Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Thursday 20th January 2011 Lords Chamber

[Lord Grocott]

I am not intervening on the noble Lord and I do not expect him to respond, but we are in the Committee stage and he has raised an issue that lies absolutely at the heart of one of the fundamental weaknesses of the Bill. I could not believe it when I saw that a paragraph in this Bill is headed “Exempt constituencies”, although the word used may be “Excepted”. Without any attempt to relate them to any other part of the Bill, two constituencies were going to be exempted just like that. As soon as I saw that, I must say that I and a number of noble friends thought, “This Bill has a very big piece of hybridity in it”. It has all the basic characteristics of a hybrid Bill because one group is being treated separately for no discernible reason. The Bill gives no explanation of why it is being made into a category.

That is a weakness in terms of how Bills ought to be drafted. Here let me say quite clearly, especially knowing that the noble and learned Lord, Lord Wallace, is to wind up the debate, that I do not object in the least to the Western Isles or to Orkney and Shetland having their own constituencies because of their characteristics. I fully support that and think it is absolutely right, but as soon as you trespass into that kind of territory when drafting legislation, it is obvious that there is not a single constituency in England, Scotland, Wales or Northern Ireland that could not make a case for their unique characteristics to be treated as a constituency in its own right and being one of the excepted cases. It is bad drafting and bad politics because it would be so easy to put down an amendment for every single constituency.

I am sure that, at his convenience, the noble and learned Lord, Lord Wallace, could draft a clause that would allow for Orkney and Shetland quite properly to be a constituency in its own right. He could write it in general terms, which is how you should write legislation, and it would probably include a number of other exempted constituencies, but at least there would be some rationale for what is being done. There is none in this paragraph as it stands. It is yet a further example, but a particularly glaring one, of why this is a bad Bill that has been badly drafted.

[Lord Falconer of Thoroton]

My Lords, that exchange at the end goes to the heart of the issue in relation to these amendments. I should indicate which amendments I understand we are considering, starting with Amendment 78B, the amendment tabled by the noble Lord, Lord Brooke of Sutton Mandeville, that argues for a classification of constituencies that fall in the special authorities category. I think the name of the noble Lord, Lord Jenkin, is on that, as is that of the noble Lord, Lord Newby. We are considering Amendment 80, tabled by the noble Lord, Lord Foulkes of Cumnock, which says that there shall be five constituencies in the city of Edinburgh. We are considering Amendment 81, tabled by the noble Lord, Lord Martin of Springburn, which argues that a constituency called Argyll and Bute should be preserved. We are not, obviously, considering Amendment 82, tabled by the noble Lord, Lord Martin of Springburn, which is in the group, because it is about the Isle of Wight. We are not considering Amendment 85 because it is about the Isle of Wight. We are considering Amendment 85A, which is my noble friend Lord Grocott’s amendment dealing with Telford. We are considering my noble friend Lady Hayter’s Amendment 85C, which argues that there should be a constituency that includes the whole of the City of London. We have not had argued my noble friend Lord Liddle’s amendment in relation to Cumbria. I will only deal with the amendments that I have just referred to, going through the list.

The Government have consistently argued that the core principle underpinning their proposed new rule for drawing parliamentary constituencies is equality. The Bill is designed, within a very narrow tolerance, to create equal-sized seats. As we have said repeatedly, we on this side of the House agree with the principle of creating more equal-sized seats but, as we have consistently pointed out, the Bill sets out this objective in a clumsy and unfair fashion. As we have heard, and will continue to hear, it aims to equalise seats on the basis of an unequal electoral register and it aims to do so in a way that will override all other factors such as geography, community and history, which ought to be taken into account in some way when designing patterns of representation. Yet, a curiosity about the Bill is that while the principle of numerical equalisation is deemed to be the trump card in almost all cases, there are some places and some circumstances where the iron law of uniform statistics has been disregarded.

For example, a new rule on the maximum territorial extent of a constituency has been invented, accompanied by a “get out of jail” free clause for at least one Scottish Highland seat from the requirement to adhere to the electoral quota. Alongside that, in new paragraph 6 in Clause 11 is a further exemption from the electoral quota, which we have heard a lot about, for two Scottish island seats—Orkney and Shetland and the Western Isles are to be preserved, as it were, in aspic. Despite having substantially fewer voters than the proposed new quota of 75,000—in the case of Orkney and Shetland I think the electorate is around 37,000 and in the Western Isles it is just 21,000—these constituencies are deemed to warrant a special status in the Bill. I completely agree with my noble friend Lord Grocott that it is obviously sensible—but I also strongly agree with the noble Lord, Lord Tyler, that where you are dealing with any public Bill, but most especially when you are dealing with a constitutional Bill, there must be some principle involved. What is the principle involved such that these two should be preserved constituencies? Is it that they are island constituencies? That cannot be the Government’s principle, because the Government explicitly rejected exemptions for both Anglesey and the Isle of Wight. Is it unique geographical circumstances? It cannot be, because there are more islands that are populated in Argyll and Bute than there are in either the Western Isles or Orkney and Shetland. Is it because of the particular historical status of these two constituencies? It cannot be, because the City of London has been mentioned in electoral legislation for more than 100 years and the Western Isles was first mentioned in electoral legislation only 70 years ago.

Without a principle, it is very difficult to understand why special favours have been granted. I do not know whether noble Lords remember—many noble Lords were not in the House when it happened—but at the very beginning of this process I admitted to the House that this is a hybrid Bill because two constituencies were being taken out, not on the basis of principle, but on the basis that they were being treated differently from the rest of the country. I do not want to go over the argument of whether it is hybrid. My own view remains that it is hybrid and that it is absolutely clear that hybridity can come not just from property interests, but from interests such as a desire to live in a particular place, as occurred in the previous case concerning Gatwick Airport. Put all that to one side. The consequence of the Government resisting the hybridity Motion and the consequence of there being no principle underlying these two exceptions mean that we are now in the position that we are in.

Distinguished Members of this House, such as the noble Lord, Lord Brooke of Sutton Mandeville, make persuasive arguments for special treatment for other places. The argument that he makes, that the noble Lord, Lord Foulkes, makes for the capital city of Scotland or that the noble Lord, Lord Martin of Springburn, makes are all incredibly persuasive. With respect to my noble friend Lord Grocott, I am not sure that the argument for Telford was quite as strong as the others, but those ones were very persuasive and that is because there is no principle that one can legitimately identify. There have been a lot of attempts to identify a principle. I have distilled the two that have been given so far by Mr Mark Harper in the other place and by Mr Nicholas Clegg and I understand them to be island communities, geography and history. They just do not stack up as an explanation.

I understand the foundation of the Bill to be a pamphlet written by Mr Andrew Tyrie, Conservative Member of Parliament, who is described as the brains behind the boundary review policy. In his pamphlet, Pruning the Politicians, Mr Tyrie wrote that special considerations,

“should be abolished … The principle of equal representation is too important to be compromised by get-outs”.

Not for the first time, I disagree strongly with Mr Tyrie. Although we should create more equal-sized seats, we should do so in a way that, in special cases, continues to allow factors other than pure statistics to influence the shape of constituencies. The best solution would be for the Government to bring forward the proposal that some independent body identify a very small number of exceptions to preserve the principle of equality, rather than the situation we have at the moment, where two political parties have come together and agreed these two exceptions.

I do not know the basis on which these two exceptions were agreed. Were they agreed in the coalition agreement talks? Were they agreed separately? What was the basis on which the agreement was reached? I think that one is a Scottish National Party seat and one a Liberal Democrat seat. I think that the exception in relation to size particularly helps two Liberal Democrat seats in the north of Scotland, so it would appear that two of the exceptions help the Liberal Democrats.

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[Lord Judd]

Does my noble friend agree that once again, as we consider these amendments, we see that the Bill is strategically flawed? The British public, the electorate of the whole United Kingdom, have not seen the case for the change, let alone the details proposed for the change. In a democracy that was really sound, there would be an opportunity for an expression of opinion by the electorate of the whole United Kingdom on what was being proposed. If we are taking upon ourselves the responsibility for making the change, it is more important than ever that all the rationale for what is being done is absolutely explicable and spelled out. What I fear is that, at a time when public confidence in the political system is at a pretty low ebb, this will again be seen as arrogance on the part of a closed political community in Westminster.

[Lord Falconer of Thoroton]

I agree with every word of that. The detailed point is that, if you were minded to have exceptions, surely the starting point would have been a public consultation in which people who thought that their area was entitled to special favours could have put their arguments, which could then at least have been seen by the public. However, because this Bill has had no public consultation and no pre-legislative scrutiny, that opportunity has not existed.

[Lord Wallace of Tankerness]

My Lords, I come now to address the series of amendments that have been spoken to or moved. I agree with the noble and learned Lord, Lord Falconer of Thoroton, about which amendments we are dealing with, except to say that the initial amendment, which was moved by my noble friend Lord Brooke of Sutton Mandeville, was Amendment 66C. Linked with that was the amendment that relates to the exceptions or the preserved constituencies, to which the noble and learned Lord devoted most of his remarks. However, we are on common ground as to which amendments we are discussing.

On numerous occasions during the Committee stage of this Bill, I have spoken about the principles behind the Government’s approach and our belief in equal votes—one vote, one value. As my noble friend Lord Tyler indicated, that is the principle and it is important that the exceptions to it are limited. I shall therefore deal with the exceptions first. They are the constituencies of Orkney and Shetland and what used to be referred to as the Western Isles—I am not a Gaelic speaker and I do not want to disgrace the Gaelic language by even attempting the Gaelic name.

The noble Lord, Lord Grocott, echoed by the noble and learned Lord, Lord Falconer, again raised the question of hybridity. Noble Lords who were present at the outset of these debates, before Second Reading, will recall that that matter was thoroughly debated in this House. The Clerks gave the advice that the Bill was not hybrid and the House had its say on the matter, rejecting the argument, however eloquently and persuasively put by the noble and learned Lord, Lord Falconer, that the Bill was hybrid.

The noble and learned Lord asked why the Bill makes the exceptions of the two preserved constituencies. For anyone who has looked at a map, the reason is probably blindingly obvious. The constituencies are at the most extreme parts of our United Kingdom. If anyone has any doubt, let me say that Orkney and Shetland are at the very top and go far north; they are not in a box somewhere in the Moray Firth—my former constituents used to be very irritated when it looked as though the distance between Shetland and Aberdeen was very small. Indeed, the fact that they are so far away is a factor. We are talking not just about geography but about extreme geography, where the dispersed island groups cannot readily be combined with the mainland. It takes 12 hours by ferry from Lerwick in Shetland to Aberdeen on the Scottish mainland. By any stretch of the imagination, that situation is extreme.

We could contrast that with other islands that are already combined with mainland constituencies. Argyll and Bute is one example; it comprises a substantial mainland area together with islands. The constituency of St Ives, which is represented by my honourable friend Mr Andrew George, includes the Scilly Isles. The constituency of, I think, Cunninghame North, which includes Arran and, I suspect, the Cumbraes, is represented by—I am sorry, I cannot remember.

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Moved by

[Lord Falconer of Thoroton]

That the House do now resume.

[Lord Falconer of Thoroton]

My Lords, I beg to move that the House do now resume. We had, as everyone in the Chamber knows, 21 hours of debate on this issue on Monday and Tuesday, stopping at 1 pm. We then had another few hours on Tuesday evening and, through Wednesday night into Thursday morning in this sitting, we have now had between seven and eight hours on the Bill. Between now and the date by which the Government have said that the Bill has to be out of Parliament, there are nine legislating days in the Lords. The Bill has been listed for Monday and Wednesday of next week for the Committee stage, making a total of 13 days in Committee.

On the basis that the Report stage takes between a third and half of the time taken in Committee, there are to be between four and six Report days. On the basis that Third Reading takes between one and three days and, because this is an important constitutional Bill, there are the usual gaps between the two stages yet to come—Committee and Report, and Report and Third Reading—there is absolutely no prospect that this Bill will come out of the House on 16 February.

We have offered for the Bill to be split to allow the referendum to go ahead on 5 May, which the Government have said is their desire. We have no desire to stop the referendum. That offer has been rejected by all, up to and including the Prime Minister of this country, and therefore some other solution is required. It is a solution that needs to be negotiated between the parties. The sooner serious negotiations start, the better. I make it clear on behalf of the Labour Party and the Opposition that we are keen to engage in serious negotiations.

This process of going deep into the night should be brought to an end. As I look across the Chamber, I must say, with the greatest respect, that half the people on this side and half the people on the other side are half asleep; probably half the people who are supposed to be negotiating are getting more and more exhausted. There should be an adjournment and cool heads should start to kick in. The way in which the House of Lords always pulls back from the brink is by negotiation. As the noble and learned Lord, Lord Mackay of Clashfern, urged earlier in the day, as the noble Lord, Lord Low, urged during the 21-hour session and again today, and as is the view of many on all sides of the House, we should stop what has been described as legislating until we drop and show some leadership by starting to negotiate. For all those reasons, I urge the House to resume.

[Lord Soley]

I support that strongly. I have watched with growing concern the way in which this has been handled by the Government. It is mind-blowing that the Government, and the two political parties that make up the Government, are prepared to do so much damage to the reputation of the House of Lords.

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[Lord Falconer of Thoroton]

It is pretty clear what my noble friend Lord Foulkes of Cumnock is trying to do. It is pretty far reaching and I do not think, frankly, that it is sensible.

[Lord Foulkes of Cumnock]

Thank you.

[Lord Falconer of Thoroton]

I say that with the greatest respect. As I understand it, Amendment 67C proposes that every constituency shall be in either Scotland, Wales, Northern Ireland or England. The words,

“together with the home and overseas dependent territories”,

mean either that a constituency also has to be completely within the home or overseas dependent territories, or that when you add the people to a constituency in Scotland, Wales, Northern Ireland or England from the home or overseas dependent territories, that constituency is wholly in one of Scotland, Wales, Northern Ireland or England. It leaves open the question of how you identify the people from the dependent territories, whether by connection with a constituency in the UK or by reference to their dependent territory.

The current position is that if you are from a home or overseas dependent territory and you are resident in the UK, and you have either leave to remain or do not require leave to remain, you can vote in a UK general election. What my noble friend is in effect suggesting is that we should by this Bill, without consultation and almost certainly against the wishes of the majority of most of the members of the home and overseas dependent territories, absorb them into the United Kingdom. The current position is that while many of them have allegiance to the Crown, they are not governed by our Executive or our Parliament. From my experience—I was the Minister responsible for the home dependent territories for a considerable period—they would be outraged by the suggestion of such a change being made in this way. I know that my noble friend wished only to raise a debate on this matter but from their point of view—they will read Hansard—it is absolutely critical that we make it clear what the effect of the amendment is, and I make it completely clear that we on this side of the House oppose it.

[Lord Rooker]

May I give my noble and learned friend an example from one of my former ministerial roles that comes to mind? I have never been to the Isle of Man, which is not a member of the EU. I did not realise that, during the 10-year ban on UK beef, beef grown in the Isle of Man was exported through England to Europe because it was not subject to the beef ban. It was not a member of the EU so it was not subject to the ban. It would not have wanted to be subject to it either. There must be other complications in other areas of policy that would have the same disastrous consequences. I agree with my noble and learned friend that the amendment would lead to incorporation into the UK, and consequently membership of the EU. The Isle of Man might not want that, given all its ramifications. I give that practical example as that 10-year ban would have destroyed its beef trade, as it destroyed that of UK farmers.

[Lord Falconer of Thoroton]

My noble friend Lord Rooker gives just one example. From my experience of Jersey, Guernsey and the Isle of Man, the idea that they could suddenly find themselves in the European Union, with ramifications not just for the sale of beef but, for example, in relation to imposts in the form of tax and VAT, would be for them a major issue and, I anticipate, something to which they would object.

[Baroness Farrington of Ribbleton]

My Lords, would my noble and learned friend Lord Falconer care to ponder whether the noble Lord, Lord Greaves, who is on record in Lancashire as being totally opposed to people interfering with the boundary between Lancashire and Yorkshire, has been consulted on whether the Isle of Man could suddenly be added to the county of Lancashire?

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[Lord Falconer of Thoroton]

I have not had the opportunity of discussing this matter with the noble Lord, Lord Greaves, but I imagine he would oppose it.

My position is clear on Amendment 67C. As to Amendment 77A, the proposed new paragraph 5(2) on page 10 of the Bill states that under the new arrangements the Boundary Commission for England,

“may take into account, if and to such extent as they think fit, boundaries of the electoral regions specified in Schedule 1 to the European Parliamentary Elections Act 2002”.

It then states, in brackets, that when having regard to that you should ignore Gibraltar. Obviously the reason you should ignore Gibraltar is because it has no part to play in elections to our national Parliament.

The second amendment proposed by the noble Lord, Lord Foulkes, suggests that we should have regard to Gibraltar and European parliamentary boundaries when considering what the national constituency boundaries should be. For example, the Boundary Commission might consider that a European Parliament boundary here would be a good place for a constituency boundary. I do not object to regard being paid to the European boundaries but, because I oppose the first part, I think they should be kept separate—this applies to Gibraltar as much as to everywhere else—and we should not have regard to Gibraltar in paragraph 5(2). Therefore, on behalf of the Opposition, I also oppose Amendment 77A, which I am sure was only a probing amendment.

[Lord Wallace of Tankerness]

My Lords, it is an interesting probing at this time of the morning. I am sure that it will come as no surprise to the noble Lord, Lord Foulkes, that the Government do not support his amendment because there are both principled and practical objections to it. The principled objection is that these territories are separate from the United Kingdom—their people are represented by legislatures in their own territory—and I certainly join the noble and learned Lord, Lord Falconer of Thoroton, in saying that I suspect there would be considerable opposition for such an incorporation without any consultation.

The practical difficulty is that residents of the overseas territories may not be on the United Kingdom parliamentary register on the basis of an address in these territories. The noble and learned Lord indicated the basis on which people can be registered to vote in the United Kingdom. It is formed of British, Republic of Ireland and qualifying Commonwealth citizens aged over 18 who are not subject to any legal incapacity. Anyone resident in the territories who is entitled to register in a parliamentary register would do so from a UK address, not from an address in the territory itself. As Gibraltar is not part of the United Kingdom, I also do not understand why the Boundary Commission should have any regard to it. I therefore share the opposition to that amendment.

The noble Lord has raised an interesting issue, and he may wish to return to it on a more appropriate occasion, but I am afraid that I can give him no comfort if he seeks to pursue the amendment. I ask him to withdraw it.