Parliamentary Voting System and Constituencies Bill

Lord Foulkes of Cumnock Excerpts

Tuesday 8th February 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, the government amendments give expression to a widespread feeling in the House, which I share, that there should be some oral procedure in the Boundary Commission’s decision-making process. The amendments give the political parties and members of the public the opportunity to give evidence, to make representations orally and in public, to develop written submissions that have already been submitted and to put forward arguments orally.

The system proposed by the government amendments achieves that in a way that is proportionate, reasonably economical and reasonably expeditious. It avoids effectively dividing the decision-making process between the recommendation of the chair of a public inquiry and the final recommendation of the Boundary Commission itself. The amendments allow for two-day hearings across the whole country, which the Boundary Commission must take into account. They have at their heart a trust in the Boundary Commission and its decision-making ability that is, in our submission, in no way misplaced.

The proposals offer a transparent system with the public having a genuine and adequate chance to participate at every stage, whereas the amendments put forward by the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Bach, would, I suggest, revert to a cumbersome system of public inquiries that has often led to the whole system becoming bogged down. Those inquiries may be as long as four months. That is not expeditious.

Further, in answer to the point made by the noble and learned Lord, Lord Lloyd of Berwick—one which, with the greatest of respect, the noble and learned Lord, Lord Woolf, did not adequately deal with in his speech—they open up a dual decision-making process with different and distinct decision-making stages. I give way to the noble Lord.

[Lord Foulkes of Cumnock]

My Lords, I am sorry to interrupt but I have taken part in a number of hearings in Ayrshire. In one case, the assistant commissioner recommended something which was accepted by the Boundary Commission; and in another a different commissioner recommended something that was not accepted by it. The decision of the Boundary Commission is always final.

[Lord Marks of Henley-on-Thames]

My Lords, that is precisely the point. The intervention of the noble Lord illustrates that the Boundary Commission makes decisions, taking into account recommendations of the commissioners that may be inconsistent, which negates the importance or effect of the public inquiries. Amendment 43 empowers the assistant commissioner to,

“adjudicate between the arguments and to make a final recommendation on proposed boundary changes”.

As the noble Lord, Lord Foulkes, explains, there is no explanation anywhere of how that would work or what the precise status or effect of the recommendation would be. Presumably, as he says, the Boundary Commission would have to take that into account but that would—again with respect to the noble and learned Lord, Lord Woolf—open up the public hearings or inquiries to judicial review, possibly not as to the content of the recommendation but as to the procedure adopted before the public inquiry.

Then there would be the difficulty that any departure by the Boundary Commission from the recommendation from a public inquiry would be challengeable as irrational. That itself would be fruitful grounds for judicial review hearings. The amendment does not state how these problems would be dealt with. I give way.

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[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords and noble and learned Lords who have participated in this important debate. It has been a good and helpful debate, with views forcefully expressed but set out in a measured way. There is some agreement that we want to find the best way to achieve effective consultation on Boundary Commission proposals. However, it has also become clear—I made this point when I opened the debate and it was reflected on by my noble friend Lord Faulks—that the issue very much represents a choice of culture. Will we have what is essentially the old system of the local public inquiry—albeit with some timetable improvements; and I acknowledge the efforts made there—or a change of culture towards the public hearings proposed in the Government’s amendment? My noble friend Lord Faulks indicated that our proposal goes with the grain of making arrangements for similar matters to be dealt with.

The process we have set out combines written representations with a new public hearing stage aimed at providing for real public engagement, and involves a counter-representation stage to allow for scrutiny. We believe that that adds up to a comprehensive and rigorous process which learns the lessons of previous reviews and allows us to achieve the key principles of the Bill, whereby constituencies will become more equal and fair and their representation in the other place will be reflected by the time of the 2015 election.

It was suggested by the noble and learned Lords, Lord Falconer of Thoroton and Lord Woolf, that the representations made at an oral hearing would disappear into the ether. However, it is it is important to recall that not only after the end of the period will there still be an opportunity for follow-up representations, but, in response to amendments in Committee from the noble Lord, Lord Lipsey, there will be an opportunity for counter-representations to be made. It is a requirement set out in the amendment that the Boundary Commission shall give consideration not only to the written representations and counter-representations, but to the record of those who engage in the oral hearings.

The process that we propose is a considerable departure from the original proposals in the Bill. That was acknowledged by the noble and learned Lord, Lord Woolf. The Government have listened to the reasonable concerns on the importance of public engagement, not least at the first review under the new rules. We have listened to the argument that our process could be strengthened if there was an opportunity for the scrutiny of arguments put forward by others. We have shown that we are willing to move in the interests of a better outcome, but not at the cost of the key principles of the Bill. That cost would include delays that could undermine those principles.

The opposition proposals—whether those of the noble and learned Lord, Lord Falconer of Thoroton, or the suggested changes to the Government’s amendments—would, in effect, restore the existing inquiry process. They require a legally qualified chair and a report back to the commissions by the legally qualified person—we have had exchanges on whether there are to be two decisions or two determinations. The opposition proposals would remove the time limit on the number of days an inquiry will last. Those old-style inquiries would take place after the submission of written evidence, as they do now—albeit for a slightly longer period—in order that the parties can send their lawyers and that their legally qualified person in the chair can cross-examine them.

Even the noble and learned Lords among us can imagine that that process is unlikely to engage the general public at large. The work of academics who have researched these issues in depth means that we do not have to imagine what that would mean, because the evidence is in their reports. An in-depth study by Ron Johnston, David Rossiter and Charles Pattie in 2008 stated:

“It would be a major error to assume that the consultation process largely involves the general public having its say on the recommendations. The entire procedure is dominated—in influence and outcome if not in terms of the numbers of representations and petitions (many stimulated by the main actors)—by the political parties”.

There has been a flavour of the political parties’ heavy engagement.

It has also been said that somehow or other the public inquiry system assuages pent-up local demand. Before I came to the Chamber this afternoon, I looked at the last Boundary Commission review of the constituencies for the Scottish Parliament. In the case of East Lothian, Midlothian and the Scottish Borders, the inquiry process, which led to a recommendation from the reporter, who I think was Sheriff Edward Bowen QC, was completely and utterly dismissed by the Boundary Commission. I am not sure what that would do to promote public confidence in the system proposed by the Opposition.

[Lord Foulkes of Cumnock]

Will the Minister confirm that there was no application for a judicial hearing in relation to that? Everyone accepted it.

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[Lord Foulkes of Cumnock]

My Lords, I was swithering about whether to speak to Amendment 25A in my name and Amendment 26 in my name and that of my noble friend Lord Campbell-Savours. I got to my feet only because of the demands of the noble Lords, Lord Rennard and Lord Tyler, who said that they missed my contributions to this debate. I am very pleased to do this request number, as it were.

However, it is very important, as my noble and learned friend, Lord Falconer of Thoroton, said, to get as accurate a register as possible on which to carry out the revision of the boundaries. I am sure the Liberal Democrats would agree with that. They might not agree with our solutions and prescription, but I am sure they would agree with the thesis that it is important to get it as accurate as possible. My noble and learned friend Lord Falconer has suggested one option. These two amendments suggest two more. Amendment 25A suggests using the census, which fortuitously will come in 2011 and will give us a figure for those who are eligible to vote, together with updates that are available. My noble friend Lord Maxton commented in Committee on how the register could be updated.

Amendment 26 is even simpler. It would use those who are eligible to vote, not necessarily all those on the register. In Committee it was suggested that there might be some problems about identifying the numbers. With respect, I do not see how there can be when the Government cite the percentage of those in an age group who are registered. If they are able to give a percentage that is registered in each group in each constituency, they must know the number who are eligible. It would be far fairer to use figures that are more accurate and up to date, as my noble friend Lord Campbell-Savours said. I hope the Minister will respond to those two points.

[Lord Howarth of Newport]

My Lords, we all endorse the ambition to achieve equality between constituencies, although on this side of the House we consider that there are other factors that have been too much discounted by the Government in their proposals. However, there is the very serious question of whether the flawed data that the electoral registers provide undermine this project of seeking equalisation between constituencies. Research by Dr Roger Mortimore, investigating the 2009 electoral registers across eight study areas, found variations in the completeness of the electoral register in a range of 73 per cent to 94 cent. In some constituencies the register was thought to be that incomplete; only 73 per cent of those who should have been on the register were. His study of the accuracy of the register in those same areas found a variation of between 77 per cent and 91 per cent. In the worst instances, which could be some 50 to 100 constituencies in which the condition of the electoral register is seriously inadequate, it must cast doubt on whether the Government are realistic in seeking to achieve equality.

While we would in no way wish to discourage them from seeking to achieve equality between constituencies, we very much hope that they will conduct an energetic drive throughout the country to ensure that electoral registers are both complete and accurate. They can do this outside the terms of the legislation, so even if they do not accept these amendments they will still be free to do this if they wish. It will not be enough if they respond by saying that moving to individual registration should make a substantial contribution to solving the problem, because individual registration will improve accuracy but will certainly not improve completeness. A substantial problem will remain.

I certainly think, as we suggested in Committee, that a serious effort should be made to absorb the findings of the census, which is to be carried out next month. It would be possible for those concerned with drawing up electoral registers to begin to take account of interim findings from the census, and they should do that, just as the Government intend to use other databases to help to improve the completeness and accuracy of the register.

As it is, we are conducting this immense and controversial process of redrawing constituency boundaries on a principle that cannot in practice be carried through, given the serious inadequacy of registration. I hope we will hear from the noble Lord, Lord Strathclyde, that the Government have practical proposals as to how they will improve the condition of the registers to fulfil the objectives that we share on all sides of the House.

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[Lord Howarth of Newport]

I am hugely relieved as a result of my noble and learned friend’s intervention. However, I do not think that we should lean particularly on the Boundary Commission; it is not for Governments or politicians to suggest a desirable norm for the precise number of constituencies. Just as we would deplore the regimes of other countries whose practices we considered to be seriously illiberal determining the number of constituencies, so we should not do so here. I acquit my noble and learned friend of any such exact intention, but it is important that no one should suffer from the same misapprehension of his purposes as I did.

[Lord Foulkes of Cumnock]

My Lords, I want to say a few words in support of Amendment 18H. I am sure that the Minister will say that it is defective in some way. If it is, I must apologise, but it had to be written rather quickly because of this very short period between Committee and Report, which has created tremendous problems.

Understandably, the noble Lord, Lord Strathclyde, and I have affection for nice round figures. I can quite understand why he is attracted to 600. However, he has never produced a logical argument for that figure. It was alighted on; it was plucked out of the air. This amendment, which is in my name and that of my noble friend Lord McAvoy, suggests that the figure should be between 600 and 650. The exact figure should be recommended by the Boundary Commission following consultation with all interested parties and then approved by Order in Council, or by Parliament by some method, in time for the general election in 2015. I am not suggesting anything that would hold up this review, which should be completed in time for the general election. The Boundary Commission—I should say the Boundary Commissions, to allow for Scotland, Wales and Northern Ireland as well—should consult and come up with a figure that they consider more appropriate, taking account of all factors. I considered whether the Electoral Commission should be the body to deal with this, which may be something for discussion.

As was said in Committee, it is unique, unparalleled and regrettable when a Government decide the number of those elected to the main Chamber of Parliament. It is quite outrageous for this to be suggested. My amendment would take it out of the hands of the Government and put it in the hands of a body with some degree of impartiality and respect that can take account of the wider view. The decision will still come back to Parliament and will be agreed in time for the election in 2015.

I also thought that this might be attractive to the Liberal Democrats. On the one hand, you have 650 as an option, while someone else might suggest 600; usually the Liberal Democrats like somewhere in between and this allows for that. However, the Liberal Democrats do not seem the same as they were in the old days, when, as I remember well, they used to like these kinds of compromises and halfway houses where human rights were so important and democracy was considered to be an important element. These days, we see them trooping through in astonishingly rigid and disciplined fashion. The Liberal Democrat Whips must be by far the most successful and powerful Whips anywhere in this Parliament. They march their Members through with astonishing ruthlessness, following this great mantra set down by Mr Nicholas Clegg, who has returned from his expedition in Europe and encourages us to follow some of its patterns of activity.

I am straying. If there was a Speaker with powers—as there ought to be, by the way—he or she, more likely she, would tell me that I was entirely out of order, as indeed I am, so I had better stop.