Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 7th February 2011 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

8: Clause 5, page 4, line 7, after “a” insert “referendum campaign”

[Lord Falconer of Thoroton]

My Lords, Amendments 8 and 9 are in my name and the name of my noble friend Lord Bach. Clause 5 refers to exceptions to the spending rules in the Political Parties, Elections and Referendums Act 2000 for the proposed referendum on the voting system for the House of Commons. Amendment 8, the first in this group, seeks to emphasise that the broadcasts that are exempted are referendum campaign broadcasts. We contest that referendum-related materials and party election materials must be differentiated. Our second amendment, Amendment 9, picks up the same point. If political parties are allowed to use their election broadcasts to argue the merits of the referendum, that could lead to claims that the argument has been weighted more on one side than the other. Once you can use an election broadcast to promote views on one side or other of the AV or non-AV debate, the playing field is no longer equal. Party election broadcasts, which are an opportunity for all parties, should be about the elections for individual office holders, not the referendum.

The Political Parties, Elections and Referendums Act 2000 and the Bill seek to create a level playing field where expenditure should not be the determinant of who wins. If that can be got around, because of the combination aspect, it leaves the possibility of the expenditure being distorted. Everyone agrees that the referendum result should be determined on its merits, not on who can spend the most money. The changes that are recommended by our amendments are important. It should be in the interest of all parties and none that clarity over the administration of press coverage and expenses during the election period is maximised.

My noble friend Lord Campbell-Savours, who I am happy to see in his place, said, when this issue was debated in Committee that,

“it is vital that we have a level playing field wherever possible during the referendum campaign”.—[Official Report, 15/12/10; col. 617.]

I trust that your Lordships’ House would agree.

In Committee, the Minister, the noble Lord, Lord McNally, saw the importance of the issue. He said:

“We recognise that there is an issue to be discussed”.

I can inform the House that there have been no such discussions. We have not been approached by the Minister or by his officials, and I have seen no draft amendment. The noble Lord, Lord McNally, continued:

“There would have to be discussions without preconditions on either side. If the noble and learned Lord wishes to press the amendment, I shall resist—and that would be a mistake for both of us”.—[Official Report, 15/12/10; col. 621-22.]

I agree.

We withdrew our amendment in Committee, relying on the good faith of the Minister, but there has been nothing since then. I read the noble Lord, Lord McNally, whom I admire and like and am happy to see back, as being someone who would do something about this, so I would be keen to hear from the noble and learned Lord, Lord Wallace of Tankerness—I assume that he will be responding to this, only because there is no other Minister on the Bench apart from him—what has happened about this.

The position in Committee was that the Government were acknowledging that there was an issue—namely, that a political party could use its party political broadcast to promote one side or the other in the referendum campaign, thereby getting around the expenditure limits, which we all agreed to be equal for everyone. That is why I withdrew my amendment, but we have heard nothing. Perhaps the Minister could enlighten us about what happened.

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[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, these are important amendments. I immediately take the point made by the noble and learned Lord on the follow-up to Committee. I regret any discourtesy that has been felt by the noble and learned Lord. While he was making his comments, I had the draft of a letter to him; I have now had it confirmed by the Leader of the House that it has been issued. It is dated with today’s date, so he might not have received it yet, but it is a fairly comprehensive letter that runs to almost three pages. I will not read it out or put it on the record. I apologise if the noble and learned Lord has not yet received it.

[Lord Falconer of Thoroton]

What on earth is the point of sending me a letter, which I have not had a chance to consider, that arrives after Report has started?

[Lord Wallace of Tankerness]

I can only confirm the factual position. I fully take the point that the noble and learned Lord has not yet had an opportunity to consider the letter. I have no idea when it was put into the system. I saw a draft earlier but was not in a position until now to confirm that it had been issued. As I indicated, I apologise for any discourtesy to the noble and learned Lord.

I turn to the two amendments. On the first one, as we explained in Committee, the Government introduced the clause to which the amendments relate in the other place after the Political and Constitutional Reform Committee identified an ambiguity in the current legislation—the Political Parties, Elections and Referendums Act 2000—over whether publication of material about the referendum by a media organisation in favour of a specific result would be caught by the spending restrictions that apply to the campaigning groups. Clause 5 provides that the costs of covering and reporting on the referendum in the media are not referendum expenses. In the interests of the freedom of the press, it would be wrong for the spending restrictions to apply in this way. I think that is common ground across the House.

The amendment moved by the noble and learned Lord seeks to add “referendum campaign” before “broadcasts” to line 7 of page 4. This would go against Schedule 13 to the PPER Act 2000, which sets out that,

“agency fees, design costs and other costs in connection with preparing or producing”,

referendum campaign broadcasts are to be included as referendum expenses. I am not sure whether it was the noble and learned Lord’s intention to exempt such expenses from counting, but the Government do not agree that this should be the case. Designated lead campaign organisations are entitled to free referendum campaign broadcasts in terms of airtime, but the expenses incurred in respect of the production of these referendum campaign broadcasts do and should count towards referendum expenses. Therefore, it would not be right to accept this amendment, which would exempt these production expenses from counting.

Another reason why we do not agree with the first amendment is that it would bring back the ambiguity that we sought to remove through Clause 5 by limiting the provision to referendum broadcasts only. It would not therefore cover other types of broadcast, as it was designed to when we added it to the Bill. The result would be to reactivate the question of whether any broadcast other than referendum campaign broadcasts would be caught by the spending restrictions as they are currently drawn. It would then be ambiguous as to what would and would not count as referendum expenses in other types of BBC or Sianel Pedwar Cymru broadcasts—such as news programmes and politics programmes—other than those for the referendum campaign. We all agree that the media play a vital role in building public awareness and presenting facts and opinions on the matters raised by the poll. This amendment could prevent media comment if the spending limit for referendum expenses was reached. This would not be right. That was also the view of the Political and Constitutional Reform Committee in the other place. We believe that accepting this amendment would go against the Committee.

We agreed in Committee to consider carefully the second amendment. I can assure the House that the Government have done so. I regret the lateness of the letter, but the position is set out in it. The Government agree with the principle that party election broadcasts should not be used as referendum campaign broadcasts. As was highlighted in Committee, there is a clear definition of what constitutes a referendum campaign broadcast under Section 127 of the Political Parties, Elections and Referendums Act—to which the noble Lord, Lord Soley, drew our attention. Any broadcast whose purpose or main purpose is to procure or promote an outcome in the referendum is a referendum campaign broadcast. Referendum campaign broadcasts can be made only by the designated lead campaign organisations. The current law therefore already provides that the purposes—or main purpose—of party election broadcasts must not be to promote or procure a referendum outcome. Therefore, we can be assured that party election broadcasts cannot be used by political parties as a significant referendum campaign opportunity. In a moment, I will come to the crucial point that the noble Lord, Lord Soley, raised.

Section 127 of the PPER Act provides a safeguard against a political party using a party election broadcast as a referendum campaign broadcast. However, it also provides appropriate leeway for broadcasters to make a judgment call as to whether material that a party might want to broadcast strays beyond mentioning the referendum in passing in an election broadcast and into the realms of what would become a referendum campaign broadcast.

[Lord Falconer of Thoroton]

Is the noble and learned Lord saying that, if one of the purposes of a political party’s broadcast—though not its main purpose—was to encourage people to vote in a particular way in the referendum, it would infringe Section 127 of the Political Parties, Elections and Referendums Act?

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[Lord Falconer of Thoroton]

I am glad that the noble Lord, Lord McNally, is here and has recovered. He will remember what I said in Committee. I completely trust him, and I am more than happy to accept his assurances and to discuss the matter in the spirit in which he made the offer. I am absolutely sure that the two of us can reach a solution that is acceptable to both of us.

The noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord McNally, will also remember that the noble and learned Lord, Lord Mackay of Clashfern, intervened in the same debate and said:

“I think that I am right in saying that at the moment a party-political broadcast in connection with a referendum is allowed, so long as that is not the principal or main purpose, or some such phrase, of the broadcast. It may be that what the noble and learned Lord, Lord Falconer, and others have identified is a question of whether or not that general provision is wise or whether it should be modified. The question may go somewhat further than just this referendum and that issue needs to be looked at”.—[Official Report, 15/12/10; col. 622.]

That was the issue to which my comments and the comments of the noble Lord, Lord McNally, referred.

I completely exonerate the noble Lord, Lord McNally, and the noble and learned Lord, Lord Wallace of Tankerness, of any fault on their part, but the consequence of what happened is that I have today been handed a letter, which I am reading while the noble and learned Lord gives what appears to be a wholly unsatisfactory answer. He appears to be saying that in order not to lose flexibility, it is important that political parties should be able to make a casual reference to the referendum in their party political broadcasts. He rejects my Amendment 9, which would mean that there would be certainty about the position and a level playing field. What would that protect? As I understand it, it would protect a political party’s right to mention the referendum. Superficially and on the face of it, that would seem to be utter nonsense and something which, if I had had an opportunity to talk to someone of the stature of the noble Lord, Lord McNally, or the noble and learned Lord, Lord Wallace of Tankerness, before they gave voice to the note I have here, would perhaps have been modified. That was the impression left by the assurance I was given by the noble Lord, Lord McNally.

I am disappointed at the lateness of the letter from the Leader of the House. I make it clear that I am not remotely blaming the noble Lord, Lord McNally, and the noble and learned Lord, because they are under different sorts of pressure, but it is an unfortunate process, which means that assurances are being given which, because of the speed with which we are operating, are not being delivered on. Although it is unusual to do so, I will bring this matter back at Third Reading. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

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[Lord Wallace of Tankerness]

The amendment is re-moved but not removed—yet. I fully accept the spirit in which the noble Lord, Lord Rooker, re-moved it. As he recognises, this is not entirely consequential. We could get a turnout of 80 per cent and yet, with this change, we would still create a power rather than an obligation. I do not need to elaborate, as the point has been made. The Government cannot accept the amendment. In the spirit in which the noble Lord re-moved it, I ask him to withdraw it.

[Lord Falconer of Thoroton]

My understanding when I was a Minister was that, when an amendment was carried, the Government would bring forward amendments to tidy up the Bill to reflect the position in relation to the plain intent of the amendment—in this case, Amendment A1. We always did this and we expect the Government to make the rest of the Bill reflect the effect of the amendment of the noble Lord, Lord Rooker.

[Baroness Anelay of St Johns]

My Lords, perhaps I may assist the House from my memory of our long period in opposition, when the noble and learned Lord was a Minister. There were two occasions on which the Government might have taken action. One was when it was agreed in advance that an amendment was consequential on an amendment that was carried. I believe that that is not the matter to which the noble and learned Lord referred. He may be referring to the second occasion, which was that, when an amendment was carried, the sense of the rest of the Bill had then to be tidied up in order to reflect the spirit of the decision taken by the House.

Perhaps the noble and learned Lord would confirm that it is the second of those occasions to which he refers, because there was no agreement that this amendment was consequential on the first when the Division took place earlier today. That is not to say that the Government refuse to look at the implications of the Division’s result. However, the noble and learned Lord will be aware that there was no undertaking to consider this amendment as consequential on the first and he will of course appreciate that there is a difference between the two positions.

[Lord Falconer of Thoroton]

My Lords, I am entirely unclear what the difference is. Amendment A1 states:

“If less than 40% of the electorate vote in the referendum, the result shall not be binding”.

The noble and learned Lord, Lord Wallace of Tankerness, says that if one puts in “may”, one makes it unbinding even if the turnout is more than 40 per cent. Is that consequential or is it tidying up? I have no idea. I would like to know what the noble and learned Lord, Lord Wallace of Tankerness, is promising to do. With respect to the Chief Whip, I found the distinction meaningless, unhelpful and ill informed.

[Baroness Anelay of St Johns]

My Lords—

[Lord Falconer of Thoroton]

Perhaps I might finish my point.

[Baroness Anelay of St Johns]

It is customary, when a noble Lord accuses another Member of the House of being ignorant, to give them the opportunity to reply.

[The Deputy Speaker]

My Lords, it might be helpful to the House if I remind noble Lords that we are on Report.

[Lord Falconer of Thoroton]

I apologise. I was keen to find out the position of the Government in relation to this. What the Chief Whip said was unhelpful. It is important for the Government to state their position.

[Lord Wallace of Tankerness]

My Lords, the vote took place only a few hours ago and the Government are still to consider how they will respond to it. In answer to the noble and learned Lord’s question, this is neither a consequential amendment, as the noble Lord, Lord Rooker, and I have indicated, nor is it a tidying-up one, because it does not tidy up. It goes much further than that. Indeed, it breaks the linkage, because it would make the power permissive rather than a duty. As I indicated, that could therefore mean that the power was there in any circumstance. Even if there was an 80 per cent turnout at the referendum with a 75 per cent vote in favour, the effect would not be to oblige the order to be brought forward to implement a yes vote. That was not what the House voted for and therefore I cannot accept the noble Lord’s amendment, which I think he fully understands.

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[Lord Lipsey]

My Lords, at an earlier stage on the Bill, I described this as the buckle that linked the AV bit of the Bill with the constituencies bit. It is a slightly peculiar buckle as the constituencies bit goes ahead even if AV does not because the referendum is lost, but AV cannot go ahead if the constituencies bit does not. I suppose that reflects the bargaining strength of the two sides during the coalition negotiations.

I do not see any great point in labouring this issue any more. The Government are not showing any great willingness to split the Bill, as some of us suggested from the first that they would be wise to do. All I would like to hear the Minister say is that this is a political deal and so has to stay. I do not even ask him to say that this is a sordid, low, political deal between two unequal partners which should never have taken place. I do not expect anything like that from the noble and learned Lord. If he would just say that this is a political deal and would the House kindly accept it on that basis, I shall do so and withdraw my amendment.

[Lord Falconer of Thoroton]

My Lords, my name is on this amendment as well. To slightly increase the excruciation for the noble and learned Lord, it is impossible to understand what the basis of the conditionality is. Assume that 99 per cent of the population were to vote in favour of changing the system to AV, even if something happened to prevent the Boundary Commission changes being introduced, then, as I understand the Government’s position, they will not introduce AV. Why is that? What is the logic? The only logic must be some sort of political deal. Honesty would help the noble and learned Lord a lot.

[Lord Wallace of Tankerness]

My Lords, these amendments, as the noble Lord, Lord Lipsey, has indicated, seek to undermine, even remove, the link between the commencement arrangements for the AV and for the constituencies parts of the Bill. Anyone who has ever been a political realist would recognise that in terms of a coalition one part of the Bill—the first part—had greater salience and resonance with the Liberal Democrats, and the same applied to the Conservative Party when it comes to Part 2. I believe in equality of votes across the United Kingdom and I have not had difficulty, therefore, in arguing that case.

The issue of linkage has been one which we have debated from the outset. The noble Baroness, Lady McDonagh, raised an issue about it as we started Committee stage and withdrew her amendment, and the parties and the coalition Government have made it very clear that these two parts are linked. The question has been raised—it was hinted at by the noble Lord, Lord Lipsey—as to why, if the referendum does not produce as successful an outcome as the Liberal Democrats would wish to see, we are tied in, as it were, with the boundary change. Quite apart from the fact that, as I have already indicated, there is something right in principle about trying to seek greater equality among constituencies, as a liberal and a democrat I would find it very difficult to say, if the people had expressed their view in a referendum and said no, that somehow or other we should try and thwart another part of this Bill which is linked.

There is nothing wrong in parties entering into an agreement that they then make their best endeavours to deliver; in fact it is honourable and perfectly proper. I believe both parts of this Bill hang together and are linked. They give the people a say as to whether they want to change the way in which the House of Commons is elected while also ensuring that the House of Commons is elected, be it on first past the post or on the alternative vote, in constituencies that are much nearer to being equal.

On that basis I would invite the noble Lord, Lord Lipsey, to withdraw his amendment.

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[Lord McNally]

My Lords, this amendment removes the power in Clause 8(4) to make a transitional or saving provision when implementing the AV provisions through an order made under Clause 8(1). Instead, it inserts the provision that any order made under Clause 8(1) will not affect any election held before the first parliamentary election following that day.

The Government have brought forward this amendment in response to the recommendation of the Delegated Powers and Regulatory Reform Committee that the power in Clause 8(4) should be subject to the negative procedure. This was on the grounds that,

“the power to include transitional and saving provision may determine which form of voting system is to apply in the case of a particular parliamentary election. That is a significant power, which ought to be subject to Parliamentary control”.

This Government attach great importance to the views of this and other Select Committees, and we have reflected carefully on the committee’s recommendations. As my noble and learned friend Lord Wallace indicated in Committee, we had envisaged that in the event of a yes vote in the referendum, this power might be used to provide that any parliamentary by-elections held between the commencement of the AV provisions and the subsequent general election would take place under the existing first past the post system. That is because the Government take the view that it would not be appropriate in the intervening period between the commencement of these provisions and the subsequent general election for by-elections to take place under the AV system, since that would have the result that the House of Commons would contain Members elected under two different electoral systems.

The Government are content to accept the committee’s conclusion that the issue of the powers in Clause 8(4) should be addressed. However, the effect of applying parliamentary procedure to the powers proposed would run contrary to the Government’s stated intention that the referendum on the voting system should be binding. Moreover, this House has already expressed its view on this issue by voting on the first day in Committee against an amendment to make the referendum indicative. In order to meet the Committee’s concern, the Government have instead brought forward this amendment, which removes the powers in Clause 8(4) and instead makes the position on by-elections held in the period between the AV provision coming into force and the first parliamentary election on AV clear in the Bill. This provision goes further than the committee’s recommendation by making the Government’s intentions absolutely clear in the Bill. On reflection, we think this is preferable to leaving the issue to future secondary legislation, which would be the effect of following the committee’s recommendation. I beg to move this amendment, and I hope that the House will support it.

[Lord Falconer of Thoroton]

I welcome the noble Lord, Lord McNally, back to front-line service on this exciting Bill. We have missed him a lot in every single respect. He has explained that very—

[Lord McNally]

Since this is my only opportunity, I thank those on the Labour Benches for sending me a bouquet of cut flowers. After MI5 had dismantled it, it was put in a vase in my room.

[Lord Falconer of Thoroton]

And did they find what we hid in it? We genuinely welcome the noble Lord back. He is very popular on our Benches. He has explained this very clearly. We have no problem with it. We think the critical point that he is making is that by-elections after the passage of the Order in Council that brings the boundary changes into effect, which is the last stage in bringing in AV after a yes vote, will not be conducted under AV until after the first general election is conducted after AV. We have no problem with that.

Amendment 16A agreed.