to pay deposits and, if they get less than a percentage of the vote, they will lose that deposit. Is that provision still there? If that is the case, I am afraid my noble and learned friend, Lord Falconer, might have to rethink because, if someone is going to lose their deposit, why should the votes be transferred? The threshold for losing the deposit was set at that level for a particular reason. I do not remember when it was set and what the reason was, but presumably it was that the candidate had failed to convince enough electors.

[Lord Falconer of Thoroton]

Where you take someone’s deposit away because they get less than 5 per cent, you are in effect “punishing” the candidate for standing because he could not get enough support. You would be wrong to punish the people who vote for him.

[Lord Wallace of Tankerness]

The noble and learned Lord virtually took the words out of my mouth. There is a difference in that, if there is a penalty on the candidate, it does not follow that the penalty should then be on the voter who has in all good faith expressed a second preference. The noble Lord, Lord Lipsey, made the point that it could be a way to penalise smaller parties, or indeed, as he put it, local campaigns. Let us remember that at recent general elections in this country and at a Scottish election in 2003 a candidate opposing hospital closures won. It might not necessarily have been obvious at the outset that these people were going to get far more than 5 per cent, but the fact that they are perhaps not mainstream in no way means that they should be devalued. It may well put people off from voting for candidates who appear to be coming from a local campaign, or let us say a non-mainstream party, if it was thought in some way that the second preference was not going to count. The object, as the noble Lord, Lord Lipsey, said, is to broaden choice, and I fear that the amendment in the name of the noble Lord, Lord Beecham, would not contribute to that broader choice. I therefore urge him to withdraw his amendment.

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Moved by

[Lord Falconer of Thoroton]

53A: Clause 9, page 7, line 16, leave out “publicly”

[Lord Falconer of Thoroton]

My Lords, this takes us to a wholly new and equally riveting topic: namely, the process of making the results public in the course of an election count.

I refer your Lordships—those who are still awake—to the following:

“If no candidate is elected (as mentioned in rule 45A(2)) at the first stage of counting, the returning officer shall, immediately after that stage, record and make publicly available the following information … the number of first-preference votes obtained by each candidate … which candidate was eliminated; the number of rejected ballot papers”,

so we will have a very different series of announcements during the course of an election. Obviously what happens now is that the returning officer says what votes everyone has in the first past the post system. We know who has won and who has lost.

On the basis of new Section 45B(1), I envisage after the first round of counting, in which most prospective parliamentary candidates will not get 50 per cent of the votes, that there will be a public announcement in each constituency of where it has got to. I take that from the words:

“If no candidate is elected … the returning officer shall, immediately after that stage, record and make publicly available the following information … the number of first-preference votes … which candidate was eliminated”,

and so on. The public will therefore know how the vote is going in each constituency and where it has got to. My knowledge of how the system worked most recently was in the Labour Party leadership election when they went through the whole calculation and then announced what had happened at each stage, so there was transparency about what happened at each stage but it occurred only at the end of the process.

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[Lord King of Bridgwater]

Do I understand the noble and learned Lord to be actually suggesting that instead of this being made publicly available, it should be given to the representatives of the candidates so that it can be done by leak?

[Lord Falconer of Thoroton]

A lot of information is given to candidates and their representatives at the moment that is not leaked, entirely legitimately, and not made public. I would like to hear the Government’s position on this.

[Lord Wallace of Tankerness]

My Lords, as the noble and learned Lord has indicated, these amendments provide that if no candidate is elected at the first stage of counting—that is, if no candidate secures more than 50 per cent of first-preference votes—the returning officer would not make publicly available certain specified information about the state of play at that stage, including the number of first preference votes obtained by each candidate and which candidate was eliminated, but would make the information available to candidates and their representatives only. I have a lot of sympathy with the intervention by the noble Lord, Lord King. It would soon leak out, and I think it is far better that it is done publicly.

The clause is not prescriptive, so it is up to the returning officer in each case how he or she will make that information public. The purpose is so that there is transparency. There is no requirement for an announcement to be made, although the amendment in the name of the noble Lord, Lord Snape, that was recently not moved would have required a public announcement to have been made, and the specified information, which would include the details of the number of votes obtained by each candidate and the candidate who had been eliminated, could well be displayed, for example at the end of each counting stage, in written form or could be relayed on television screens at a count venue.

I was not present at any count on the morning of the last Scottish election because I was in radio studios with the noble Lord, Lord Foulkes, but I understand that at least at one count that my wife attended in Orkney the votes—based on a slightly different system—were being shown on a screen as they were being counted, so it is possible for that information to be made available. I can make it very clear that this is to ensure that the candidate, the media, accredited observers and other persons present at the count are aware of the state of play at the end of the counting stage and that the count is conducted in an open and transparent manner. I hope with that reassurance that it is intended to promote transparency, that it is not prescriptive, that it is a matter for the returning officer as to how that information is made public and that there are ways of doing it in written form as well as by making an announcement, that the noble and learned Lord will not press his amendment.

[Lord Falconer of Thoroton]

I found that a helpful and clear description which, from the sound of it, is a sensible way of doing this. However, I shall read in Hansard what he has said before making a final decision.

Amendment 53A withdrawn.

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Moved by

[Lord Falconer of Thoroton]

53D: Clause 9, page 7, leave out lines 33 to 42

[Lord Falconer of Thoroton]

Clause 9(4) reads:

“The Minister may by order make any amendments to primary or secondary legislation (whenever passed or made) that are consequential on amendments made by this section or Schedule 10”.

It gives the Government a power to amend any section of primary legislation or secondary legislation in order to give effect to these provisions. Normally, we would expect to see the provisions that are being amended so that Parliament has an opportunity to consider them. Why are we not seeing the respective provisions that are being amended, and does this include the power to amend Acts of Parliament made after the passage of this Act? I beg to move.

[Lord Wallace of Tankerness]

My Lords, I can reassure the noble and learned Lord and the Committee that the breadth of the power is limited to amendments that are consequential to the changes being made by Clause 9 and Schedule 10. It is envisaged that in order to introduce the alternative vote system, should that be the wish of the referendum, amendments will be required to provisions in existing secondary legislation which concern the conduct of United Kingdom parliamentary elections. For example, changes will need to be made to certain forms that are prescribed for use at a UK parliamentary election including the poll card issued to electors prior to polling day to provide them with information on how to exercise their vote at the election, and the postal voting statement which postal voters must complete and return with their postal vote, and which again includes information about casting their votes. These forms are set out in secondary legislation. While we believe that all the necessary primary legislative provisions are in the Bill, it seems sensible not to have our hands tied. This power therefore covers any possible consequential changes to primary legislation that may be deemed necessary to implement the alternative vote.

I can offer a reassurance to your Lordships’ House that, as Clause 9 is currently drafted, before making an order under subsection (4), the Minister would be required to consult the Electoral Commission, which would give an independent view on any change. Such an order would be subject to the affirmative resolution procedure and would therefore have to be debated and approved in each House. I can confirm that it could allow amendments to be made to Acts passed before and after the Bill, but as I have indicated, this is for technical issues and not to change any matters of policy. In our memorandum concerning the delegated powers in the Bill for the Delegated Powers and Regulatory Reform Committee, we covered the order-making power in Clause 9.

[Lord Wallace of Tankerness]

I do not think that that would be an appropriate use of the power. It is important that when Parliament determines what the system should be, that is the system which is put to the people in the referendum and should not be tweaked. As I have indicated, this makes provision for amendments to primary or secondary legislation to be made that are consequential and necessitated by this clause or by Schedule 10. As I have indicated, they are related to things like the poll card or the information that goes with postal votes.

Just before the noble Lord, Lord Campbell-Savours, intervened, I was going to end by saying that we have not been made aware that the Delegated Powers and Regulatory Reform Committee has made any critical or adverse comments in respect of these provisions. We believe that they are necessary and appropriate. In the event of a yes vote in the referendum, they will facilitate the implementation of the alternative vote.

[Lord Falconer of Thoroton]

I quite understand the noble and learned Lord’s position in relation to secondary legislation. Clause 9(7) states:

“An order under subsection (4) may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament”.

So we will get an opportunity to debate it.

Does the noble and learned Lord have in mind some provisions of primary legislation? He rather glossed over primary legislation. If changes in primary legislation are envisaged, why are we not being told what they are so that we can address them head on?

[Lord Wallace of Tankerness]

As I indicated—perhaps I did not make it clear enough—we believe that the necessary primary legislative provisions are in the Bill and therefore we do not have anything in mind. I have indicated some of the provisions which are in secondary legislation, but we believe that the primary legislative provisions are already in the Bill. However, it seemed sensible to ensure that we did not have our hands tied if something was to arise.

[Lord Falconer of Thoroton]

That is an interesting answer. Does the noble and learned Lord think it would be sensible not to include this power in relation to primary legislation? It is dangerous to include in a Bill a power to amend primary legislation when you have no primary legislation in mind but think it might be useful later on—particularly in relation to future legislation where you think you might have made a mistake and you then want to use the power to amend it. It appears to circumvent the important scrutiny that this House and the other place give to primary legislation. Will the noble and learned Lord think again about primary legislation? I am happy with secondary legislation.

Lord Wallace of Tankerness: I hear what the noble and learned Lord says. As I have indicated, the measure would relate to consequential amendments, but I am prepared to give it further consideration as regards primary legislation. As I said, it is there so that we do not find ourselves in a position where it is discovered that primary legislation could somehow prevent effective implementation of the affirmative vote in a referendum. I shall certainly reflect on what the noble and learned Lord has said with regard to primary legislation and I hope that he will withdraw the amendment.

[Lord Falconer of Thoroton]

My Lords, on the basis of the generous assurance given by the noble and learned Lord, Lord Wallace of Tankerness, that he will consider what I have said in relation to primary legislation, of course I shall withdraw the amendment.

Amendment 53D withdrawn.

--- Later in debate ---

[Lord Campbell-Savours]

I shall very briefly intervene and just make a comment before this debate closes this morning. This amendment would provide for making an order to amend the primary or secondary legislation consequential on amendments made by this clause. Any such award would have to be the subject of consultation with the Electoral Commission and also with the Northern Ireland Assembly, the Welsh Assembly and the Scottish Parliament. The question is, “Why consultation?”. I shall address my remarks to the two new noble Lords elevated to this House today, the noble Lords, Lord Lingfield and Lord Dobbs. This is a bit of a baptism of fire for them, really; they must be wondering what they have come into. It is a very good question, and the answer is very simple. We are dealing with a Bill that has been the subject of no consultation whatever. There was no inquiry, no prior scrutiny and no real notice of what was coming, and we object. We are now scrutinising this legislation line by line. Much of this could have been avoided if we had been through a proper process. What those two noble Lords are now seeing is just an abuse of Parliament by way of introducing a Bill in this way. I would advise them—and one hopes that they will stay here for many years to come—that if ever they are in a position to influence events in future, to advise their colleagues not to introduce legislation in this way in the future. Because this will go on for weeks, and only because the process that led to this legislation was wrong. That is all that I have to say.

[Lord Falconer of Thoroton]

My Lords, the effect of the amendment is that before making an order under Clause 9(4), which allows the Government to,

“make any amendments to primary or secondary legislation … that are consequential on amendments made by this section or Schedule 10”.

At the moment, the Minister has to consult the Electoral Commission. Inevitably, amendments made under Clause 9(4) could affect the position in relation to the Welsh Assembly or the Scottish Parliament. As to how they might affect primary legislation—I see the noble and learned Lord, Lord Wallace of Tankerness, looking troubled by that. He has just said very candidly that he has no idea what primary legislation might be amended by using Clause 9(4). His inability to understand that it might affect the Scottish Parliament or the Welsh Assembly is surprising, I have to say.

Before you produce an order that amends primary legislation, which currently cannot be identified—I am not criticising the noble and learned Lord for that—and which may not even be passed, because it may include future legislation, what is wrong with consulting the Scottish Parliament or the Welsh Assembly? We have had read to us the views of the Scottish Parliament and the Welsh Assembly on a number of occasions about the fact that they were not consulted about the date of the referendum, which is taking place on the same day as the Scottish Parliament or Welsh Assembly elections. They were plainly upset by that. What is the purpose of not consulting? What is the anxiety about consulting? We are talking about a national electoral system here, and a national vote. Surely the Scottish Parliament might have views that could be taken into account. I ask the noble and learned Lord to take that position into account. Points have been made about what has happened this evening. It is four minutes past one now. My understanding of how the House operates is that the Government Whip and Leader consult and then decide what to do. The Leader of the House today appeared not even to consult his own Chief Whip about sitting until four minutes past one. The reason I say that is because I am told by the Opposition Chief Whip that the noble Baroness was proposing that we went on for one more amendment. It might well have been sensible to go on to four minutes past one, but we have done it without, for example, giving the staff warning in advance and without there being proper consultation. All I say to the Leader of the House, who is much liked in the House, is please consult before going on till five past one.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Foulkes, has invited me to give a description of the working of the Scottish Parliament voting system. I will resist that. I do not think that it is necessary. He came to be elected, I suspect, because more Labour members lost their first past the post seats than he had anticipated in the Lothian region. If he has any queries about the system, it is a system which of course he agreed in the constitutional convention. He was a member of the Government that brought it forward and passed it as indeed that Government proposed in primary legislation separate seats for Orkney and Shetland, which I certainly supported, but it was of course a measure which was brought forward in a Bill from a Labour Government. What we are dealing with—