Parliamentary Voting System and Constituencies Bill

Lord Falconer of Thoroton Excerpts

Monday 14th February 2011 Lords Chamber

[Lord McNally]

That the Bill be now read a third time.

[Lord Falconer of Thoroton]

My Lords, today's date was fixed without consultation. Had we been consulted, we would have said that there was no reason not to comply with the usual interval of three working days between Report and Third Reading, meaning that Third Reading would have taken place tomorrow.

I raise the point not to invite debate or to seek change now but only so that the precedential effect of this is as limited as possible.

Motion agreed.

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Moved by

[Lord Falconer of Thoroton]

1: Clause 5, page 4, line 48, at end insert—
“( ) Party election broadcasts during the referendum period will not be broadcast if they deal with pictures or implied support of any particular side in the referendum on the voting system for parliamentary elections.”

[Lord Falconer of Thoroton]

My Lords, for noble Lords who are interested in this amendment, perhaps I may start again. The first amendment on today’s Marshalled List deals with expenditure on the campaigns in support of or against the alternative vote system. My amendment to Clause 5, and that of my noble friend Lord Bach, seeks to prevent a party political broadcast that supports one or other side in the AV debate being broadcast. I want to achieve that because there are complex and, in my view, sensible rules that one would have changed in a number of respects, but in principle it is sensible that there are rules to ensure that no one campaign can expend significantly more than another in support of or against AV. These rules can be got around if a political party can use its expenditure limits to support or oppose AV in the campaign.

My amendment seeks to prevent any political party using the party political broadcasts that it gets from the state, on the radio or on television from supporting or opposing the AV system. It is of practical significance in this particular debate on AV—whether or not we should introduce the change on the referendum—because the AV referendum, as noble Lords will know, is being combined with other elections in which parties will seek support for individual candidates.

In addition to broadcasts relating to the alternative vote referendum, party political broadcasts in support of individual candidates in local authority elections will be made available for the state and in the Welsh Assembly and the Scottish Parliament elections. The Tories—the Conservatives—and the Liberal Democrats, as well as the Scottish National Party and Plaid Cymru, will put out party political broadcasts throughout this period.

One party—the Liberal Democrats—unreservedly supports the change to the alternative vote system. It will be possible for it to put into its broadcasts indications of support for the alternative vote in the referendum, which will give in effect a significant broadcast. I do not know how many broadcasts there will be during the election period—perhaps five or six on the television and the radio. It gives them an edge that is not caught by the expenditure limits that are rightly put in the Bill. The amendment has the effect of saying that if you support AV or are against AV in your party political broadcast, that broadcast should not be granted.

There is already a section in the 2000 referendum Act that says that a party political broadcast on the television or radio cannot be broadcast if its purpose or its principal purpose is to support or oppose a view in the referendum. The question is whether it is better just to leave the law as it is and to let broadcasters decide the purpose or principal purpose, which is quite a difficult question of analysis. It is reasonable to assume that the principal purpose of a party political broadcast by the Liberal Democrats will be to promote the Liberal Democrats, but a subsidiary purpose might well be, from their point of view, to support the alternative vote system, which is a question of quite fine judgment. Or is it better, as I submit it is, to be quite clear about what you are saying and simply to say, “If you support one or other side in your party political broadcast, it should not be broadcast.”? That means that the political parties, in particular the Liberal Democrats but also any party that opposes them, will know precisely where they stand.

This point was first raised in Committee and it was agreed that the noble Lord, Lord McNally, and I would speak, but we were not able to do so. I then received a letter on Report just as that stage was coming to an end, so it was not possible to debate it at that point. The Minister, Mr Harper, was kind enough to ring me at ten to two on Friday afternoon last week to discuss it, and he sent me a letter that arrived in my hands at approximately a quarter past two today. Because of that sequence of events, it has been possible, unusually, to raise the point on Report today.

[Noble Lords]

Third Reading.

Lord Falconer of Thoroton: I apologise: at Third Reading today. It is an important issue, and I wait with interest to hear what the Government have to say. In the course of my telephone conversation with the Minister last Friday, one of his officials, plainly reflecting policy, said that either the Electoral Commission or the broadcaster—I cannot recall which—had not yet decided whether it was going to be permissible, in its book, for a party to say in its broadcast whether it supported AV or not. In other words, the broadcasters’ committee that was going to determine what was acceptable had not yet made up its mind whether a political party, in a party political broadcast, could say, “Our political party supports AV and we urge you to do so as well”. I respectfully submit that it is right for Parliament rather than a committee of broadcasters to decide this matter, and therefore I invite the House to support the amendment.

[Lord Phillips of Sudbury]

In the light of the wording of his amendment—which is a bit strange, if I may say so, particularly the section that reads,

“will not be broadcast if they deal with pictures or implied support of any particular side”—

what if the Lib Dems put out an election broadcast, let us say, six weeks before the referendum in which they said, for example, that they are strong supporters of constitutional reform across the board, or words to that effect? Would that fall foul of this amendment?

[Lord Falconer of Thoroton]

I accept the noble Lord’s implied, or indeed express, criticism. My wording is not good and that is my fault. It would have been much better if the amendment had said: “Party election broadcasts during the referendum period will not be broadcast if they support any particular side in the referendum on the voting system”. It would have been much simpler if I had just said that, and then one would have known where one stood.

On whether the proposition put by the noble Lord in his question would fall foul of my amendment, if the six-week period is within the referendum period, then it would. I would have to check with the Minister because I am not sure whether the six-week period is within the referendum period. However, if we assume that it is within the referendum period, then saying, “We are strong supporters of constitutional change”, implies support, I would have thought. I beg to move.

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

My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, has indicated, this matter has been debated in Committee and on Report, and it is clear that the Government have taken a different view from him. However, I accept that it is helpful for us to be able to have a further exchange on the issue.

The Government believe that the framework that is set out in this Bill and indeed in other legislation is sufficient for this referendum. Perhaps I can establish some common ground. We agree with the principle that party election broadcasts should not be used as referendum campaign broadcasts. However, Section 127 of the Political Parties, Elections and Referendums Act 2000 prevents the main purpose of any broadcast other than a referendum campaign broadcast being to procure or promote an outcome in a referendum, which we believe is sufficient reassurance. In other words, it ensures that a party election broadcast does not become a referendum campaign broadcast. I think there is common ground here and that the mischief which the noble and learned Lord identified—although I would not necessarily accept it—is an incidental part of an election broadcast in which one side or the other is endorsed.

Our view is that there is clear merit in maintaining some flexibility in this area while acknowledging the clear limits already imposed by Section 127. Such flexibility might enable, for example, the inclusion of a brief statement during a party election broadcast that referred to the referendum and to whether the party supported a particular outcome. Although the noble and learned Lord did not say it, I understand from him that he would find nothing wrong with the existence of the referendum being referred to or indeed with an encouragement to vote; it is the endorsement of a particular yes or no position that he seeks to address.

If such a reference was an expression of a party’s wider policy on matters—for example, on political reform—that were of relevance to the elections on 5 May, one might say that precluding mention of that position in a related election broadcast could have an adverse impact on campaigning for a particular party in those elections. To pick up on the point made by my noble friend Lord Phillips of Sudbury, I can confirm that six weeks would be within the relevant campaign period for the referendum. I understood the noble and learned Lord to agree with the proposition that if in that broadcast a party was to support, let us say, constitutional reform—I do not think that my noble friend even specified a particular outcome of the referendum—that would fall foul of the law if his amendment were passed.

I ask the House to consider that to legislate to forbid a party to articulate its legitimate policy position is an important step to take.

[Lord Wallace of Tankerness]

I have two points in response. Speaking as a member of the Administration, I am in no position to offer detailed assurances on the content of a party political broadcast when that party is only one part of the coalition. However, I shall indicate what the dynamic might be in how the broadcasting authorities treat this issue and, indeed, are doing so—it is not hypothetical.

We believe that it is ultimately a matter for the broadcasters to see that the rules in Section 127 on the content of party election broadcasts, together with relevant guidance issued under the Communications Act 2003, are adhered to. That is the Government’s position. I accept that the noble and learned Lord might disagree with it, but we have not yet heard any compelling reason to convince us that that stance is wrong. The proposed approach would in any case still require broadcasters to take a view on whether the proposed content in a broadcast complied with the new rule. Broadcasters would have to make some sort of judgment as to whether the content of a party election broadcast indicated a preference for a particular referendum outcome. Such a judgment might well be in the field of whether a general endorsement of constitutional reform fell within that or whether the content had to be much more specific, endorsing a yes/no position.

As I indicated on Report, the chair of the Broadcasters’ Liaison Group has already written to the political parties, drawn their attention to Section 127 of the PPERA and asked them to contact him if they intend to include any reference to the referendum in a party election broadcast in order to ascertain whether any reference crosses the line into Section 127 territory and could in the group’s view be unlawful. We believe that these lines of communication will clarify how the legislative framework will apply in the context of the combination of the referendum with other polls on 5 May. The framework for regulating party election broadcasts sits under the Communications Act 2003 and within the broadcasters’ guidance. We believe that that, combined with the Section 127 provisions in PPERA 2000, provides the necessary clarity.

That said, the Government acknowledge the important issue that has been raised by the noble and learned Lord in tabling this and other amendments at earlier stages. The PPERA framework for referendum regulation was introduced by the previous Government and, despite the confidence that I have expressed in the legislation, aspects of the framework might need a longer-term refresh. I reassure the noble and learned Lord that the Government will reflect further on these points in the light of the referendum and the experience of the poll on 5 May. In the mean time, I urge the noble and learned Lord to withdraw the amendment.

[Lord Falconer of Thoroton]

I am grateful to the noble and learned Lord for his speech, but there is a fundamental problem with it; he referred to flexibility, but the amendment seeks to establish the principle that in a party political broadcast you should not be able to support an outcome in the AV Bill. The Electoral Commission says that it supports the intention behind the amendment, but goes on to say that it is not sure that it is necessary to achieve the intended outcome because of the main purpose issue in Section 127. Surely it is better that there should be clarity about what is and is not allowed—and what should not be allowed is support for an outcome in a party political broadcast, because that would drive a coach and horses through the expenditure limits. I seek the opinion of the House.

[Lord Lloyd of Berwick]

In the event that the amendment is successful, it seems an awful pity that we should use this language. It makes no sense as drafted, as I think the noble and learned Lord accepts. Is there a way, even at this late stage, in which we can adopt his alternative language, which is much clearer?

[Lord Falconer of Thoroton]

My Lords, the Clerk, brutally, is shaking his head. I would be willing to adopt the noble and learned Lord’s approach to this matter. However, if the House adopts the approach that I am taking, I anticipate that the Government will either reject the amendment in the other place, or, if having had time to think about it the amendment is accepted there, the House of Commons could then tidy it up. I respectfully and tentatively suggest that the House should vote on the principle of whether there should be a prohibition on political parties being able to support or oppose the AV referendum in their party political broadcasts. If my amendment is carried, it can be tidied up or rejected in the House of Commons later.

[Lord Campbell of Alloway]

My Lords—

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[The Deputy Speaker]

Unfortunately, there is a printing mistake in paragraph (a), which should at the end read,

“as defined in section 2”,

not just, “as defined in 2”.

[Lord Falconer of Thoroton]

My Lords, this is an important point. I completely agree with my noble friend Lord Rooker on the meaning of his amendment. I completely support him when he says that this is not a fatal threshold, by which I mean that if more than 40 per cent of those entitled to turn out vote, there is no issue because the turnout threshold is met. If the figure is below 40 per cent, the position is exactly the same as in the Scotland Act and the Government of Wales Act, in which case it becomes an advisory referendum and it is for Parliament then to decide whether to pass an Act of Parliament. I say with the greatest respect to the noble Lord, Lord Tyler, that his question was misleading as far as the public are concerned in relation to the threshold that has been put in and was also misleading in relation to what had happened in the House of Commons in this regard.

The second issue is a statutory construction issue. I do not think that it is necessary to put in a definition of “electorate” in order to make Clause 1(2), as amended on Report, make sense. Clause 1(2) states:

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

The “electorate” in the referendum is defined in Clause 2, as amended on Report. In answer to the Electoral Commission’s question posed in its briefing, that will include people who are not on the roll at the beginning of the period but are put on to it during the campaign. Therefore, I do not think that any amendment is required in relation to that.

The Electoral Commission asked what would happen in relation to a spoilt ballot paper and whether the person who spoils their ballot paper, whether deliberately or by mistake, is counted as somebody who has voted in the referendum in order to satisfy Clause 1(2), as amended on Report. My view is that they should be counted as having voted in the referendum in those circumstances but I should be interested to hear what the Government have to say about that. I suspect that there is an answer to that which probably does not require amendment. On the basis that the first question raised by the Electoral Commission has an easy answer and the second one has an answer, I suspect that amendment is not required.

The third issue, which is separate from those two matters of statutory construction, is the approach of this House to amendments. Where an amendment is passed by this House which is going to go back to the Commons, whether the Government agree with it or not and irrespective of whether they intend to seek to persuade the Commons to overrule it, the approach, as I understand it, is that the Government, who have access to parliamentary counsel and a full team, do what is necessary to make the Bill whole in the sense of it being consistent with the amendment that this House has agreed to so that when the House of Commons is addressing the amendment, which may be opposed by the Government, it is addressing a Bill which is consistent in all its parts. This would normally be done by amendments from the mover, but quite often it is not. I would expect the Government not to allow an inconsistent Bill to go back to the Commons but to move such consequential amendments as are necessary to make sense of the Bill. In those circumstances, I take the fact that the Government are moving no amendments in respect of my noble friend Lord Rooker’s threshold amendment, if I may call it that, to mean that the Government, having consulted with parliamentary counsel and the Bill team, take the view that no issue that requires further amendment has been raised. That may well be right and is, in effect, the opinion I have expressed on the two difficulties posed by the Electoral Commission in its briefing to the House.

For the purposes of process, which is important, I should be grateful if the noble and learned Lord, Lord Wallace of Tankerness, could confirm that the broad approach I have defined is the one taken by the Government.

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[Lord Phillips of Sudbury]

My Lords, I hope that I can move this amendment even more briefly than I did in Committee and on Report. I, too, thank many Members of the House who have supported the principle of the amendment, not least the opposition Front Bench.

It is a straightforward, practical and modest amendment but it goes to what many noble Lords will think is one of the hearts of the Bill—the bit which seeks to ensure that as many of our countrymen as possible take part in the referendum. In paragraph 10 of Schedule 1—I pay tribute to the Government for including this from the outset—there is a series of provisions under the heading “Encouraging participation”. Among them is one which casts upon each of four officials—the chief counting officer, a regional counting officer, a counting officer and a registration officer—a formal duty to encourage participation in the referendum. As noble Lords will see from the way in which I have drafted the amendment, it simply maximises the effect of the provisions in the Bill by ensuring that someone seeks to co-ordinate the activity between those four sets of officials. Without someone having that responsibility—not to order them what to do but to facilitate co-operation—one might find black holes and serious and unnecessary overlapping and, of course, we have little time in which to generate interest and informed interest in this referendum. The amendment simply seeks to do that.

If anyone has questions about how I have moved the amendment or about the amendment itself, I will be happy to answer them. I hope that that is sufficient to spread understanding of the amendment and I invite your Lordships’ appreciation of it. I beg to move.

[Lord Falconer of Thoroton]

My Lords, we support the amendment and we supported it previously. The noble Lord invited our appreciation of the amendment. I expressly appreciate the amendment for its drafting and also its mover who has spent a lifetime supporting participation of this sort. He thoroughly deserves to get his amendment.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Phillips for the amendment and I join in the general approbation of it. For all the difficulties that we have had during parts of this Bill, a common theme in all parts of the Chamber has been the importance of participation in the referendum process. As my noble friend indicated, this paragraph of the schedule does that anyway but he has highlighted the way in which it can be done even better. I am grateful to my noble friend for the constructive discussions we have had on this and the result of those is that the Government agree that the proposal adds useful clarification to the Bill, particularly by emphasising the importance of co-ordination and co-operation. I am pleased to urge the House to accept my noble friend’s amendment.