Crime and Courts Bill [HL]

Debate between Lord Falconer of Thoroton and Lord McNally

Wednesday 27th June 2012 Lords Chamber

[Lord Falconer of Thoroton]

If the Lord Chancellor said “I want this candidate” and persuaded everybody, none of that would have been apparent. People would doubt the independence of the appointment from the political situation, or the political influences on the position. Do not be under any illusion; if the Lord Chancellor proceeds with this proposal, those people who have had dealings with the constitutional settlement will think that he is, without properly understanding it, going against the basis of the constitutional settlement which the noble Lord, Lord McNally, worked so hard to get through. As he said on Monday, the noble Lord, Lord Goodhart, was one of the main Liberal Democrat architects of the constitutional settlement, as was, as he also acknowledged on Monday, the noble and learned Lord, Lord Woolf. What on earth is the reason for so undermining the political independence of the judiciary?

For these reasons we support the amendments that are being made. If, as I think is unlikely, they are put to the vote today, we will support them. I earnestly ask that the Minister reconsiders the Government’s position on this, and the Lord Chief Justice’s position. It would be a really bad idea if people thought that a Conservative or Labour Secretary of State for Justice, not the Lord Chancellor, had appointed the Lord Chief Justice and the president of the Supreme Court.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I am grateful to those who have taken part in this, which is an interesting and important debate on a very important constitutional issue. I am not sure that I share the analysis of these proposals. As I said before, the Lord Chancellor is determined to defend the separation of powers and the independence of the judiciary. We are committed to the constitutional settlement that was brought in by the noble and learned Lord, Lord Falconer, when he was in office. But, as I said earlier, we are making proposals which, with the passage of time, improve on that settlement. The debate today is part of that.

Interestingly enough, I was flicking through Hansard for Monday evening. The noble and learned Lord is always passionate and eloquent, but he was particularly passionate and eloquent then. He was urging us not to take the Executive out of decisions on appointments in the lower courts. Well, that is what it says.

[Lord Falconer of Thoroton]

Can I answer that?

[Lord McNally]

Yes. Perhaps the noble and learned Lord would like to turn to column 112 of the Hansard of 25 June when, as I say, he was quite passionately making the case for the Executive being involved.

[Lord Falconer of Thoroton]

Indeed I was. The noble Lord, Lord McNally, was agreeing with me that the way you do it is to have an independent process of appointment which the Executive must endorse, or not, so that there is somebody responsible in Parliament to defend it. Does the noble Lord agree with that approach?

[Lord McNally]

The noble and learned Lord was saying that the Executive should be kept in the process. The noble and learned Lord is marvellous; he spends half his interventions twisting the words of people who disagree with him, and when anybody tries to put him right, he starts protesting.

Of course the Lord Chancellor is accountable to Parliament. That is central to the settlement. He is responsible to the public for the overall process of judicial appointments and the effective working of the judicial system. It is important, at this very senior level of the judiciary, that as well as possessing first-rate judicial skills, candidates for the leadership roles are alive to the management and administrative issues that affect the administration of justice and are able to work with the Government on developing the system. This is an area where the view of the Lord Chancellor is likely to be of particular importance. This is therefore a legitimate role for the Lord Chancellor to play in the most senior judicial appointment.

I know that the noble and learned Lord has a kind of sense of ownership of the constitutional settlement.

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[Lord Falconer of Thoroton]

I am happy to change it.

[Lord McNally]

Well, if he is happy to change it, perhaps he will listen to the argument for making just the smallest tweak in the perfect construction that he left for us. That means that it should be balanced appropriately against judicial and lay input into the process. It should respect, as I have said, the independence of the judiciary.

[Lord Falconer of Thoroton]

Lay input is how you get management experience, I agree. What is wrong with the non-legally qualified person, the member of the Northern Ireland commission, the member of the Scottish commission and the member of the English commission? There is a quite substantial balance of lay people already.

[Lord McNally]

We had a very vigorous discussion about this when we had a second go in front of the Constitution Committee. Looking at those three top jobs—the presidency, the Lord Chief Justice and the Lord Chancellor—I was struck by the fact that it is not just judicial excellence but a whole fingertip interrelationship that makes those three jobs work. That is why the Lord Chancellor is arguing, and I am convinced of this—it is not just a matter of me saying, “The Government believe”—that an input into the selection process at the selection board—

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[Lord McNally]

I was about to come to the interventions of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Prashar. I do not think that my noble friend Lady Falkner got it wrong at all, despite her being bullied by the noble and learned Lord, Lord Falconer.

[Lord Falconer of Thoroton]

I apologise to the noble Baroness, Lady Falkner of Margravine, who I have never thought of as someone who it was possible to bully. However, if the noble Lord, Lord McNally, was under that impression, that just goes to show how wrong perceptions can develop.

[Lord McNally]

Turning to the other noble Baronesses, to get them going as well, there did seem to be a suggestion of, “Don’t worry, because the present system already has the nudges, nods and winks that will get”—

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[Lord McNally]

Quite often in politics, in the law and in other parts of life, one finds oneself working with someone whom you do not particularly like. The difference this time is that there would be no political veto to that committee’s decision. It is worth putting on record that this would be a Lord Chancellor withdrawing his veto from those appointments. Yet, with his silken sophistry, the noble and learned Lord, Lord Falconer, implies that this is an extension of political power. It is just the opposite of the extension of political interference.

[Lord Falconer of Thoroton]

I was not implying it; I was saying it expressly, because that is plainly what is happening.

[Lord McNally]

It is simply not true, and anyone who is looking at this sees that it is a move away from a politician being able to exercise a veto to a politician transparently taking part in a process. If the Members of this Committee cannot see that, we will presumably withdraw it or take it back.

[Lord McNally]

It has been the feeling that the retention of a veto in this matter was keeping in the political process.

[Lord Falconer of Thoroton]

So why is a veto being kept for every other member of the Supreme Court, every member of the Court of Appeal and every member of the High Court?

[Lord McNally]

I have explained before that this unique triumvirate is very important, and that that is why we have adopted a very distinctive way of making this selection. I am not sure how far I can take the Committee, except perhaps to read from the letter that I wrote to the noble Baroness, Lady Jay, which the noble and learned Lord, Lord Falconer, said he had not had the pleasure of sharing. In that letter I said: “At the present the Lord Chancellor decides at the end of the selection process whether to accept or reject the name put forward by the panel or to ask for the panel’s decision to be reconsidered. In practice, under these current arrangements it may be difficult to make use of the veto in these high-profile cases without risking perception of politicisation of the process. This difficulty was acknowledged by Lord Phillips and others in their evidence to your committee”—that is, the committee of the noble Baroness, Lady Jay. “The Government therefore considers that allowing the Lord Chancellor to sit on the panel will enable his accountability to be exercised in a more direct and effective way. You will, of course, be aware that the Lord Chancellor’s involvement as a member of the selection panel was supported in evidence to the Constitutional Committee by both the Lord Chief Justice and the president of the UK Supreme Court”. So I am not isolated in this view.

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[Lord McNally]

No. I am very grateful to the noble Baroness because I should have clarified this point. The Bill says that the Lord Chancellor “may” be a member, but we intend to bring forward regulations setting out that the Lord Chancellor “will” be a member of the panel. This will not be able to be changed other than by a new regulation, which will be subject to affirmative procedures and agreement and to the agreement of the Lord Chief Justice and the president of the Supreme Court.

[Lord Falconer of Thoroton]

I would be rather averse, as would this House, to the constitution being changed in this way by regulations.

[Lord McNally]

I take note of what the noble and learned Lord says. I am merely saying what the intention is. Clearly—

[Lord Falconer of Thoroton]

I say that it is a deceptive question for the reasons that underlay the question of my noble friend Lady Jay. We thought that sometimes you would and sometimes you would not, but apparently you are always going to be a member of the panel.

[Lord McNally]

There is no deception; I have nothing up my sleeve.

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[Lord Falconer of Thoroton]

My Lords, I strongly support the amendment for the reasons given by the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Jay, and the noble Lord, Lord Thomas of Gresford. It is an important amendment on a matter that is already causing difficulty. The loss of the noble and learned Lord, Lord Collins, from the Supreme Court was a direct result of the reduction in the retiring age. The Government now have an opportunity to do something about that, because this is a legislative opportunity.

[Lord McNally]

My Lords, this is probably the last Chamber on earth where Ministers should be defending a retirement age of 70. I have listened very carefully to what has been said. I understand and sympathise with some of the frustrations. The noble and learned Lord, Lord Falconer, just referred to the case where someone comes to senior judicial office for a very short term. I also acknowledge that, in many cases, those judges would be able to continue beyond the age of 70 in terms of their intellectual sharpness. In such cases, they can be a costly loss to the judiciary. I am not sure that I go as far as the noble Lord, Lord Gilbert, in advocating no retirement age at all—I have always been a strong supporter of a retirement age for this House. However, that goes into a different issue. I see that the noble Lord is about to come up for air.

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[Lord McNally]

I will ponder on that, but I also ask the Committee to ponder on the Pannick amendment. The noble Lord’s proposal to write specific responsibilities into the Bill makes a regular appearance when we are legislating—I think that it is the second time that he has done it anyway and that makes it regular. The argument is usually the same; it is a please-stop-beating-your-wife amendment. These duties are embedded in the Bill and in the roles of both the Lord Chancellor and the Lord Chief Justice.

[Lord Falconer of Thoroton]

The Minister is making some serious points. I am surprised by the proposition that the Equality Act would already require the Lord Chancellor or the Lord Chief Justice, for example, to promote among young people and black and minority-ethnic groups a greater willingness to apply to be lawyers, because that is partly what trying to increase the pool involves. Is the Minister really saying that that obligation, to get more people to apply at a much younger age to learn to be lawyers, is already covered by the Equality Act?

[Lord McNally]

The Equality Act invites the Lord Chancellor and the Lord Chief Justice to apply the principles of the Equality Act to the job that they are doing, which is the point that I thought that the noble Lord, Lord Deben, was making: that if one is doing a job that is covered by the Equality Act, one should be carrying out the responsibilities in which those duties are embedded. I think that is true.

Amendment 121A also relates to the duty in Section 64 and to Supreme Court appointments. It would ensure that the Section 64 duty to encourage diversity in the range of persons available for selection applied to those appointments. The amendment would also provide that Section 63 of the Constitutional Reform Act should apply to Supreme Court appointments. This would have the effect that those appointments would be solely on merit, that the person should not be selected unless he or she is of good character and that where two persons are of equal merit, one can be selected over the other for the purpose of increasing diversity.

Before turning to the detail of the amendment, I should first say that diversity is, of course, important at all levels of the judiciary, up to and including the Supreme Court. In fact, it is particularly important at the higher levels, as female judges or judges from an ethnic minority can act as powerful role models for those at a more junior level in the judiciary. Indeed, due to their higher public profile, they may also act as a role model for younger people considering a legal or judicial career and may be a powerful symbol to the public at large with regard to the perception of the judiciary reflecting our society. We are supporting diversity at this level in the measures that we are taking in the Bill to enable flexible working arrangements at the highest level, including the Supreme Court.

Turning now to the detail of the amendment, and starting with the application of Section 63, the objective here is to apply the tipping-point provision in these cases. Section 159 of the Equality Act 2010 contains a provision to allow a person to be preferred to another on the basis of a protected characteristic, such as gender or race, when they are equally qualified to be appointed. In relation to judicial appointments in England and Wales, our view is that it is not clear that the tipping-point provision in the Equality Act can apply, because Section 63(2) specifies that selection must be solely on merit. This use of “solely” may be seen as precluding the use of the Equality Act test. That is why the Bill brings forward the new tipping-point provision in Section 63(4) so that it can apply to judicial appointments, selection for which is within the remit of the Judicial Appointments Commission, notwithstanding the use of “solely”.

In relation to appointments to the UK Supreme Court, however, there is no provision that appointment must be “solely” on merit. Section 27(5) of the Constitutional Reform Act specifies that appointment must be on merit. However, other considerations apply, in particular Section 25(8), which specifies that in making a selection the selection panel must ensure that the candidate has knowledge and experience of practice in the law of each part of the United Kingdom. As there is no reference to “solely”, we consider that there is no bar to the Equality Act tipping point applying to Supreme Court appointments without the need for further legislative change.

In relation to the application of Section 64 to the UK Supreme Court, I have already set out the commitment to encouraging diversity in the Supreme Court, but for the reason that I have already outlined in relation to Amendment 74, I do not consider that a statutory duty would add anything to this. In addition, in this case any statutory duty would also need to reflect the UK nature of the Supreme Court, so the current amendment, by placing this duty on the Lord Chief Justice of England and Wales and the Judicial Appointments Commission, would not be appropriate.

I understand where the noble Lord, Lord Pannick, and other noble Lords are coming from. We have a summer to consider these things, but I also hope that noble Lords who have been involved in legislation will know that these declaratory commitments that overlay existing commitments are not always as helpful as has been suggested. I hope to assuage the concern of the noble Baroness, Lady Prashar, by saying that we will look at the case that has been made this evening. As I say, at the moment we are not minded to accept the amendments, but with the promise that this debate will be among my summer reading I invite the noble Lord, Lord Pannick, to withdraw his amendment.

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[Lord McNally]

My Lords, I am very grateful for the amendment, because it allows me to clarify an important area: those who work in government legal services, the Crown Prosecution Service and other government legal offices. The intervention of the noble Lord, Lord Pannick, is extremely helpful, because it puts on record what a rich seam there is to be mined in those public appointments, and counterpoints the point that I have made several times from this Dispatch Box: that the public service has managed to make far more progress in promoting diversity over the past decades than has the private. We may learn lessons from that.

The Government are keen that members of the employed legal professions should take up judicial roles for which they are eligible, as like noble Lords, we are of the view that this could be a useful route to increasing diversity as well as ensuring that the Government can attract the best lawyers.

However, it has been the policy of successive Lord Chancellors that Crown Prosecution Service and other government lawyers when holding judicial office do not sit on cases involving their department. For CPS lawyers, this means that they cannot sit as recorders in the criminal courts, as the overwhelming majority of cases are prosecuted by the CPS.

Under the previous Administration, in 2003 the restrictions on applications by government lawyers were relaxed partially, and CPS lawyers became eligible for appointment as deputy district judges in magistrates’ courts. However, this was still on the basis that they did not sit on CPS-prosecuted cases, and therefore few roles are available.

The policy is based on the need to comply with Article 6 of the European Convention on Human Rights, which provides that litigants are entitled to be heard in front of an independent and impartial tribunal. Given those constraints, we need to think more creatively around the concept of a judicial career and how experience in one area can support subsequent appointment to judicial office in another area.

Opportunities are available for government lawyers to apply for judicial office. The published Judicial Appointments Commission programme for 2012-13 includes more than 300 vacancies for fee-paid office, which would be open to government lawyers to apply for. It is therefore important to communicate those opportunities available to government lawyers and to encourage them to take up judicial roles for which they are eligible—not least as this could be another useful route to increase diversity in the judiciary.

I am personally committed to playing a part in raising awareness of these opportunities. I recently met the Treasury Solicitor to discuss the best way to communicate them. I am also happy to consider any suggestions for changes to the current restrictions that apply to government lawyers to see whether we can go any further than the current practice—without, of course, infringing the rights to an independent and fair trial. When I met the Treasury Solicitor, I said that I was willing to write articles, go to seminars, or whatever, to raise the profile and awareness of those opportunities. As this is a probing amendment, I hope that the noble and learned Lord will believe that we are responding in this area and withdraw it.

[Lord Falconer of Thoroton]

I will certainly carefully consider what the Minister said. At the moment, he has given no reason why not to publish guidance that Parliament can consider. I invite him to consider whether guidance could be published regularly so that the issue is looked at with much more of a searchlight than at the moment. I will consider what the Minister said, in exchange for him agreeing—he is nodding—to consider what I said. I beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton]

My Lords, this is a short point about the Judicial Appointments Commission. Schedule 12 allows for equality between judicial members of the Judicial Appointments Commission and everyone else. I want to change that to make it clear that the judicial members will always be in the minority. As noble Lords will know, no one holds the judges in more admiration than me. One thing that is clear in the current process is that the judges’ views on appointing judges are very well expressed. Part of the reason for having the Judicial Appointments Commission was to bring in other people to the appointments process. I would like there to be judges on the Judicial Appointments Commission, but I would not want them to be, as it were, a blocking equality. I would be perfectly happy if they were in the most substantial minority. That is what I wish to reflect in the amendment.

[Lord McNally]

My Lords, if I could short-circuit debate on this, this is a very interesting proposal. I would like to take it away, consider it and bring it back on Report.

Crime and Courts Bill [HL]

Debate between Lord Falconer of Thoroton and Lord McNally

Monday 25th June 2012 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, my understanding is that we are debating the part-time provisions relating to the High Court, Court of Appeal and the Supreme Court. I understood that the noble and learned Lord, Lord Lloyd, said that it might be sensible then to deal with the other amendments in this group. I have in mind in particular the tie break provision amendment and my amendment about whether or not the Lord Chancellor should remain involved in appointing circuit judges. As I understand it, what was envisaged was that the noble Lord, Lord McNally, would reply on the part-time issues, then, without going on to another group, we would move on to the tie break and maybe the other amendment as well. Although the noble Baroness, Lady Brinton, has dealt with the tie break, at this stage I will restrict my remarks to the part-time issue, following the lead of the noble and learned Lord, Lord Lloyd. I would envisage that the noble and learned Lord, Lord Lloyd, would open the debate on the tie break as well.

[Lord McNally]

We had better get this straight from the start. The noble and learned Lord, Lord Lloyd, said that he wanted to move Amendment 120. He did not mention the amendment of the noble and learned Lord, Lord Falconer. I will take advice from the clerk, but if we are discussing only Amendment 115, whether Clause 18 should stand part of the Bill and, presumably, Amendment 116, then in normal circumstances we would go on to Amendment 117, not Amendment 120.

[Lord Falconer of Thoroton]

Our problem is that if I talk about the tie break, it is before the noble and learned Lord, Lord Lloyd, has made his points about why the tie break is wrong. The natural sequence of events is that I speak, then the Minister, we do not put a question but go round again, which is perfectly okay in Committee. If everybody is happy, that is the right course that I would envisage. A preliminary point: initially, I thought the noble Lord, Lord Goodhart’s, point was that the Constitutional Reform Act 2005 was such an important Act that it could never be amended. I tended to agree with that proposition. As I understand it, and I agree with this, he then went on to say that when a Bill makes a significant constitutional change, it is wrong to put it in the form of a schedule introduced by a section which does not, as it were, preview that it is a major constitutional change. The right way to make major constitutional changes, so that this House—which has a special responsibility in relation to constitutional changes—is aware of what is going on, is by an individual Act of Parliament.

I agree with the noble Lord, Lord Goodhart, in relation to this because here we are dealing with an important constitutional issue as regards the position of judges. Like the noble Lord, who is a practical and sensible Member of this House, I fear that we are where we are. We are in Committee and it is obvious that we will pass something along the lines of Clause 18 and Schedule 12. Therefore, it is necessary for us to debate the merits of those. But it is extremely important that the Government recognise that where one is dealing with important constitutional issues, it does not in any way inhibit any programme of constitutional change, it just means it is right that it is properly flagged up so that we know where we are.

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[Lord Falconer of Thoroton]

I accept what the noble and learned Lord says and perhaps I may say that no one was more willing than he—his successor, the noble and learned Lord, Lord Judge, was the same—to accommodate people as much as possible. So in answer to the point of the noble Lord, Lord Thomas of Gresford, if it was difficult for individual High Court judges to go on circuit then the Lord Chief Justice, in my experience, was always reasonable and understood the difficulties. However, there were limits. The main one was that you would not agree to have as a High Court judge somebody who wanted to have half term and school holidays off. As the noble Baroness, Lady Falkner of Margravine, said, we are not talking about working Mondays and Wednesdays but about whether someone could work for a period but have the children’s school holidays off. There is currently a situation where a High Court judge gets three months off. Is it that much more different to say that school holidays could be taken off as well? That sort of flexibility would open the door to a group of people who currently would not feel able to accept appointment as a High Court judge.

The noble and learned Baroness, Lady Butler-Sloss, asked broadly why we do not do that at the lower judicial level. Absolutely not. Why should somebody who is 45 and has the quality to be a High Court judge be offered a part-time job only in a position that is essentially inferior to the one that they would otherwise merit? The noble and learned Baroness, Lady Butler-Sloss, then argued, and had some support from the noble and learned Lord, Lord Carswell, that it is very difficult if you have some part-timers to deal with cases that last for nine months. Again, with the greatest of respect to the noble and learned Baroness, who was equally a champion of diversity, there are a handful of those long cases. The idea that there would be resentment because a number of judges would be willing to do them and others would not is, in my experience, fanciful. With respect to the noble and learned Baroness, I reject that argument. I strongly support the Minister’s proposal in relation to part-time judges for the High Court Bench because it improves and increases merit. It opens and widens the pool. It has no effect whatever on merit. I am strongly in favour of it.

The noble and learned Lord, Lord Lloyd of Berwick, said it was okay for the circuit Bench but not for the High Court Bench. Again there is no logic and no ultimate justification for that position. We should, as a Committee, endorse the proposal because it indicates that we understand the pressures on successful professional people. We should not say that the High Court Bench—unlike being a consultant doctor, a successful barrister, solicitor, or architect—is the only place where we will not be willing to allow that sort of flexible working. I am sorry that she is not in her place but the noble Baroness, Lady Kennedy of The Shaws, was right when she said that it is about flexible working. Part time, as a piece of language, may be a slightly misleading suggestion. I strongly support the proposition for the High Court Bench.

The next tier is the Court of Appeal. I have indicated that the range of ages at which people are appointed to the Court of Appeal is between 45 and 60. Although there is no pattern, one could reasonably expect to go to the Court of Appeal after between six and 12 years at the High Court so we are talking about people in their early 50s, although there are some exceptions. I am quite sure that the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, were in the Court of Appeal in their late 30s, but normally early 50s is the sort of range, although there are some people who go later. Think about what your responsibilities were when you were in your early 50s in relation to looking after children. Again, I know of people in the current Court of Appeal who have adolescent children and some with children under 12. What is more, as the noble and learned Baroness and the noble and learned Lord will testify, some of them live outside London. So in addition to the problem of having caring responsibilities for children, they have to travel from far away, which puts increased pressure on them.

Should people have the option of saying that they would like to go to the Court of Appeal but would like to do it when there are school holidays or on some other part-time basis? It is said by the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Carswell, that this would cause great difficulty because there are long cases in the Court of Appeal. I completely agree with what the noble Lord, Lord Pannick, says. My experience with cases in the Court of Appeal is that they do not tend to last more than three days. I know from my own experience of a case that lasted two weeks in the Court of Appeal, but I imagine that that would be regarded as unusual. I cannot think of any other profession where it is said that two weeks cannot be accommodated for somebody who works flexible hours. So with the greatest of respect to the noble and learned Baroness and the noble and learned Lord, Lord Carswell, I would say that the idea that it will cause difficulties in the Court of Appeal is not right.

Finally, on the Supreme Court, the noble and learned Lord, Lord Lloyd of Berwick, started off by saying that there was no Supreme Court with part timers. First, there is the House of Lords, which has many part timers. The Lord Chancellor was a part timer as a Member of the House of Lords. It was also the norm for retired members to sit on the Judicial Committee the House of Lords, and indeed for retired members of the Supreme Court to sit in the Supreme Court. So the idea that the Supreme Court cannot deal with the arrangements of part timers is, with the greatest respect, wrong.

Secondly, in relation to the length of cases dealt with in the Supreme Court, my experience of cases in the House of Lords and in the Supreme Court is that they tend to be shorter even than cases in the Court of Appeal. There was one case that lasted over a week in the past few years, which was the Belmarsh appeal, but that was a very exceptional appeal. So in arrangement terms there would be no difficulty in having people in the Supreme Court who were part time.

The noble and learned Lord, Lord Lloyd, went on to another point. The proposal would make absolutely no difference, he said, because there is nobody whom he can envisage would be worthy of appointment who would want to be part time. First of all, we are talking about this being permissive, not compulsory. Secondly, how many people have caring responsibilities for elderly parents? I was describing earlier the fact that, when I sought to appoint one High Court judge, she told me that she could not take the appointment because she had responsibilities for her own elderly mother and the mother of her husband as well. How many people would want to be in the Supreme Court and would be capable of being there but have other responsibilities? I do not know—but I look around the world and I see part-time Supreme Court members, such as the noble and learned Lord, Lord Woolf of Barnes, in relation to the Court of Final Appeal in Hong Kong, or Sydney Kentridge in the Supreme Court of South Africa. Have those courts benefited from those part-time members? My answer is yes.

So if we were to agree to a provision that allowed part-time or flexible working members of the Supreme Court in the United Kingdom, there would be two benefits. First, it would increase the pool of people who would be able to apply. Secondly, it would lead to a sense that we thought that flexible working was available from the top to the bottom of our judicial system. I cannot think of a better message for us to send—and it would be one that was not just a gesture but would have an effect on increasing merit. So I and these Benches enthusiastically endorse the brave and sensible proposal that the Government have made in relation to part-time working in the Supreme Court, the Court of Appeal and the High Court.

[Lord McNally]

My Lords, I feel like sitting down. The noble and learned Lord, Lord Falconer, was quite right; when he was Lord Chancellor and put through his constitutional reforms the Liberal Democrat Benches gave him full and consistent support. The brain power behind that support was my noble friend Lord Goodhart. I was the political organiser. As the noble Lord, Lord McAvoy, will attest, the triumph of ideals must be organised, so I share the pleasure in these reforms. I also think it is right—we will have lots of discussion about this—that the reforms, good as they were and are, are capable of being tweaked and improved in the light of experience. Therefore, I am grateful to the noble and learned Lords, Lord Lloyd and Lord Falconer, for setting the parameters of the debate, as it were.

Before I go into the detail, I wish to deal with the general point raised by my noble friend Lord Goodhart. I understand where he is coming from and the need to acknowledge the importance of constitutional reform. However, as the noble and learned Lord, Lord Falconer, found from his own experience, the difficulty is getting parliamentary time to tackle this. You sometimes have to accept the necessity of putting very important issues into a broader based Bill. The Government are always faced with the dilemma—this is true of all Governments—of choosing whether to put provisions together in one Bill, as is the case here, or of delaying legislation on important and necessary reforms. We have chosen the former approach but the fact that these provisions are in Clause 18 and Schedule 12 does not for a moment diminish their importance. Wherever they sit in the Bill, I would expect your Lordships’ House to discharge its usual role in carefully scrutinising the Government’s legislative proposals. If there was any doubt about that, it should have been dismissed by the thorough way in which the House has filleted these proposals for two and a half hours this evening.

I turn to the merits of our reforms to the judicial appointments process and answer the concerns raised by the noble and learned Lord, Lord Lloyd. His amendments would delete from the Bill the key measures to promote diversity and flexible working in the Supreme Court. As the noble and learned Lord, Lord Falconer, said, “flexible” is the right word, not “part time”. Of course, we must ensure that the process through which our judges are appointed is fair, open and transparent. The longer I am in this job, the more I am in awe of the quality of our senior judiciary. They are a national asset and are respected throughout the world for their quality and independence, as the noble and learned Lord, Lord Falconer, said. However, this does not conflict with a requirement for greater diversity in the judiciary. Diversity in the judiciary is important to enhance public confidence in the justice system. The proportion of women and members of ethnic minorities is still too low, and this is particularly the case in the higher courts.

As the noble Lord, Lord Pannick, pointed out, progress in increasing diversity in the judiciary has been woeful and inadequate. We do not believe that we can rely on trickle-up. We consider that allowing flexible working in senior courts is an important reform to increase diversity, and that it will not detract from the principle of appointment on merit. I was recently asked by a very senior member of the judiciary, “Will our judiciary still be held in the same high esteem in 20 years’ time as it is today, if your reforms go through?”. I could look him in the eye and say “Yes, I believe that it will, but it will be a more diverse judiciary”.

The arguments made by the noble and learned Lords, Lord Lloyd and Lord Carswell, and by the noble and learned Baroness, Lady Butler-Sloss, is that flexible working in the Supreme Court is simply not practical, and that all judges of the Supreme Court need to shoulder their fair share of the business by sitting full-time. I simply do not accept these arguments. It is a judgment call, but we have no reason to believe that it cannot work to the benefit of flexibility and diversity. Regarding the virtuoso performance by the noble and learned Lord, Lord Falconer, I can see how he earned an honest crust at that game. However, the noble and learned Lord made a good point. Flexible working will not be compulsory but will provide flexibility and, as has been pointed out by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Pannick, the merit test would still be there. It is not a dilution but a move to greater flexibility, which we believe will allow for greater diversity.

Many of the arguments we have heard from the sponsors of this amendment reflect an outdated view of the family. As the noble Baroness, Lady Kennedy, explained so eloquently, we need flexible working not just to enable a woman in her 30s or 40s to balance her career with her caring responsibilities, but to enable women in their 60s to carry out caring responsibilities for teenage children. Equally, such caring responsibilities can extend to grandchildren, a disabled partner or elderly parents. As my noble friend Lady Falkner pointed out, we are not just talking about women but about ethnic minorities, and some of this flexibility will also apply to men who find the present system too rigid.

We need to allow men and women of all ages to meet such caring responsibilities and balance them with flexible working patterns. The noble Baroness, Lady Jay, and others noted that such arguments were put forward in the past to oppose the introduction of flexible working in other professions. It has been shown in the medical profession and elsewhere that flexible working arrangements can be readily accommodated. As I have said in this House previously, if anybody asks me what is the biggest difference I have seen, having worked in the Foreign Office and Downing Street in the 1970s and come back to Whitehall now in 2010 to 2012, I would say that it is in the diversity of senior advisers. If our Civil Service can achieve such diversity, why can the law not achieve it?

That is not to say that there will not be challenges in implementing this, and practical issues to work through in, for example, the listing of cases. However, we agree with the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, that these issues are not insurmountable. As he has indicated, most cases in the Supreme Court require hearings of only two or three days. As has been discussed, flexible working can take many forms, such as working during term times, or for nine or 10 months of the year, as the noble Baroness, Lady Neuberger, highlighted. Can I again pay tribute to her committee, which has not simply produced a report, but has kept on the case in terms of chivvying me and the Lord Chancellor in these areas? Moreover, if we are allowing flexible working in the lower courts, including the High Court and the Court of Appeal, the absence of flexible working in the Supreme Court could potentially deny an outstanding Court of Appeal judge the ability to consider applying for the Supreme Court.

I hope that the debate has, in a way, answered the concerns of my noble friend Lord Goodhart. These are important issues that are not to be taken lightly. I do not think that the House has taken them lightly but the case against the Government’s proposals has not been made—in fact, quite the contrary. The balance of the debate has been on our side.

--- Later in debate ---

[Lord Falconer of Thoroton]

I am grateful to the noble Baroness, Lady Prashar, for explaining that our experiences are the same. One can test this simply by looking around the Chamber. If one had to make a choice between the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, I think that everyone would agree that they bring totally different characteristics to a particular job. Would we be able to say that one is better than the other? No, in my view they are of equal merit. This is a serious point.

If we assume that the argument is right, the question is then: is it open to the person appointing a judge—because this does not apply just to the Supreme Court, but from the top of the judicial system to the bottom—to say, for example, “We have one woman and 25 men in this job and we have before us people of equal merit. It might be sensible to increase the group with one more woman”? Apart from the judiciary, I cannot think of any other organisation in the world that would consider that to be a bad approach. It also involves moving on from an artificial approach that people have to be graded as number one and number two. I support the approach taken in the Bill and I do not support the approach of the noble and learned Lord, Lord Lloyd.

[Lord McNally]

My Lords, again I am extremely grateful to the noble and learned Lord, Lord Falconer, for his contribution. I will not labour the point, but there is a difference of opinion. Most of the contributors to the debate do not believe that merit is something that can be pinpointed with laser-beam accuracy. That is not the real world, as both the noble Baroness, Lady Prashar, and the noble and learned Lord, Lord Falconer, have so vividly illustrated. I must also say that we must be very careful to ensure that collegiality does not morph into “chaps like us”.

--- Later in debate ---

[Lord McNally]

Certainly, I will make sure that the Lord Chancellor reads today’s Hansard. The point is that it is advice that comes from the process of the Judicial Appointments Commission. Just as the noble and learned Lord, Lord Falconer, wants the Executive still involved, I am not so convinced and, even more importantly, nor is the Lord Chancellor. As I have said, we both take a view about the separation of powers of which this could and should be a useful symbol: the Lord Chancellor of the day would not be holding on to a rubber-stamping exercise, he would be leaving it with the Lord Chief Justice of the day. This has been an interesting mini-debate, which I will raise with the Lord Chancellor for further consideration.

[Lord Falconer of Thoroton]

I am grateful to the Minister for saying that he will raise this matter. Perhaps I may say that the Minister’s arguments were much better before he moved on to his written notes, which were of poor quality. On the point made by the noble and learned Lord, Lord Woolf, as regards the Lord Chief Justice knowing the candidates to be Admiralty Registrar better than the Lord Chancellor, I agree that that is an unlikely assertion. The implication of what the Minister said was that, unlike the circuit Bench, the deputy registrars and the Masters, the Lord Chancellor would be aware of all the candidates who would be going up for High Court appointments.

Speaking for myself, when I came from the Bar to being the Lord Chancellor, I was not aware of all the candidates. I would imagine that as regards the current Lord Chancellor—who I greatly admire and I believe utterly, with no doubts at all, to be a defender of the independence of the judiciary—90% of the people, if not more, who are being considered for the High Court Bench are equally unknown to him in relation to the circuit Bench. The judicial appointments system is not supposed to be on the basis that the Lord Chancellor knows the people and therefore has some input, but on the basis of him looking at the way in which the system works.

I found the friendly Minister saying, “I will give this a thought”, more attractive than the unsatisfactory nature of what was said in defence of the argument. Let me give the Minister two pauses for thought. First, if as Lord Chancellor you had not appointed one woman circuit judge for a year, you might want to ask about that in a way that the Lord Chief Justice would not be in a position to do. Secondly, let us suppose that the Judicial Appointments Commission said that in relation to circuit judge and recorder appointments it is going to award those appointments only to those people who have a 2:1 from Oxford or Cambridge. The Lord Chancellor can do something about that in the way in which the Lord Chief Justice cannot because the Lord Chancellor has a role in judicial appointments. Those two points are in aid of and additional to the point made by the noble and learned Lord, Lord Woolf, which I had not made but which is just as important; namely, that when there is a question mark about what a circuit judge has done, which there is very frequently, there needs to be someone in Parliament who has had some responsibility for appointing that judge and can say that the appointment was made in a sensible way. The idea of shuffling that off to the Lord Chief Justice is a mistake which will weaken the judiciary in our constitutional arrangements, without in any way improving the separation of powers. I hope that we will think about this issue again.

[Lord McNally]

I think that that is called extra time. So as to make it clear, I and I alone take responsibility for anything that I say from this Box. Just to give the noble and learned Lord, Lord Falconer, some idea of how deep the Lord Chancellor and the Lord Chief Justice go, having sat in on a number of meetings, I now have a full knowledge of the working of the Midlands Circuit 1970. I will take those points back.

[Lord Falconer of Thoroton]

I cannot resist the temptation to ask how many people who were on the Midland Circuit in 1970 are now being appointed judges. Their age, if they were on the circuit then, would now be 68.

Courts: Super-injunctions

Debate between Lord Falconer of Thoroton and Lord McNally

Thursday 19th May 2011 Lords Chamber

[Lord McNally]

I do not think that it is proper for me from this Dispatch Box to comment on individual cases, some of which are before the courts.

[Lord Falconer of Thoroton]

I agree with that and the extent to which one should not use privilege to go against the terms of court orders. To what extent are the Government considering how much the hearings in which super-injunctions or indeed any privacy injunctions are granted are open to the press? One of the problems is that people do not know what the process is. The press are reliable when directed not to disclose what goes on in criminal trials. Why can they not be present when secrecy injunctions or super-injunctions are granted?

[Lord McNally]

That is an extremely interesting question, one I hope that the Master of the Rolls has been considering and one to which he will give the answer tomorrow—I think.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

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.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Wednesday 9th February 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, I fear that I disagree with the noble Lord, Lord Newton of Braintree, and agree with the noble Lord, Lord Teverson, who, through the conduct of this sometimes slightly choppy Bill, has consistently carried the hopes of the people of Cornwall on his shoulders. He has spent a lot of time inside and outside the Chamber persuading people that Cornwall should be treated differently. He has persuaded us, strongly supported by the fact that we—and everyone else in this House—have heard forcibly from people who know about Cornwall. We support the noble Lord, Lord Teverson, and this House owes a lot to him.

One person who the noble Lord thought he might have persuaded was the noble Lord the Leader of the House, who said in Committee:

“Of all parts of the country, I think there is a genuine feeling in Cornwall”.

Unfortunately, he later went on to say:

“we reject the argument made in Cornwall because we want clarity and similarity to stretch right across the country”.—[Official Report, 25/1/11; col. 921.]

In this Bill, the Government have understood before they started that certain places required special consideration. The noble Lord, Lord Fowler, persuaded this House that the Isle of Wight should be given special consideration; the noble Lord, Lord Teverson, has done the same service. Please listen to what the people of these places are saying. I very much hope the Government will accede to what the noble Lord, Lord Teverson, has said.

[Lord McNally]

My Lords, I do not have any doubt about the passion, sense of identity and pride that my noble friend Lord Teverson brings to this debate about Cornwall. We are well aware of the broad views of the various political groupings and of the Members of Parliament. Last night I heard the noble Lord, Lord Myners, explaining why he could not be here today but leaving his own views on this on the record. As always, with this, as with a number of the other amendments that we have discussed throughout this Bill and in recent times, we come again to whether a special pleading—I do not say that in any pejorative sense—outweighs the Bill’s objectives of giving equal weight to the votes.

I also understand the argument being put that Cornwall would rather have only four MPs than five if one of them crosses the Tamar. I am not sure whether that is actually in the best interests of the people of Cornwall. I do not really understand the argument that the pride and the identity—the pride in Cornwall’s rich history and the talk of strong community—that we have heard of will be diminished simply because one MP is going to take responsibility outside Cornwall. The answer to my noble friend Lord Newton’s question is that I totally agree that there is no unique argument about river borders and we have not applied that in the Bill.

I recognise the strength of feeling in Cornwall but I cannot agree that Cornwall’s position is similar to the Scottish island constituencies in terms of why the exceptions were accepted. By this, I mean that the Bill originally provided for exceptions on the practical level. Without these exceptions, we would be faced with constituencies that would be impractical for Members and constituents and so would deny effective representation. In other words, the genuinely extreme geography of the dispersed Scottish island groups does not make it possible to combine them with the mainland, for practical reasons. If we look at the Scottish island groups in this way, we do not think it possible to argue the same case for Cornwall.

I recognise the strong sense of identity that many have in Cornwall. I do not agree that parliamentary constituencies can create or destroy that identity. I believe that a parliamentary constituency can cross the boundaries of a local authority, without taking away at all from the sense of identity of each constituent community within that constituency. The fact that a parliamentary constituency might cross boundaries, be it in Ayrshire or Cornwall, in no way takes away from that sense of identity. I repeat; I have heard no argument that convincingly sets out the opposite case.

I know that we have had a lot of fun about Cornwall and Devon. I occasionally have jousts with my noble friend Lord Shutt about the relative merits of Lancashire and Yorkshire. That is part of a long tradition within our United Kingdom but it is very difficult to push those arguments too far. Further, I argue that there is strong evidence to support the case that constituencies can and do exist that contain more than one community with more than one sense of identity. Many Members of the other place represent diverse communities today, from constituents with rural and urban communities to those containing the speakers of dozens of different languages, all of whom have their different cultural identity. Belonging to one constituency does not detract from one or diminish that diversity. I believe that Members of the other place who are in that situation do an excellent job representing the various interests of all their constituents.

Again, I recognise the strength of feeling and pay tribute to the campaign that my noble friend has waged, but I cannot agree that we should depart any further from our objective of greater equality in the value of votes unless the geographical ramifications of doing so might create an impractical constituency. We do not see a sense of local identity and the setting of a parliamentary constituency as an either/or decision. Instead, we seek the best balance between respecting a local objective and a national one. Locally, the opportunity to voice one’s opinion to the Boundary Commission at a public meeting means that those commissions will be able to take local factors into account on a case-by-case basis. Nationally, we want electors to know that their vote counts and has equal weight as much as we possibly can. The Bill, we believe, presents the best balance between those two important principles, so, although I respect his passion, I invite my noble friend to withdraw his amendment.

--- Later in debate ---

[Lord McNally]

That is a very valid point that could be looked at. Successive Governments have relied on the goodwill of Members of this House to take on considerable duties and responsibilities. Again, I do not rule out looking at those matters. However, now is not the time to legislate on the issue. The reduction in the size of the other place will not come into effect until the next election in 2015. It would be much better to consider these questions closer to the time, when the parliamentary landscape will be much clearer. I assure noble Lords that we are looking at this question, but it does not need to be answered—and it would be wrong to answer it—in the Bill. Therefore, I invite the noble Lord to withdraw his amendment.

I am grateful to the noble Lord, Lord Howarth, for tabling Amendment 27FA. The amendment is similar in principle to that tabled by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Bach, so I shall be brief in my response. We are sympathetic to the intention of the amendment. The Government are keen to investigate the options for addressing the issue, and keen to hear any thoughts that noble Lords may have. We recognise the noble Lord's desire to limit the payroll vote. However, even with the provisions of the amendment, were the number of parliamentary private secretaries to be increased before a general election, a post-electoral reduction would not introduce the changes that the noble Lord intends. The issue needs further consideration and we cannot commit to making these provisions in the Bill.

We do not wish to see an increase in the payroll vote as a result of the Bill, but now is not the right time to legislate on the issue. The Government believe that it would be better to consider the issues after the change in the political landscape that will be brought about by the Bill has been made clearer. As I said, the issues raised are very real ones about the relationship between the Executive and Parliament, and even in eight months, the Government have established a record that means that the realism of the noble Lord, Lord Boateng, is more appropriate than the cynicism of the noble and learned Lord, Lord Falconer. We will address these matters and I ask the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

The noble Lord, Lord McNally, has the respect of the whole House. However, with regard to the two areas to which he referred, the Government’s record over the past eight months has been dismal. The first issue that he mentioned was the Government’s respect for Select Committees, but I have today been shown a letter sent by the Constitution Select Committee of this House, agreed by every single member of that committee, complaining about the fact that the Government did not provide a reply of any sort to their comments on this Bill. The Select Committee said that now that the proceedings are almost over, any reply would be “of no value”. Therefore, the Government are wrong to claim that they have a good record on Select Committees. Secondly, as my noble friend Lord Howarth of Newport said, the Government now have the biggest payroll vote in history.

Therefore, in my view it is misplaced, first, to complain that we should admire the Government for what they have done in those respects over the past eight months, and, secondly, to ask us to trust the Government in relation to delaying the reduction in the size of the Executive proportionate to the reduction in the number of MPs. The noble Lord asked why we should do that now when it would not come into effect until 2015. However, we are legislating now to reduce the number of MPs, and therefore the obvious time to make the change is at the same time. I am completely unclear what further information is required to make a decision about this, the Government having said that they support such a reduction, and so I wish to test the opinion of the House.

--- Later in debate ---

[Lord McNally]

As I have said before, many of the dynamics of this, and much of the cynicism from the Opposition, will be overtaken by the sheer dynamism of the Government’s reform programme.

If these amendments were accepted, there would be a real risk that the deliberations of the committee and the publication of its review would interfere with, and even potentially undermine, the ongoing boundary review. That could result in fighting the next general election on the basis of unequal constituencies which are based on electoral data that are 15 years out of date. The cynics might even suggest that that has been the motivation behind much of what the Labour Party has been about these last—five months, is it? Secondly, if the review were conducted on the basis of an anticipated reduction of constituencies, the advantage of taking into account what the Bill’s actual effect had been would be lost.

If we put in train the review next month it will be little more than a continuation of the debate that we have had over the past few weeks. Although I know that many noble Lords will be suffering withdrawal symptoms, I think that we should resist this proposal. We have had a very thorough discussion and debate on the reasons that the Government had in mind when they provided for this reduction of the size of the other place. Noble Lords opposite have returned many times to the Government's rationale, probing carefully at each stage of the Bill’s passage through this House.

The culmination of these debates was yesterday, when we debated the proposal for a committee of inquiry moved by the noble Lord, Lord Wills, and the amendment that effectively retained the number of constituencies in the other place moved by the noble and learned Lord, Lord Falconer. Noble Lords tested the opinion of the House on both those amendments and both those amendments were disagreed. Given that, I feel that it is now right that we press on with the boundary review and consider its impact when we have the hard evidence of the impact that it has had. That would have two advantages. First, it would move on from the useful debates that we have had about what might be the case, to see what actually was the case. Secondly, it would allow the aim of the Bill to be achieved, which all sides of the House have said that they are in favour of—that the next election will be based on more equally sized constituencies and the most up-to-date electoral data available. I therefore ask the noble and learned Lord to withdraw his amendment to my amendment.

[Lord Falconer of Thoroton]

My Lords, there is force in what the noble Lord says about the rejection yesterday of the amendments on a committee of inquiry. I therefore beg leave to withdraw my amendment.

--- Later in debate ---

[Lord McNally]

My Lords, I am grateful to all noble Lords for their contributions. Perhaps I should put the statistics given by the noble and learned Lord, Lord Falconer, into place, as I could see a few puzzled faces when he mentioned the figure of £168,000 as the cost per Peer. I thought I saw the noble Lord, Lord McAvoy, take out his pocket calculator to work out why he was getting a fair amount less than £168,000 for attending this place. As newspapers love to bandy around such figures, it is better to put on the record that expenses drawn by most Peers for attending this place average out at about one fifth of that figure. Let us not get canards about—

[Lord Falconer of Thoroton]

I completely accept that and I completely accept that £168,000 could not possibly be the costs that an individual Peer draws from the House. I quite understand that, without this correction, people might well have understood that that was what I was saying. However, I was saying that obviously the cost of a Peer is most certainly not simply the expenses that he or she draws but also particular costs such as the provision of a room, heat and support which go up by reference to Peers; and that comes to a lot more. The marginal costs are obviously significantly more than the expenses drawn by individual Peers.

[Lord McNally]

More and more, the noble and learned Lord reassures me that he was in the MoJ and not the Treasury. I accept that.

I should also like to associate myself with the comments about the quality of newcomers. I really think that the new intake has established itself with authority and that it adds to the strength of the House. As to my own credentials for replying to this debate, before the 1997 election, I was on the Cook-Maclennan committee—the Liberal Democrats and the Labour Party—which discussed reform of this place. Indeed, at one stage in that committee we considered the concept of a great reform Act that would tie all the constitutional reforms into one great Bill. However, we backed off doing that due to the complexity of such a measure.

I should point out right at the beginning that, interestingly, throughout our history there has never been an interdependence in terms of reforming the two Houses. The oft-quoted 1832 Bill was a reform of the House of Commons; it did not touch the House of Lords. The 1911 Bill was a reform of the House of Lords—it did not touch the House of Commons—as was the 1999 Act introduced by the previous Labour Government. Therefore, there is no interdependence in this regard.

I put forward another thought in this interesting debate in relation to the Wakeham commission. I now freely admit that I think we missed an enormous opportunity in not accepting the Wakeham commission’s report. At that time I was a “big bang” reformer who thought that reform could be introduced quickly. I remember saying to the noble Lord, Lord Rodgers of Quarry Bank, that I could not believe that the Labour Government, given the majority that they had, would leave Lords reform on the shelf. I also said, “Wakeham is too timid. Let us wait and they will come forward with a real ‘big bang’ reform”—little did I know. However, as I have said before, there is a lot in the Wakeham report that could be revisited when we consider Lords reform. I also believe that the Steel Bill constituted a missed opportunity on the part of the previous Government. They could have accepted it and it would have been a major step forward.

However, that is in the past. The noble Lord, Lord Forsyth, asked how we could justify enlarging the House of Lords while reducing the size of the other place. The only frank answer to that is, “with great difficulty”. It contrasts with what we are doing in this Bill. However, as I have said, the reason for that in part is the skill with which this House has deflected reform. We are left with a situation where it is difficult, if not impossible, for Peers to resign. We have always had to face the problem that without the ability to resign, and with Peers sitting for life, the composition of this place would be adjusted when Governments changed, and that there would always be a ratcheting upwards unless we addressed more fundamental reform.

However, the illogicality—or the lack of kilter—in what is happening should not be judged as a snapshot but, as I have said before, as part of a moving picture of dynamic reform by the Government, who will bring forward measures. As I explained, the Deputy Prime Minister is chairing a cross-party committee and one of the key issues that it is discussing is the size of the reformed Chamber. We are working to publish a draft Bill for pre-legislative scrutiny early this year.

I understand the variety of views that have been expressed. As one who wants a reform that works, I hope that the pre-legislative scrutiny committee drawn from both Houses will be broad based and will give all sides the chance to put forward their ideas and fears. I am not sure that I have ever accepted the fears about gridlock. Many countries in the world have two elected chambers and manage to work out relationships. I know that many books have been written about the dangers of gridlock developing in the United States and elsewhere but it is possible to work it out. I foresee developments emerging such as a business committee of both Houses which would do that. As I said, I sat on the Cunningham committee. I have always taken the view—the noble Lord, Lord Grocott, and I have debated this—that the relationship between the two Houses and our conventions would hold and would be tested by the two Houses, as they have always been. Therefore, these fears of doom and gloom are much exaggerated.

The Government believe that more can be done to allow Members of this House to leave permanently so that the size of the House can be reduced. The Leaders Group on Members leaving the House, chaired by my noble friend Lord Hunt of Wirral, published its report on 13 January. The Leader of the House has asked the Procedure Committee to come forward with proposals to put these recommendations into effect. I do not think that I would breach any secrets of the Procedure Committee on which my noble friend and I sit by saying that these proposals are on the agenda for our next meeting.

There is a Bill before the other place that seeks to limit the size of this House. The Parliament (Amendment) Bill was introduced by Mr Christopher Chope on 26 October 2010. Although the text of the Bill has not been published, it is clear from its Long Title that it will deal with the number of Peers. The size of this House is an important issue. But determining the size of the other place and this House do not have to be connected to one another in legislation. As I pointed out, they never have been in our history. The Bill aims to deliver concrete improvements to our electoral system as we find it today. Noble Lords will have ample—

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Monday 7th February 2011 Lords Chamber

[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.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Monday 7th February 2011 Lords Chamber

[Lord McNally]

That the Report be now received.

[Lord Falconer of Thoroton]

My Lords, as we begin Report on the Bill, we believe that it is important that the House is updated on our position on the Bill. We invite no prolonged discussion at this stage on the timing of Report.

The Bill is acknowledged on all sides of the House to be a significant constitutional Bill that has not been the subject of what is regarded as the norm for such a Bill—either public consultation or pre-legislative scrutiny. Report has been brought forward without the 14-day gap that convention requires between Committee and Report. These conventions exist for a reason. That 14-day gap allows consideration and discussion in Committee and then the formulation of amendments for Report and preparation for their debate. There has been one sitting day between the end of Committee and Report. It is for your Lordships to judge whether the many issues raised by the Bill meant that it was never going to be possible to scrutinise it properly in the time sought to be allotted by the Government.

We think it right to register the point about the gap, but the mood of your Lordships’ House has been to encourage the participants to resolve the problem by negotiation. The Opposition have supported and participated in this actively. They have been greatly assisted by the intervention of the Cross-Benchers. We have negotiated at all times in good faith. The Government indicated a basis for agreement on the main issues, to which the Cross-Benchers have responded, with our support, in accordance with the Government’s suggestions. Cross-Benchers have discussed amendments with the Government in accordance with what they believed the Government were indicating, but no agreement has been reached.

Our system of self-regulation works only if the parties are willingly to negotiate honestly and skilfully and can reach agreement. However, we want to help the process and to do so we have agreed today that we will seek to complete Report on Part 1 of the Bill today. There is a way to go, but my sense is that your Lordships want to get on. It is a token of our good faith that we seek to complete Part 1 today. No one could suggest that that was not very reasonable progress. We want this House to consider these matters in a reasoned and reasonable way, and we very much hope that the Government will respond to this. We want this House to be able to consider and, as appropriate, vote on the key issues before us on Report to encourage resolution by agreement.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Wednesday 19th January 2011 Lords Chamber

[Lord Falconer of Thoroton]

I agree—not from experience but from what I have been told—that whether or not you are a registered elector does not make any difference to how a Member of Parliament will treat you.

I also agree that, if a constituency has a very large population, that should be reflected in what happens. That is why—although this is a probing amendment and I am speaking tentatively, I shall be interested to hear what the noble Lord, Lord McNally, says—the most attractive way of dealing with the issue, in my view, is through the amendment that might be moved by my noble friend Lord Boateng if he is here. Amendment 67A in his name would provide:

“No constituency shall have a total population which is more than 130% of the electoral quota”.

Just as it is accepted that the limit cannot be increased for a constituency with a large geographical area, there should be a similar provision for constituencies with a large population. I have a note to say that my noble friend Lord Boateng is not here, but it is legitimate to refer to his amendment as one of the possible routes that the Government could go down.

The Opposition’s position is that they do not favour the approach of my noble friend Lord Lipsey, although we think that it is a sensible probing amendment. We are attracted by the idea that my noble friend Lord Boateng has put forward, and I shall be interested to hear what the noble Lord, Lord McNally, has to say about that.

The amendment of my noble friend Lord Grocott concerns a different issue. It seeks to provide that, in relation to the plus or minus 5 per cent, regard should be had to the fact that an area may be having rapid increases in population. As we understand it, such matters can be taken into account under the current arrangements, but it does not look as though such matters could so easily be taken into account under the new arrangements. When boundary commissioners are considering what the boundaries should be, it would be sensible for them to take that into account.

In all those circumstances, the Committee can see what we favour in this. We will be interested to hear what the noble Lord, Lord McNally, has got to say.

[Lord McNally]

My Lords, when I saw Amendment 66ZB on the Marshalled List, with its strange fraction of U over 598, I thought, “I hope to God it’s Jim Wallace’s turn to answer the debate”. I hope to match the noble and learned Lord, Lord Falconer, in his grasp of statistics, but I certainly cannot match that of the noble Lord, Lord Lipsey, because, thank God, I do not sit up at 3 am poring over electoral statistics.

[Lord Falconer of Thoroton]

You will.

[Lord McNally]

Noble Lords on all sides of the Committee will take the point made by the noble Lord, Lord Reid, that everyone who has ever stood for Parliament and has been lucky enough to win has said in their victory speech that, although they were grateful to the people who had voted for them, it was their determination to serve everyone in the constituency. That is certainly the case.

--- Later in debate ---

[Lord Falconer of Thoroton]

I agree with the noble and learned Lord, Lord Mackay of Clashfern. My experience as a Minister was that when an amendment was passed even in opposition to the Government in Committee or at any stage of the Bill, the Government would bring the Bill up to date. Therefore, when it went back to the other place it would be a coherent Bill on which the Commons could then form a view about which amendments to accept. I completely agree with my noble friend Lord Lipsey. I hope that the Government will indicate that they will make the necessary amendment to reflect what happened earlier on today.

[Lord McNally]

Not exactly, because one has to realise that, as noble Lords will know, the other place has still to take a view on the amendments that we pass. It may well be that all the amendments that have been threatened or made may succeed. Believe me, if I am not convinced by the eloquence of the noble and learned Lord, Lord Falconer, or the command of figures by the noble Lord, Lord Lipsey, I certainly have a tingle between my shoulder blades when my noble and learned friend Lord Mackay announces that he is about to abandon ship.

By the way, it has just occurred to me that of course I would not, as the noble Earl, Lord Ferrers, pointed out, make any comment about what was happening below the Bar, but it crossed my mind that government Whips in the other place might be shipping younger Members down here to take a look at us to stiffen their vote when we come to reform of the House of Lords.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Wednesday 12th January 2011 Lords Chamber

[Lord Falconer of Thoroton]

I congratulate my noble friend Lord McAvoy on his courage in moving the amendment. The absence of the reference to the Speaker of the House of Lords—the Lord Speaker—presumably means that it is not intended that there should be a debate on the report in the Lords. Presumably the argument is that, by giving the report only to the Speaker of the Commons and not to the Speaker of the Lords, the Government envisage a debate in the Commons but not here. However, it would obviously be important for both Houses to debate it. As we said earlier in our debates, this House has tended to be more effective in relation to Boundary Commission reports—1969 has been referred to. I am glad to see that the noble Lord, Lord McNally, is about to respond. I do not know where he was in 1969. He may well have been helping the then Home Secretary, who was perhaps responsible for trying to go round the corner in relation to the Boundary Commission report. I think that it would be good for democracy if both Houses debated such reports produced by the Boundary Commission. Is the fact that the Lord Speaker is not referred to intended to mean that the focus should be on the Commons, or is there no such intention? If the Government are happy for both Houses to debate the report, might a way of indicating that be by saying that the report should go to both Speakers?

[Lord McNally]

My Lords, first, I reassure the noble Lord, Lord McAvoy, that he and I have bonded—I think that that is the only word that can describe it—since he came to this House. If my noble and learned friend Lord Wallace of Tankerness should be threatening in any way, the noble Lord would find me between him and my noble and learned friend in an attempt to protect him.

We have had a fair amount of paranoia during the Committee stage of this Bill. The Opposition have suspected us of rigging this and that, but the simple fact is that the report is delivered to the Speaker of the House of Commons in his capacity as the ex officio chair of the Boundary Commission. He then lays it before Parliament on receipt, which ensures that Members of both Houses have the opportunity to read it. The laying process involves papers being received in the Journal Office and reported to the Commons in the daily Votes and Proceedings, and to the Lords in the daily minute, after which they are said to have been laid on the Table of the House. Therefore, Members of both Houses are able to see them. I have no doubt that, once they are laid on the Table of the House, there will be usual channels discussions to enable a debate in both Houses. There is nothing up my sleeve and no mystery here; this just involves the basic procedures of the workings of the Boundary Commission. I hope that the noble Lord will withdraw the amendment.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Wednesday 15th December 2010 Lords Chamber

[Lord McNally]

I am sure that that intervention has been noted. Indeed, I am looking forward to an e-mail on Monday that says: “Sorry, can’t get down today. Snowed in. G Foulkes”. Perhaps I am hoping for too much. As I say, I hope that the noble and learned Lord, Lord Falconer, will take what I have said in the spirit in which it is intended. As the noble Lord, Lord Grocott, said, we refine these issues each time. The noble Baroness, Lady Liddell, rightly reminded us of how things can go badly wrong. We would like to talk further about this.

[Lord Falconer of Thoroton]

If the noble Lord is saying to me, “In principle I agree about the problem that you have identified, so let’s talk about how we solve it”—the problem being that no political party should be allowed to use its political broadcast to promote or demote any of the electoral systems at issue—I am more than happy to wait until Report stage. The noble Lord read out parts of his brief in a jokey manner, but that gave him complete room to say, “No, we are not going to make any changes”. Therefore, I need something a little more than what he said. I need an indication that in principle he accepts the broad problem that we have identified.

[Lord McNally]

I am afraid that I cannot do that. I am offering to talk very seriously about this. I say in a strictly non-jokey way that there are issues that we have to look at if we are not to fall into innocent traps, as the noble Baroness, Lady Liddell, reminded us. 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.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, I indicated in my remarks on the first group of amendments that I proposed to Clause 5 that the clause was introduced to deal with the problems identified by the Political and Constitutional Reform Committee in the other place. In principle, we think that it is a good thing, although other issues need to be dealt with, including the point about the internet made by the noble Lord, Lord Lamont.

I have one question for the noble Lord in relation to that. On the face of it, any expenses incurred in making a broadcast for a referendum—for example, if you got Steven Spielberg to produce it and my noble friend Lord Puttnam to direct it, or the other way round—would not count as expenses. Is that really the Government’s intention?

On a general point, can the Minister say what principles underlie Clause 5 and, in the light of those principles, what is the answer not just to the questions that I have raised but to those raised by other noble Lords?

[Lord McNally]

My Lords, I thank noble Lords for their questions. The principle is that the clause was inserted in response to the committee in the other place asking for clarification. We have put Clause 5 into the Bill to ensure that media outlets are not caught by spending restrictions that are in place in terms of publishing information about the referendum. The media play a vital role in building public awareness and presenting facts and opinions on the matters raised by the poll. This amendment ensures that the media's ability to carry out that role and to exercise the usual freedom of the press and broadcast media is not restricted in any way. That was our intention.

On the point that the noble and learned Lord has just raised, I will have to check again with the Electoral Commission, but I believe that if in making a referendum broadcast, one or other of the campaigns was to indulge in the kind of expenditure to which he referred, that would be counted as expenses.

--- Later in debate ---

[Lord McNally]

And this one says, “Have a go at Rooker, while you are at it”. I will take away this issue of the roving multi-millionaire splitting up his money. If I was related to him, I would want him sectioned before he spent the family fortune. In the mean time, I again ask the noble and learned Lord to withdraw his amendment, and I ask the House to adopt Clause 6 in due course.

[Lord Falconer of Thoroton]

My Lords, it is important to identify what we are trying to achieve here. I think everybody in this House would agree that the right expenditure limits are those which create a level playing field. Both sides should be subject to the same limits. The difficulty about the rules that apply from PPERA is that that does not appear to be the case on the facts of this particular referendum. Perhaps I may identify two specific circumstances as to why that is. The way that PPERA deals with the limits is by setting three separate limits, which are cumulative. The first limit allows the designated lead organisation on each side—the leading campaign organisation for “yes” and the leading campaign organisation for “no”—to have a limit of £5 million. That plainly demonstrates equality there. The second limit allows each political party that got between 20 per cent and 30 per cent of the vote in the previous election to have a cumulative limit of £5 million. That is added to the £5 million for the designated lead organisation. In the current arrangements, we have two political parties that express no view on whether they support the change to AV and one political party that supports the change to AV. The effect on the facts of this case is that there is the designated lead organisation limit of £5 million, and in addition there is £5 million that the Liberal Democrats get to spend on the campaign. Therefore, there appears to be an uneven playing field right from the start.

Separately and in addition to that point is the point made by practically everybody around the Chamber that, if you are an authorised participant—either an individual or a corporation—you can donate up to £500,000. Therefore, there is very little difficulty for somebody who supports one of the campaigns—whether they are companies, individuals with families, or a group of people who have a particularly concerted view—to give, in effect, an unlimited amount of money to one or other of the campaigns.

Our proposition is that, first, you should reduce the amount of the limit for political parties, because otherwise you reach an unfair result. That is precisely the point that the noble Lord, Lord Lamont, made in 2000. It is obviously correct in relation to this because it obviously leads to a limit of £10 million for the “yes” campaign and a limit of only £5 million for the “no” campaign.

Regarding the rich individual, no answer of any sort was given by the noble Lord. I would have been prepared to accept some answer in relation to, first, the party-political point and, secondly, the point about rich individuals. However, not one answer came. The noble Lord merely said, “We are confident that the rules are okay”. This is the same Minister who, in the debate on the previous group of amendments, agreed to go away and think about changing the rules, which he said were not adequate to deal with the position. He is shaking his head. He is right: he did not agree to that but he agreed that he would discuss it, which rather implied that he accepted that there might be something wrong.

Perhaps I may quote what the Electoral Commission says about the two amendments that we are putting forward:

“These are significant changes to the provisions for spending limits at UK-wide referendums set out in the Parliamentary Parties, Elections and Referendums Act. Parliament may wish to consider whether the change might affect the ability of campaigners to put their arguments effectively to voters and the potential implications of changing one aspect of the PPERA rules on campaign spending without further consideration of the overall regulatory structure”.

Therefore, the commission is saying, “Don’t change anything because that might lead to the whole thing falling apart in some way”.

The noble Lord, Lord McNally, says, “If we have made a mistake in relation to these rules, we’ll learn from this”. I think that when we are scrutinising this Bill, our obligation as a House is to consider the merits of the changes that have been proposed. We should not treat the referendum—on a matter which Mr Nicholas Clegg has described as the most important electoral change since 1832—as an experiment but we should have the courage of our convictions and change the system if we think it is wrong. Surely the one thing that we have learnt from America is that money does buy elections, and all the rules that we introduced were intended to stop that happening. However, these rules do not contain fair limits that apply to both sides.

The noble Lord was so good on the first group of amendments and so bad on this one—in that he gave absolutely no explanation and did not really deal at all with the arguments—that I have no option but to test the opinion of the Committee.

--- Later in debate ---

[Lord McNally]

As we drift down this stream, we do, I confess, go into inlets and rivulets.

[Lord Falconer of Thoroton]

This provision introduces civil sanctions in relation to criminal offences set out in Schedule 9. As I understand it, the criminal offences, of which there are 12 in paragraph 8, are designed to ensure that either permitted participants or authorised—

Sorry, there is not much point me asking a question if you are chattering away.

--- Later in debate ---

[Lord Falconer of Thoroton]

The offences under paragraph 8 are knowledge and ought-to-know offences. Can the noble Lord give some indication, because it will obviously be important to the people involved, of what circumstances will determine whether the sanction is civil or criminal? The offences have maximum terms. What is the maximum civil sanction that can be applied? Who will determine whether it is a civil sanction or a criminal sanction?

[Lord McNally]

First, I do not believe that the role of the Electoral Commission is as passive as the noble Lord, Lord Soley, suggests, as was demonstrated by the fact that it suggested a better question for the referendum, which was taken on board by the Government and implemented in the Bill. I supported the establishment of the Electoral Commission and welcomed the introduction of political input into its deliberations. I remember when we first discussed it, the noble Baroness, Lady Gould, and others and I pointed out that there was a necessity to have some sensitivity about how political campaigning was carried on by mainly voluntary organisations. The Electoral Commission has performed its duties well, and I have every confidence in its being able to carry out its responsibilities under the Bill.

--- Later in debate ---

[Lord Falconer of Thoroton]

I did not know what Mr Bill Cash said in the other place but it would help in relation to respect for Parliament if the noble Lord, Lord McNally, would think about withdrawing what he said.

[Lord McNally]

I have been around this Parliament for 40 years and I do not need lectures from the noble and learned Lord about respect for its traditions and for its importance. I did not suggest anything other than something he knows darn well. For as long as I have been here, and long before, Governments have brought in guillotines and Oppositions have complained about lack of time and scrutiny. That is all that I said. That is all that is in Hansard. I am not going to take lectures from the noble and learned Lord about respect for this Parliament and its institutions. I have given my life to this. I believe in it passionately. I respect it as much as the noble Lord, Lord Rooker, respects it. No more, no less. But I am not being lectured to or allowing my words to be twisted. I am simply saying something that every noble Lord knows is a simple truth—nothing more, nothing less—and certainly with no disrespect to Parliament.

[Lord Rooker]

Say sorry to Chris, then.

[Lord Falconer of Thoroton]

I have understood the Minister to say that the interventions by Members of Parliament down in the House of Commons were done for time-wasting purposes. I regard that as expressing contempt for their contributions. That is what I was suggesting he might think about withdrawing.

[Lord McNally]

More than one person has commented that the Opposition spent overlong on certain parts of the Bill and then used that as an excuse for not dealing with other parts of the Bill. Just as I have argued with colleagues who have got a little tetchy about the Opposition’s tactics, I know full well that, as one of my old text books used to say, the principal weapon of an Opposition is delay. I do not object to that, but neither do I fail to recognise it when I see it.

--- Later in debate ---

[Lord McNally]

My Lords, if, when he reads Hansard, the Member for Rhondda is hurt by my remarks, I will try to comfort and reassure him that there was nothing personal in them.

These are minor and technical amendments which ensure that there is single definition of “registration officer” which applies throughout Part 1 of the Bill. This single definition replaces the existing definitions given in the various provisions in Part 1, but does not change the meaning. The amendments provide that “registration officer” has the meaning given in Section 8 of the Representation of the People Act 1983. For England, Wales and Scotland, the individual is the officer who has been appointed to this role for the relevant area. In Northern Ireland, the Chief Electoral Officer for Northern Ireland is the sole registration officer. I beg to move.

[Lord Falconer of Thoroton]

A drafting point: there appear to be random definitions contained in Clause 7(1). For example, we do not have definitions of “regulated transaction”, “responsible person” or “relevant donations”, which are terms referred to. Yet, suddenly, we have a definition of “registration officer”. What is the basis upon which some terms are defined in Clause 7(1) and not others? Will this not lead to confusion?

[Lord McNally]

As I understand it, this is an attempt to clarify the specific case of “registration officer”. We do not anticipate the kind of confusion that the noble and learned Lord anticipates in other definitions, but it is important to have a common definition for registration officers.

[Lord Falconer of Thoroton]

I do not want to be a total brute here, but will the noble Lord write to me? It is pretty clear what “registration officer” means throughout the Bill, but if you do not also define the other terms, there is the possibility that there will be some difference among courts as to what it is meant. Can the Minister set out the basis for selecting some terms to be defined but not others? If he would like to write to me about that, I would be perfectly happy. However, if we are trying to make this Bill a little better, setting out that basis is worth while.

[Lord McNally]

The noble and learned Lord has brought an entirely new atmosphere to the debate for which I am most grateful. I offer to write to him on the specific point.

--- Later in debate ---

[Lord Falconer of Thoroton]

I take the point in relation to Scotland. That is probably the only place where one can see some logic in the proposals. However, one cannot see any logic in relation to the rest of the UK. Therefore, maybe the answer—and if the noble Lord were to make proposals on this I might support him—is for us to stick with the Scottish constituencies, but leave everything else to be done on the basis of Westminster constituencies. There needs to be some explanation for why this extraordinary procedure has been adopted.

In addition to the points about practicality, there are two others. First, we have to do this without the benefit of the Electoral Commission’s views, because, as the noble Lord, Lord Grocott, said, the commission has said that that would simply delay the referendum. Sadly, the commission has not given this House the benefit of its views on whether this proposal is more practical than the one in the Bill. Secondly, there is a real force in the argument which states that if we are talking about parliamentary constituencies and how they vote in the future, there is a logic and a force in saying, “Let’s see how individual parliamentary constituencies voted”, because, for the life of me, I cannot see the logic in saying, “We’ll disclose how a London borough or the whole of Northern Ireland voted, but we won’t tell you how individual constituencies voted”.

[Lord McNally]

My Lords, if anything that has happened over the past four hours suggests that I am not enjoying this process, it is entirely untrue. I will write to Chris Bryant in the morning. I would not want him to think that I was attacking him personally. I am certainly not someone who has objected to the interventions of the noble Lord, Lord McAvoy. A number of Labour MPs have stopped me with a look of sheer amazement and said, “You heard Tommy McAvoy speak?”.

On the point about the Electoral Commission, I hope that noble Lords do not put sinister interpretations on this matter. If our intention is to hold the referendum on 5 May, as is absolutely clear and we continue to make clear, it is no more than the Electoral Commission’s duty for it to say that, if amendments A, B or C were to be passed, the House should be aware that this would make the situation more difficult, impossible, or whatever. The commission should not leave the House to pull the trigger and not tell it whether the gun is loaded. I do not think that the commission has done any more than that. If the Committee wants to pass the amendment, knowing its repercussions, it is open to do that, but it is not improper to say that there would be consequences to an amendment such as this.

Being a skilled advocate, the noble and learned Lord, Lord Falconer, can draw out these various bodies and make a case for a real mishmash of voting areas. In fact, the provisions that we have included in the Bill in relation to voting areas for the referendum ensure, as much as possible, that the same boundaries will be used for the referendum on the voting system as are used for other polls with which the referendum is combined. There is nothing more or less to it than that. The intent of the clause—as is the case in so much of the Bill—is to make the core decision that the electorate are being invited to make as simple as possible.

On the specific question of the noble Lord, Lord Rooker, I can tell him that the City of London is designated separately because, as he will know, it is a separate local government area within London. The other areas are the London boroughs.

[Lord Falconer of Thoroton]

If the principle is that the counting areas for the referendum are to be as close as possible to those for the other elections taking place on the same day, why will there be one counting area for the whole of Northern Ireland, given that it will be holding Assembly elections on the same day?

[Lord McNally]

I will write to the noble Lord on that. It seems that one element of confusion is that we are not asking United Kingdom constituencies to make a decision—we are asking for a national vote. It will be a yes or no poll, designed on a national basis.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Monday 13th December 2010 Lords Chamber

[Lord McNally]

That Christmas tree lifts the spirits and lights these gloomy days.

The amendment seeks to amend Clause 2 to enable 16 and 17 year-olds to participate in the referendum. As I have said before, the amendment is similar in intent to one tabled in the Commons, which was lost by 196 votes to 346. Then as now, the Government’s position on the franchise and in all other aspects relating to how the referendum is run is that we should follow the arrangements for parliamentary elections unless a particular circumstance is presented by the referendum that would require us to adopt a different approach. There is no requirement here to depart from the standard approach to the voting age of 18 that applies in those elections. The Government have no current plans to lower the voting age. I recognise that there are different views on whether the voting age in this country should be lowered to 16, but if we are to have a debate about reducing the voting age it needs to be had in relation to elections more generally. The passage of this Bill is not the right platform on which to discuss that issue.

There is a wider debate to be had about the voting age more generally and we need to consider the arguments for and against. I recommend that, when there is a Bill to bring the voting age down to 16, tonight’s Hansard should be required reading for anybody persuaded in that Bill. My noble friend Lord Newton, to whom I can almost say “Welcome home”, is right—this Bill is not the right forum for that debate. I urge the noble Baroness to withdraw her amendment.

[Lord Falconer of Thoroton]

If this is not the right Bill, could the Minister deal with the practical issues to which I referred, as that would influence me in relation to whether it was the right Bill? He has not dealt with any of the arguments; he has just said, “Wrong place, close it down”. But it would be of interest to the House to hear the practical objections to putting this measure in.

[Lord McNally]

On the practical objections, I could almost refer to the opening three or four lines of the speech of the noble Lord, Lord Soley, when he summed up my arguments perfectly. We are determined that this Bill will not be a Christmas tree. It is a simple Bill in its objectives of fair votes on fair boundaries. That is what we are aiming to achieve.

One interesting thing was that the noble Lord, Lord Rooker, raised the issue of using the national insurance database to register all 16 year-olds. Almost as an example of how this Government are thinking about the broader issues involved, we are running data-matching pilots next year and we will be looking at how we can use the wider government database to get more people on the register. As the Minister responsible for data protection, I would like to see some of the implications of that. That is why some of these things cannot be rushed.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Wednesday 8th December 2010 Lords Chamber

[Lord Falconer of Thoroton]

The Cabinet Secretary would not have had any vote on legislation, but he might have had an even more important influence, I respectfully suggest, on legislation than people voting here would. What is more, as we can see from the presence of the noble Lord, Lord Armstrong, he could reasonably have expected to come here to legislate at the end of it. There are lots of important people in the state and a lot of people with privileges, as the noble Lord, Lord Grocott, says. However, I respectfully suggest that the key point is that this is a democracy and the Government are chosen not from the Lords but from the Commons. The key question is: why are we excluded from being democratic participants in choosing the Government? The essence of democracy is that it is not just a process; it also represents values. The critical value that democracy represents is that we are all equal in the choice of the Government. Why are we not equal in that respect? I do not think, with respect, that either the answer that the noble Lord, Lord Hamilton, gives—“They will elect us next”—or the answer that the noble Lord, Lord Grocott, gives, which is, “Well, we are jolly privileged”, is an answer to that essential democratic argument. I would be interested to hear what the Leader of the House has to say.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords—

[Lord Falconer of Thoroton]

I would be equally interested in what the Deputy Leader of the House has to say.

[Lord McNally]

My Lords, I have been stripped and ready for action for three days. As the Leader of the House has pointed out, he and I are joined at the hip on this Bill. However, in that spirit of co-operation, he said, “Tom, you take Clause 2 and I’ll take Clause 1”. That seemed fine at about 7 pm on the first day of this debate, when I thought that I would be coming on straight after the dinner hour. Three days later, I come on with three minutes to go.

This has been an excellent mini-debate and I suggest that those who are interested in it should read the speech given by the noble and learned Lord, Lord Falconer. No wonder he was facing the other way to deliver it; he was giving us both sides of the argument. It is very good that he should do so.

I fully respect the noble Lord, Lord Dubs. I know that he has campaigned on this and that he feels strongly about it. I hope, given what he has said, that perhaps we will get one of the opposition days to debate the issue, or perhaps a Question for Short Debate. The issue is worth debating and I look forward to him carrying on his campaign. The problem is, as he himself acknowledged and, indeed, as the noble and learned Lord, Lord Falconer, acknowledged, that this is not the place for it. It is a good political ploy to use a Bill to hang a campaign on and to get the issue raised and I fully respect the noble Lord for doing so. However, we are concerned specifically with who should vote in the referendum on the parliamentary voting system. Basing the franchise for the referendum on that for the Westminster general election seemed the most sensible thing to do. Yes, we have made a concession in that we have put alongside that noble Lords, who are entitled to vote in other elections. The Government thought that that was a fair and logical approach. I suspect that, if we had not included noble Lords, there would have been an amendment to include them.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Tuesday 30th November 2010 Lords Chamber

[Lord Falconer of Thoroton]

No I do not, and what happened in the Scottish and Welsh referendums indicates that that is wrong. It is a question of being clear that the referendum is intended to be a precursor to legislative change, as it was in relation to the 1997 referendums in Scotland and Wales. The noble Lord is wrong.

For the two reasons that I have given—namely, that an indicative referendum avoids the need for thresholds and allows for a proper debate on AV—I support the amendment of the noble Lord, Lord Rooker.

[Lord McNally]

My Lords, I am grateful to the House for this debate. Observers will see a pattern developing: reform, but not this reform; people did it to decide, but not on this particular date; and we want to help, but only on the basis of delay. I am afraid that most of the comments are based on that approach.

There is, in fact, very little pattern to constitutional reform in this country. The great Reform Bill was passed in the other place by a single vote. The Welsh Assembly referendum was carried by 50.3 per cent to 49.7 per cent. I remember it well. I was just about to go to bed and said to my wife, “I’ll watch this first Welsh result come in, and then I’ll be up to bed”. At about a quarter to six in the morning, the final result that tipped the balance came in. However, I do not see parties campaigning now to reverse that decision.

I remember the Cunningham amendment. The key issue was that George Cunningham was very much against devolution, and his amendment was there to try to prevent devolution and succeeded in delaying it for 20 years.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Monday 15th November 2010 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, I have cited the example of the Railways Act, which was a piece of legislation that dealt with the whole issue, whereas this Bill does not. This Bill leaves two constituencies out.

Finally, as the noble Lord, Lord Naseby, has pointed out, it has been said that the Commons have not declared the Bill to be hybrid. That is true, but no vote was sought and no application pursued. It is for each House to make its own decision, and I strongly urge this House not to accept that, if the Commons reach such a conclusion, we are bound by it. That would diminish the importance and independence of this House on constitutional issues.

[Lord McNally]

My Lords, I wonder whether the noble and learned Lord would correct a remark he made at the beginning of his speech. He said that the noble Baroness, Lady Royall, wrote to me and that I did not reply. In fact, I consulted the Clerk at the Table who is the expert on hybridity in this House. Prompted by the discussion, he wrote me a definitive letter on hybridity, a copy of which I sent to the noble Baroness, as well as placing a copy of the exchange in the Library of the House. I certainly did not ignore the noble Baroness’s letter.

[Lord Falconer of Thoroton]

I withdraw the point. The noble Lord did not write a letter to my noble friend, but it was a bad point for which I apologise. I certainly did not intend to suggest that the noble Lord had been in any way discourteous, and indeed the noble Baroness, Lady Royall, had not for one moment suggested that to me. I therefore apologise to the noble Lord.

The practice of this House is to refer a Bill to the Examiners if the House is satisfied that it is reasonably arguable that the Bill is hybrid. That happened recently in the case of the Bill that covered Exeter and Norfolk. Subsequently, the Examiners held that that legislation was not hybrid. No argument was in fact advanced to them that the legislation was hybrid because a court case after the vote in the House made the issue academic. I hope very much that the House will consider our arguments on their merits rather than on the basis of the previous occasion.

I respectfully submit that this Bill is hybrid. I have dealt with the arguments advanced against, but all that I need to do is to satisfy the House that the case is reasonably arguable. My argument also reflects the merits of ensuring that the process to determine what the exceptions are is transparent rather than just dealing with things by fiat. This Motion would allow a proper approach to be followed in selecting those constituencies that are to be exceptions to the Bill. I suggest that the House should be urging for a non-political basis to this.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Lord McNally

Wednesday 13th October 2010 Lords Chamber

[Lord McNally]

My Lords, personally, I would think nothing so unworthy of the Members of this House. This Bill deals with matters mainly to do with the House of Commons. When it comes here, this House will treat it with the respect due to such a Bill, but will give it the scrutiny that will help the Government in making it a good Bill to take to Royal Assent.

[Lord Falconer of Thoroton]

My Lords, it is such good news to hear about Mr Mark Harper doing well in the House of Commons. In relation to this Bill, regulations are being passed before the Bill has even had its Second Reading in this House. In addition, the referendum will take place on a day that all the evidence to the Select Committee on the Constitution in this House said would be a day on which the referendum would get swamped by the Scottish election general, the Welsh general election and the local elections. Will the Minister explain what the hurry is? Why can the referendum not take place within 12 months from May?

[Lord McNally]

First, I welcome the noble, right honourable, learned and everything else Lord back to the Front Bench. It is said that they never come back, but there he is. A lot of scaremongering and false arguments are being put forward. Various bodies are suddenly elevated in their opinion. The Electoral Commission has said that it is possible to successfully deliver these different polls on 5 May. I suggest that, instead of trying to imply that the process is somehow flawed, we should watch its steady progress where we will deliver a very thorough examination at this end. I am sure that we will have an excellent Second Reading debate and a good Committee stage, and the Bill will be all the better for the deliberations of the House of Lords.

Supreme Court: Retirement Age

Debate between Lord Falconer of Thoroton and Lord McNally

Monday 12th July 2010 Lords Chamber

[Lord McNally]

My Lords, I first assure the noble Lord, Lord Pannick, that the Lord Chancellor and I share the view that reaching 70 is not the end of a contribution to public life. In fact, in this House most think that it is only beginning. The age limit of 70 was brought in by the reforms of my noble and learned friend Lord Mackay. The Lord Chancellor is examining it, and he is also consulting carefully with the judiciary.

[Lord Falconer of Thoroton]

My Lords, I declare an interest: I am only 58. Does the noble Lord, who is a great friend of the Supreme Court, agree that the problem is now urgent? There is a member of the Supreme Court—the noble and learned Lord, Lord Collins—who will be forced to retire after only 18 months in the job of Supreme Court Justice. If the matter is not looked at and dealt with quickly, it will be a great loss to law in this country.

[Lord McNally]

I hear what the noble and learned Lord says. As he knows, there are ongoing arguments for making maximum use of the undoubted talent in the Supreme Court—his point—and about what others rather inelegantly call “bed blockers”. How to bring forward and rejuvenate the Supreme Court must also be fed into this debate.

Queen's Speech

Debate between Lord Falconer of Thoroton and Lord McNally

Thursday 27th May 2010 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, I congratulate the noble Lord, Lord Bichard, on his genuinely good maiden speech. He has very much to offer this House. He was the Permanent Secretary at the Department for Education and Employment from 1997 till 2001, and he practised what he preached. He achieved a lot by change. We have much to learn from him.

I also congratulate with real sincerity the noble Lord, Lord McNally, on his appointment to the Ministry of Justice. He is somebody of real warmth and ability who is extremely popular in this House, and we all genuinely wish him very well.

My noble friend Lady Jay of Paddington wished to speak today; the noble Lord, Lord McNally, should be grateful that she did not. She would have mentioned how loyally the noble Lord served her father and the Labour Party, then how loyally he served the Liberal Democrats and, now, how loyally he serves the noble Lord, Lord Strathclyde, the self-styled tubby toddler.

[Lord McNally]

She did give me a message—she said, “Jim must be spinning in his grave”.

[Lord Falconer of Thoroton]

The noble Earl, Lord Ferrers, in an excellent speech, mentioned the no confidence vote in 1979. The noble Lord, Lord McNally, will remember what Jim Callaghan said describing that event—“Turkeys voting for an early Christmas”. I assume that it is that memory that has led the noble Lord to argue for a fixed-term Parliament, so that if the turkeys with whom he now associates lose a vote of confidence, they will not have to leave government.

What a marvellous sight the coalition is! The language of Cameron and Clegg is the language of love. It reminds me painfully of those “Spitting Image” programmes in the 1980s. Do noble Lords remember the noble Lords, Lord Owen and Lord Steel, and the boy David nurtured in the arms of the noble Lord, Lord Owen? They had to choose a name for the leader and David Owen suggested that there should be one name from the Liberals—say, David—and one name from the SDP—say, Owen.

New politics—a coalition, and an opportunity to achieve through Parliament changes to the constitution which could be for the benefit of the whole country. There is a huge opportunity offered by this new politics, one which is in the process of being horribly lost. At the heart of the constitutional proposals are attempts to reduce the ability of Parliament to stand up to and restrain the Executive; proposals to prevent the Commons from forcing an election; proposals to make this House a creature of the Executive—something that it has not been since the late 1950s, when this House did not even bother to have votes, because a Tory Government down the road and all the Tories here did not think it worth while.

I think that a fixed-term Parliament is a good idea; it is a good idea to take away from the Prime Minister of the day the power to determine the date of the election. But depriving him of that power has to be consistent with the basic principle of our constitution—that the Government are selected by the House of Commons and survive only as long as they enjoy a majority in the House of Commons. For well over 110 years, whenever a vote of confidence has been lost in the House of Commons, the Government then go straight to the country. Why is that? It should not be us or them down there who choose who should be the next Government; it should be the public who choose.

Mr David Heath, the deputy leader of the House of Commons, suggested that there was an exception to that, when Mr Stanley Baldwin was defeated at the end of 1923 and Mr Ramsay MacDonald formed the first Labour Government. What happened in 1923 was that Mr Stanley Baldwin was defeated on the King’s Speech. The position should clearly be that if the Government fail to get the confidence of the House of Commons after an election, the right thing is not to ask the public to think again in a new election, but then and only then to choose a new Government in the Commons.

The twin aims of depriving the Prime Minister of the right to fix the election date while preserving the bedrock principle that if the Government lose the confidence of the House they should call an election can be achieved with a Bill that says that there should be a fixed-term parliament of X years subject to the PM having an obligation to advise Her Majesty to have a general election when his Government had obtained the confidence of the House of Commons but then been defeated on an Opposition vote of confidence. That would meet every aim that the coalition has. Why on earth has it proposed this 55 per cent? As my noble friend Lord Hunt said, a whole variety of different reasons have been suggested. But think what the consequences of that 55 per cent are. First, it means that this Government are not affected by the fixed-term Act because they have more than 55 per cent of the MPs. Secondly, well over half the years since 1945 have involved Governments with more than 55 per cent of the MPs, so it is likely that in years to come this provision will not apply to most Governments. Thirdly, what would happen if the coalition splits up? Fifty-three per cent is the number of non-Tory MPs in the Commons. If there was a vote of confidence—