Parliamentary Voting System and Constituencies Bill

Lord Howarth of Newport Excerpts

Monday 31st January 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, I respect the noble and learned Lord’s refusal to contemplate laying down the law to the Boundary Commissions on exactly how they should conduct their publicity and consultation. However, it might be helpful to them—it would certainly be helpful to the House—if the noble and learned Lord could be prevailed upon, either now or on Report, to think out aloud, to an extent, on this and to indicate in general terms his expectations as to what would constitute satisfactory publicity and consultation.

We live in an age in which there is greatly increased scope for publicity and consultation through new technologies. For example, the use of social networking would be available to the Boundary Commissions if they were intent on communicating with the generality of electors. I hope that they would be. This would be consistent with the principle upon which the Government have agreed that, after all, it would be proper to allow public inquiries to be held. The key principle is that the constitution belongs to the people—not to the Government and certainly not to the boundary commissioners—and we are all the servants of the people. However, it is through the drawing of boundaries and the subsequent election of Members to the House of Commons that the people of this country give their democratic authorisation to the political class, to Members of Parliament, to form a Government and to take decisions on their behalf; and it is through the drawing of constituency boundaries and the holding of further elections that Governments are called to account.

This is such a fundamental feature of our constitution that we have taken the view as a House—and the Government have agreed—that the public should have their say not only through written representations but in oral submissions, either uttered by themselves or their representatives, at public inquiries. However, if that process is fully to engage the citizens of this country and be fruitful, it follows that there has to be effective communication between the boundary commissioners and the people.

We cannot overemphasise the importance of the spirit in which this is done. I hope that the noble and learned Lord will be able to say that he expects the publicity and consultation to be much more than perfunctory; that he expects it to be full-hearted and thorough. There might be a temptation for the Boundary Commissions to make the process relatively abbreviated—not least because they are being asked to proceed on a more rapid timetable than in the past. It will be a genuine challenge for them to transact all the processes involved in redrawing the boundaries in the timescale that the Government have permitted. It should be possible, but it would more difficult to do it to the timescale set by the Government in the Bill if they are to be as thorough and as generous in their publicity and consultation as we hope they will be. It is important that the Government state that they expect a thorough and genuine consultation.

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[Lord Wallace of Tankerness]

My Lords, perhaps I may first respond to the noble Lord, Lord Howarth of Newport. I hope he would not expect the Government to give directions to the Boundary Commissions, and I indicate that the Bill provides that the Boundary Commissions,

“shall take such steps as they see fit to inform people in the constituency—

(a) of the effect of the proposed recommendations and”—

to ensure that—

“a copy of the recommendations is open to inspection at a specified place within the constituency”—

that is unless, of course, no change is recommended for the constituency—

“(b) that representations with respect to the proposed recommendations may be made to the Commission during a specified period of 12 weeks”.

The provisions of this Bill are a bit different from those of the past. The 1986 legislation made a stipulation with regard to newspaper advertisements, and that is not in this Bill. We are leaving that to the discretion of the Boundary Commission. When I was replying to an amendment moved on Wednesday by the noble Lord, Lord Kennedy of Southwark, who was talking about online advertising, I indicated that again it was a matter for the Boundary Commissions. However, as there had been use of online advertising for the purposes of the Boundary Commissions’ work during the last general review, I have every confidence that it will be done again. I am sure there is no way in which the Boundary Commission is going to have a perfunctory regard in ensuring that the proposals are widely publicised. All parts of the House—it should be a matter not just for Government but for Parliament—should be confident that the commissions will continue to adhere to the highest standards that they have shown in the past, irrespective of seeking representations that will strengthen their recommendations. There is a high level of expectation there, and I do not think there has ever been any suggestion that the Boundary Commissions have not lived up to that.

With regard to the noble Lord, Lord Foulkes—

[Lord Howarth of Newport]

There will be a difference in the way that the Boundary Commission operates in future, because it is going to have to reduce the number of constituencies from 650 to 600, if that provision stays in the Bill, and it is also going to have to make the quota of 76,000 a paramount consideration. Those two factors are going to constrain it in new ways. I am sure, as the noble and learned Lord suggests, it will wish to be thorough in its consultation, but the question of what it may see fit by way of publicity and consultation, given the pressures it is going to be under, and the pressures of time as well, will depend to an extent on the standard and expectation that the Government express. That is why I hope we shall hear from the noble and learned Lord a sentiment very vigorously expressed, that he would expect no less of the Boundary Commission than the utmost thoroughness of engagement to ensure that every one of our citizens is aware of the proposals that would affect their constituencies and genuinely have the opportunity to make their representation should they wish to make them.

[Lord Wallace of Tankerness]

It is not just a matter of Ministers expecting it because Parliament would expect a degree of engagement. I am in little doubt that good publicity will be given to the issue, because I the political parties have a role to play, as we have acknowledged. As I indicated to the noble Lord, Lord Kennedy, when he proposed that representations should be published online within 24 hours, we would want carefully to consider that before Report. I raised a number of practical issues, but acknowledged that we are living in an age when online communication is probably the norm rather than the exception.

[Lord Howarth of Newport]

The noble and learned Lord says he is going to frame an amendment—effectively, to produce a new clause to replace Clause 12. Will he consider including wording that really indicates unambiguously the demanding expectation that the Government and Parliament will have for the Boundary Commissioners in this regard?

[Lord Wallace of Tankerness]

I am not sure that legislation is the proper place to express exhortation, but I have no doubt that the four Boundary Commissions will be looking at the debates in your Lordships’ House, as indeed in the other place. They will have heard the reasonable expectations with regard to publicity of their recommendations.

I will say to the noble Lord, Lord Foulkes, that perhaps it was a matter of controversy in some of our earlier debates, but one of the reasons why, for example, the British Academy report welcomed some of the features of the Bill with regard to the rules was the clear hierarchy we have laid down and which has not previously been the case. Therefore, I hope that the concern expressed by the former Secretary of State, Bruce Millan, will not arise in this particular case.

For completeness, I say to the noble and learned Lord, Lord Falconer, that, as I indicated earlier, it is the case, as stated in new subsection (3) proposed in Clause 12 (1):

“Where a Boundary Commission revise any proposed recommendations after publicising them”,

subsection (1), which contains the publicity part, would apply to the revised proposals, but it does not apply to any proposals that are revised for a second time. I give this for completeness.

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[Lord Tyler]

While it is one thing is to express an opinion in the House, does the noble and learned Lord agree that having exhortation in the Bill implies that it is somehow necessary to encourage the Boundary Commissions to operate in a particular way? That implies a degree of a lack of trust in the work that they do. I wonder whether he would take this opportunity to reject the suggestion from his noble friend Lord Howarth that to express that sort of exhortation in the actual Bill is not helpful in this case. I accept what the noble Lord says about expressions of support and encouragement for a due process in the discussion that is taking place in the Committee, but to put it into the Bill itself seems to me to be a retrograde step.

[Lord Howarth of Newport]

Before my noble and learned friend answers the noble Lord, Lord Tyler, perhaps I could clarify that while I have asked the Minister to express on behalf of the Government their expectation of a high standard of publicity and consultation, it would certainly not be my view that we should resort to exhortation in the language of the Bill but rather that we should state a requirement in the language of the Bill.

[Lord Tyler]

The noble Lord actually said, and I listened with great care, that it should be in the new clause that my noble and learned friend should bring forward—that is, in the Bill.

[Lord Howarth of Newport]

It was a word used by the Minister, I think the noble Lord will find.

[Lord Falconer of Thoroton]

If I might interrupt this momentary and rather fascinating debate about statutory drafting, my experience of Bills passed before 1997, and post-1997, is that legislators sometimes resorted to exhortatory language in Bills when they thought it was appropriate. I do not feel able to give the noble Lord, Lord Tyler, the comfort that he seeks because, for reasons that I cannot adequately explain to the Committee, that was often the way that deals were done on legislation, so one cannot be quite categoric about that.

My point, if I might revert to it, was: without in any way interfering with the discretion of the Boundary Commissions, if we were able to get some indication about how it would be done that would be helpful to show that it can be done and, just as importantly, it would help the other groups—in particular, the political parties—to prepare their resources for what everybody agrees to be a quite testing process. Secondly and separately, resources provided by the state for this are important to get the requisite high standards and to ensure that consultation will be proper. When we return to this on Report, it would also be of value if there were some indication of how the resources have been worked out and how we are to be satisfied that those resources are adequate. However, I will not stand in the way of Clause 12 standing part at this stage.

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[Lord Lipsey]

My Lords, first, I apologise for the fact that I arrived back in the Chamber seconds too late to move Amendment 99ZA. I do not think that anything catastrophic has been lost thereby, because Amendments 99ZA and 99A were in effect accepted by the Minister. We will see the drafting on Report. If I might be permitted to say it, Amendments 99B and 99C are purely technical and if the Minister or his officials would correspond with me about their substance, we might avoid having to return to the subject on Report.

Amendment 100, however, has fine breeding because it is another from the stable of the British Academy, whose thoroughbreds have been praised throughout these debates. It relates to the discussion that we have just had because it is perfectly clear that the commissions have a big task on their hands to complete the work before them by 2013. In particular, the English commission faces a tough task. It would be very regrettable if there was any slippage in the timetable, because it leaves only 18 months for parties to choose their candidates and for those candidates to bed themselves in. That is even without the possibility, which must still exist even under the Government’s fixed-term Parliament legislation, of an earlier general election. It really is crucial that the Boundary Commissions do not get behind with the task.

The Government have been comforting throughout on the question of the resources that will be made available to the Boundary Commissions. That is important, but the British Academy study argues that an additional weapon in the commissions’ armoury would be the appointment of assistant commissioners. This amendment, as I understand it, in effect repeats the provision of the 1986 Act in that regard by providing for the appointment of assistant commissioners. That may, it occurs to me, also have a part to play when the Government bring forward their detailed proposals for implementing the spirit of the amendment spoken to earlier today by the noble Baroness, Lady D’Souza, in providing for oral hearings in some form or another. I hope that this modest, technical proposal—it is of course not saying that the commissions have to appoint assistant commissioners—sourced as it is from the true experts of the British Academy study, will find favour with the Minister. I beg to move.

[Lord Howarth of Newport]

In light of the Government’s agreement that provision shall after all be made for public inquiries with oral hearings, would my noble friend wish to modify the terms of his amendment when we return on Report?

[Lord Lipsey]

I am so sorry if I was unclear. I explained that I thought that that new provision might increase the necessity for assistant commissioners and therefore be incorporated into the Government’s proposals.

[Lord Wills]

My Lords, I want to make a couple of brief points in support of this proposed new clause. I think there is general agreement in the Committee that the engagement of the public in this process is desirable. There has been a great deal of discussion about what format that could take, but that principle is generally accepted by everybody and this proposed new clause goes to the heart of that agreement.

When the previous Government looked at a whole range of methods of engaging the public in policy formation—of which this would be a part—we came to the very clear view that fundamental to all forms of consultation was the need for the public to know what had happened to their contributions to the debate. That was crucial for the credibility of the process and it avoided cynicism creeping in about what had happened. I think that this new clause is entirely consistent with that principle. I understand that it might be thought unnecessary to put such a provision into the Bill, but it might also be thought to be a sound principle that could be relied upon and about which the Boundary Commission could be relied upon to make a judgment. Putting it into the Bill in the way that my noble friend proposes with this new clause would signify the importance of such feedback, and I very much hope that the Minister will look favourably on it. I do not think that it fundamentally compromises the Government’s objectives in the Bill and it could play an important part in building public support for the process.

Finally, I notice that my noble friend has used the generic term “published”. I do not think that any amendment to the clause is needed but, if the Minister is prepared to look at the proposal favourably, as I hope he will, I should be grateful if he could make it clear that all forms of publication should be used. Obviously, the web should be deployed but we should also bear it in mind that, even today and despite the best efforts of the previous Government, large sections of the population are excluded from the web. Therefore, I should be grateful if the Minister could make it clear that he would expect the Boundary Commission to use all forms of publication.

[Lord Howarth of Newport]

It seems to me that what is proposed in this amendment is the more important if one takes the view, as I do—but contrary, I think, to the view of the noble Lord, Lord Baker—that there will be extensive public interest in, at any rate, certain proposals for boundary changes. In recent days and weeks, the people of Cornwall and the Isle of Wight have given us to understand in no uncertain terms that they have very strong views about how constituencies should be drawn in their parts of the world. Given the radical and wholesale changes that the provisions of the legislation will entail, I think that we should be prepared for considerable strength of feeling and for vigorously expressed representations not just on the part of the political parties but, certainly in controversial cases, on the part of many members of the public. It is, as my noble friend Lord Wills suggested, important that people have feedback and that they should know that their representations have been listened to, gathered up and presented for careful consideration by the boundary commissioners through the activity of assistant commissioners, as my noble friend Lord Lipsey has proposed.

[Lord Falconer of Thoroton]

My Lords, this is quite an important amendment because it relates to what happened earlier this afternoon. My noble friend Lord Lipsey is proposing that an assistant commissioner should look at all the written representations relating to a particular provisional recommendation and publish the effect of those written representations. That is important because it means that the representations are being considered and the public as a whole can see them all in context. It also seems to be of relevance in determining whether a public inquiry is appropriate. If a proper analysis is carried out, which is what an assistant commissioner will do if the proposal of my noble friend Lord Lipsey is adopted, it will be easier to see whether a public inquiry is appropriate or helpful. The effect of the amendment in the names of the noble Baroness, Lady D’Souza, the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, is that, even if the technical requirements are satisfied, there will be a public inquiry only where it is helpful—that is, the Boundary Commission will have the discretion to say no if a public inquiry will not help in any way.

Therefore, I respectfully suggest that the proposal of my noble friend Lord Lipsey will be of value, first, in ensuring that written representations are properly considered and that that is apparent; secondly, in properly analysing what issues there may be in relation to a particular provisional recommendation; and, thirdly, in deciding whether, in exercising its discretion to have a public inquiry, there are sufficient issues for the Boundary Commission to bite on to be sure that such an inquiry will be useful. I respectfully suggest that the noble and learned Lord considers this amendment in the context of the public inquiry amendment and comes back on Report to tell us what conclusions he has reached.

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[Lord Bach]

My noble and learned friend Lord Falconer of Thoroton and my noble friends Lady McDonagh and Lord Kennedy of Southwark and I have given notice of our intention to oppose the Question that Clause 13 stand part of the Bill. We have done so not because we oppose Clause 13 standing part but just in order that we might hear the Minister respond to some questions.

Last week we heard from noble Lords concerning Cornwall and the Isle of Wight, as my noble friend Lord Howarth of Newport reminded us. However, we also had a long and interesting—and, I think, worthwhile—debate on Wales, to which Clause 13 relates. The clause amends Section 2 of the Government of Wales Act 2006 so that the Assembly constituencies are those specified in the Parliamentary Constituencies and Assembly Electoral Regions (Wales) Order 2006, as amended. The effect of this change is that any future alterations to parliamentary constituencies made under the new rules introduced by the Bill will not affect Assembly constituencies.

We appreciate that without the first part of Clause 13 the reduction in the number of Westminster seats in Wales made necessary by Clause 11 of this Bill would see a comparative reduction in the number of Welsh Assembly seats. It is not this part of Clause 13 that we object to; we do not wish to see the representation provided for the people of Wales by its devolved institutions affected by legislation which will cut that representation at Westminster. However, the remaining parts of Clause 13 are included to deal with interim reviews of constituencies in Wales which might happen to be undertaken under the terms of the Government of Wales Act 2006 which are ongoing or have not been implemented when Part 2 of the Bill comes into force.

We want to raise again the particular impact that the Bill’s proposals will have on Wales. We wish to ask the Minister whether there might be a phased reduction in the number of Westminster constituencies due to be lost in Wales under the terms of the Bill. If there is not to be a phased reduction, perhaps there is a case to be made that the amount of the reduction be delayed until after the result of the March referendum on powers to the Welsh Assembly and any attendant transfer of power.

The Minister will recall—he is, after all, an expert on this point—that last week he made the comparison with the cut in Scottish Westminster representation following devolution. We would argue that that cut in seats happened only after law-making powers had been transferred to Holyrood. In holding a referendum to extend primary law-making powers in the light of the Government of Wales Act 2006 and the Calman Commission, Wales will, in a way, be catching up with Scotland in this respect. Perhaps it is appropriate that, once this has happened, its Westminster representation be reduced and a better judgment can be made as to how much it should be reduced by. I look forward to hearing the noble and learned Lord’s response in due course.

[Lord Howarth of Newport]

My Lords, if the number of parliamentary constituencies in Wales is to be reduced, it must inevitably follow that the boundaries of constituencies for the Welsh Assembly and the boundaries of constituencies in Wales for this Parliament will no longer be aligned. I do not think that it would be right for us to seek to reduce the number of constituencies that return Members to the Welsh Assembly, but I think we should appreciate that, if we are going to legislate to cause these boundaries to cease to be coterminous and to diverge, problems will arise and damage will be done politically.

My noble friend reminded us that last week we considered two amendments on this issue. One proposed a phased reduction in the number of parliamentary constituencies in Wales and the other proposed that the reduction should be delayed until such time as the people of Wales had voted to have primary law-making powers transferred to the Welsh Assembly. Both would be helpful mitigating amendments, but let us recall, in the mean time, that the Welsh Assembly, unlike the Scottish Parliament, does not have primary law-making powers and that policy for Wales is made, on a very large scale, in the Westminster Parliament. There is a block grant which transfers resources from London to Cardiff. Home affairs, criminal justice, social security, pensions and, of course, defence, foreign policy and very major areas of policy are determined still for Wales by the Parliament of the United Kingdom.

It follows from that that it is a responsibility of Members of Parliament representing Welsh constituencies at Westminster to work in close relationship with their colleagues who are Assembly Members in Cardiff. They need to be able to talk to each other about the interests of the constituents that they jointly serve. The needs of Wales need to be represented by Welsh Members of Parliament at Westminster and as things are, they are well represented by Members of Parliament of all parties at Westminster. It is easier for them to do that job because the constituencies of Welsh MPs are the same as the constituencies of Welsh Assembly Members. When that ceases to be the case, it will be far more difficult for Welsh MPs and Welsh Assembly Members to work closely and effectively together in the interests of their shared constituents. There will overlapping of boundaries. There will be cases in which Welsh Members of Parliament will have to try to represent, at one and the same time, the interests of two Welsh Assembly constituencies which may not be in agreement about what it is that they would like their champion in the House of Commons to be arguing for. There will be a muddying and a blurring of responsibility. It will be more difficult for people to do their job.

Of course, the noble and learned Lord, like others in the Chamber, is very well aware of the experience in Scotland. I see that my noble friend Lord Foulkes is not here, but my noble friends Lord McAvoy and Lady Liddell are well able to testify that, whatever the merits may have been of the redrawing of constituency boundaries in Scotland, it cannot have been made easier for an appropriate collaboration to take place between Members of the Scottish Parliament and Members of the Westminster Parliament. This is one reason—there are other powerful reasons—why I believe that it is undesirable to reduce the number of constituencies in Wales, or, if the number of constituencies in Wales is to be reduced, we should do it at a gradual pace. The service that their elected representatives are able to give to their constituents will be impaired if we lose the existing alignment of boundaries.

[Lord Wallace of Tankerness]

My Lords, as has been indicated by the noble Lord, Lord Bach, one of the purposes of this clause is to ensure that the number of seats in the Welsh Assembly is not reduced as a result of the proposed reduction in the number of United Kingdom Parliamentary seats at Westminster. Indeed, a similar end was procured in relation to Scotland through primary legislation in 2004. I am not sure whether it was when the noble Baroness, Lady Liddell, was Secretary of State, but if it was not, she probably instigated it, and it was to secure the size of the Scottish Parliament, notwithstanding the significant reduction in the number of Scottish seats at Westminster. I am pleased to have heard the noble Lord confirm that he has no objection to that part of this clause.

The noble Lord did inquire, however, about the transitional provisions and took the opportunity to raise again the issues which were pretty thoroughly debated one day last week—I cannot remember which day it was; possibly Wednesday night. We had a thorough debate and I do not propose to go into all the arguments again. Suffice to say that it is the case that, even now, the Welsh Assembly has powers given to it under framework powers in primary legislation, or under legislative competence orders, to promote measures in the Welsh Assembly. As I indicated on that occasion, the underlying principle of the Bill is to ensure equality of constituencies throughout the United Kingdom and I have still not been given any answer as to why a seat in Cardiff should be smaller than a seat in Belfast, Edinburgh or Birmingham. I do not think that we can pursue that matter much further this evening.

The transitional provisions are intended to deal with interim boundary reviews which have already been begun by the Boundary Commission for Wales and have not been completed or have not yet been implemented at the time when Part 2 of the Bill comes into force. The commission will be able to decide whether to continue with any reviews which it has in hand but the consequence of continuing with any reviews would be that, in practice, they would apply only to the boundaries of Assembly constituencies.

The transitional provisions also provide that, where the commission has already delivered a report recommending alterations to constituencies before Part 2 of the Bill comes into force, but there has not yet been any order giving effect to the recommendations, an order must be laid in Parliament in accordance with the previous requirements. Such an order would therefore affect the Assembly constituencies and, where appropriate, Assembly electoral regions, but would not have any effect on parliamentary constituencies, which, of course, would be the subject of the boundary review, which is the substance of Part 2 of the Bill. I hope that that explanation will satisfy the noble Lord. I beg to move that Clause 13 stand part of the Bill.

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[Lord Falconer of Thoroton]

The noble Lords are not moving their amendments, so I will not comment on them.

My noble friend Lord Lipsey’s amendments give the House the opportunity to think again. They give Parliament an additional check on the changes that the Minister can bring forward by order. In the context of the lack of pre-legislative scrutiny and consultation that the Bill received, such checks are unarguably a good thing.

There is an issue of whether recourse to the super-affirmative procedure might be appropriate in all cases of orders being moved under the terms of the Bill. This affirmative procedure has significance in the context of a later amendment, Amendment 102AB, in the name of the noble Lord, Lord Williamson. That amendment says that Clauses 10(2) and 11, which are in effect the operative clauses for changing the rules and for changing the number of Members of Parliament from 650 to 600,

“shall come into force on a date to be appointed under subsection (1B) following reports from the Boundary Commissions, made as if section 11 of this Act were in force, being laid before Parliament by the Secretary of State”.

As I understand the noble Lord’s amendment, the Boundary Commissions would do their work, Clause 11 would not formally be in force and it would then be for Parliament—that is, both Houses—to vote on whether Parliament wanted to bring Clause 11 into force. Parliament would then be deciding before implementation whether it was the appropriate thing to do.

If Parliament were taking such an important decision, then, in my respectful submission, that decision should be taken in accordance with the super-affirmative procedure proposed by my noble friend Lord Lipsey. There is real merit, although we will debate this more fully later, in what the noble Lord, Lord Williamson, is saying, because it would give the House the opportunity to consider not only the effect of what is being done but what an independent body—for example, a commission set up to look at the size of the House of Commons—had said about whether it was appropriate to reduce the size of the House from 650 to 600 and, if that was not appropriate, what the appropriate figure, if any, was to reduce the House to.

Those of us who have been enjoying the provisions of Committee have come to know well the views expressed by the cross-party committees in both Houses on the lack of proper constitutional process on the Bill. I know that noble Lords enjoy hearing me repeat old favourites, so I say again that the Political and Constitutional Reform Committee in the House of Commons and our Constitution Committee have said that there should have been a public consultative process before the Bill came to the House and pre-legislative scrutiny to enable it to be properly considered. Those points are added to by the fact that it has been very difficult for the Government to justify precisely how they get to the figure of 600. The Leader of the House saying that it is a nice round figure perhaps lacks the intellectual and constitutional justification that one looks for in this significant change in the House of Commons. The lack of intellectual justification and of proper process goes to an important constitutional point. The House genuinely feels uneasy about a majority in the House of Commons and a political majority in the House of Lords—that is, a political majority of the Liberal Democrats and the Tories over the other parties in the House—being able to push through a change in the size of the House of Commons, which reputable independent experts think has been chosen as a means of favouring the governing party.

It is worth quoting a statement that Mr Mark Field, the Conservative MP for Cities of London and Westminster, endorsed on Second Reading in the other place. Mr Straw quoted from the statement put on the Conservative website by Mr Field. Referring to Mr Field, Mr Straw said:

“He says that ‘the current proposals for AV and the reduction in number of parliamentary constituencies are being promoted by Party managers as an expedient way to prevent our principal political opponents from recapturing office’”.—[Official Report, Commons, 6/9/10; col. 47.]

Therefore, there is a legitimate argument that this is being done for party-political advantage. The importance, therefore, of my noble friend proposing the super-affirmative procedure is that if, as I hope, we adopt the amendment of the noble Lord, Lord Williamson, a process will be in place that will ensure that the Government can undertake proper arrangements to look at whether the figure is right, and that when we pass that amendment—I hope that we do so—and debate whether we bring Clause 11 into force, we will be informed by a report of a body that is beyond reproach. I hope that the noble and learned Lord will consider my noble friend’s amendment in that context.

[Lord Howarth of Newport]

My Lords, the amendment of my noble friend Lord Lipsey is self-evidently proper. The legislation provides for seismic constitutional and political change but has been all too little considered hitherto. There was not only the lack of public consultation and pre-legislative scrutiny to which my noble and learned friend Lord Falconer has referred but the reality of the way in which the Bill was transacted in the House of Commons is that the Committee stage was entirely perfunctory.

At Second Reading in another place some Members of the other place expressed considerable anxiety about the way in which things were being done. For example, Mr Simon Hart, a Conservative Member of Parliament, said:

“I wish to address the issue of honesty. Let us not try to fool people about this Bill. Let us not pretend that it is a response to some kind of great public desire or thirst”.

He did not necessarily want the Bill to fail because he accepts the foundations on which it was constructed, but he continued:

“It is the process, not the principle to which I object”.

He went on to say that,

“there is a fine line between political reform and political vandalism”.—[Official Report, Commons, 6/9/10; col. 120.]

If the House of Commons passed this legislation in the pretty shallow and perfunctory way in which it did—with a very brief Committee stage and very important sections of the Bill, including Clause 11, not being thoroughly examined in Committee—it follows that the other place must have the opportunity in due course to consider again whether it has done the right thing. If the orders made under the Bill were in effect to go through simply on the nod under the negative resolution procedure, that would not be good enough and the House of Commons would not be performing its proper constitutional role. Therefore, the simple affirmative procedure is probably the right procedure to be adopted for decisions on orders made under this legislation.

I have some reservations that the super-affirmative procedure would create too much scope for obstruction and too much scope for the intervention of party- political interest in the eventual decision-making.

However, it is imperative that, when the other place comes to make decisions on orders under the Bill, it should do so consciously and deliberately, which the affirmative resolution procedure would enable it to do. In that way, the other place might slightly make up for the pretty neglectful and haphazard way in which it considered the primary legislation.

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[Lord Newton of Braintree]

My Lords, perhaps I may briefly intervene. I am too often tempted in these debates, but this will, on the McNally score, put him 4-2 ahead of me.

The noble Lord's speech was very interesting. In effect, he distinguished between whether efforts should be made to improve the registration system and the way in which that might be tied to a particular part of the Bill. That is exactly my position. I have no problem with trying to improve the registration system. However, there could be big questions of cost, not least arising from any prosecutions that may take place, for example of large numbers of 16 to 18 year-olds. That prospect appeared to lurk in what the noble Lord, Lord Bach, said. Those issues can be considered on their own merits. What would not be sensible—this is where, for once, I am on the side of my Front Bench—would be to tie those to a provision of a particular Bill as a condition before something comes into effect.

[Lord Howarth of Newport]

My Lords, we all accept that it is desirable in any case to improve electoral registration, but I take issue with the noble Lord, Lord Newton, in what he said in relation to the Bill. Happily and conveniently, the Committee accepted the amendment in the name of my noble friend Lord Rooker, and there is therefore flexibility on the date of the referendum on electoral change, and there is no technical problem standing in the way of acceptance of the amendment of my noble friend.

Whatever view we take about the desirability of the forthcoming referendum—I favour a referendum on the question of electoral change—or whatever view we take on whether or not it is desirable to switch from first past the post to the alternative vote, although I prefer to keep first past the post, we can all agree that we want full participation by the people of this country in the referendum. We want its result not only to be legally binding but to have moral force. It will not have moral force if it is mired by a low turnout among those who are already registered. It will have less moral force if, unfortunately, it is conducted on a register which is demonstrably incomplete and inaccurate.

If there is to be an important moment in the national life in consideration of a major constitutional change, we should expect the Electoral Commission to take every reasonable step to ensure that there is a high level of registration. It is then for the campaigning groups to do all they can to ensure that there is a high turnout. This can be done and it should be done. The decision taken by the people at the referendum will have a greater validity. It will be more convincing if it takes place on the basis of fuller registration.

It is timely to have a drive for improved registration because we know that local authorities will have fewer resources in years to come, and that in the next few months they will perhaps still have the resources to mount the drive to improve electoral registration. We also know that given the housing benefit changes that are due to come in, more people may be obliged to move home. We will see more people coming off existing electoral registers and perhaps not getting on to new electoral registers. Before we see the full unfortunate consequences of those benefit changes, we should have a drive to improve electoral registration. It would be particularly timely and appropriate for that to take place in the next few months, certainly to ensure that we have the most complete and accurate electoral register possible when the referendum takes place, and as an investment in the electoral register for future elections.

For all those reasons, I support the amendment of my noble friend Lord Bach.

[Lord Wallace of Tankerness]

My Lords, this amendment, as has been made clear, concerns the commencement of the provisions relating to the referendum in the Bill. Part 1 provides among other things for the referendum on the alternative vote, for the entitlement to vote in the referendum and for conduct of the referendum. The proposal in the amendment is that the provisions should,

“not come into force until the Electoral Commission has certified that every local authority has taken all reasonable steps to ensure that the electoral register is as complete and accurate as possible”.

It will come as no surprise that the Government wish to resist the amendment. To be fair, it is a variation on a number of the amendments debated earlier in Committee, when debating Part 2, on whether the Boundary Commission’s review should commence until the Electoral Commission had certified that every local authority had taken all reasonable steps. We believe that the amendment would cause a serious risk of delaying the referendum.

Reference has been made to the successful amendment in the name of the noble Lord, Lord Rooker. Before that debate, I was detained by severe weather and was unable to get to the House, but I have noted what was said and I heard the noble Lord, Lord Rooker, say on other occasions that his intention was not to rule out 5 May, but to provide a lifeboat, whereas this amendment would, to all intents and purposes, rule out 5 May. In fact, the delay could be so substantial, perhaps even indefinite, if the relevant certification could not be provided, that the lifeboat might even be sunk before it was launched. I cannot understand why we should put ourselves in a position whereby perhaps one local authority electoral registration officer was somehow holding back and the Electoral Commission could not provide the required certification.

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[Lord Newton of Braintree]

It is clear that a significant effort is being made, and I would like to pay my own tribute to the leading figures on the Cross Benches, to resolve the impasse or to bring us back from the precipice, to use the phrase that was used by the noble and learned Lord, Lord Falconer. I share the hope that there will be a positive and constructive response to this.

The noble and learned Lord indicated that he recognised this was not necessarily perfect and that there was some more thought to be given to the issues, which I thought was a very helpful way for him to have put his remarks. So I say to my noble friend, who I suspect is in a constructive frame of mind—I share the hope that he is—that there is at least one person behind him who would strongly support such a constructive approach.

[Lord Howarth of Newport]

Those words spoken by the noble Lord, Lord Newton, himself a former Leader of the House of Commons, who always sought to calm troubled waters in that capacity and did so very successfully, should certainly be heeded. I add my appreciation for the noble Lord, Lord Williamson of Horton, and the Cross Benchers who, in tabling this amendment, as the noble Baroness, Lady D’Souza, did earlier in the day, have sought to steer our proceedings into calmer waters, recognising that in Part 2 there are some intensely controversial and very major constitutional issues that are not best resolved in a spirit of hot and angry political contest.

In any case, even if the mood of the Committee had been as placid and as genial in the previous 14 days as it has been today, it would still have taken time to consider properly and for us to be able to reach agreed conclusions that are in the interests of all our people and in the interest of sensible, constructive reform of the constitution, not animated by party political considerations but by real concern to reform and advance the constitution so that it better serves our people.

I very much welcome, therefore, what the noble Lord, Lord Williamson, has suggested. He offers a way in which we can resolve some of these very difficult and important issues in a calmer fashion and on a sensible timescale. I hope that the noble Lord the Leader of the House will respond in a similar spirit.

[Lord Lipsey]

My Lords, just to make the bait on the hook of the noble Lord, Lord Williamson, even more appetising, there is a point to be made. Earlier on the point was made that the problem with the reduction to 600 is that it increases the size of the Executive relative to the Back Bench. That point was taken on board by the noble and learned Lord, Lord Wallace. He said he did not think the legislation should be altered but he wanted to think about it. The amendment of the noble Lord, Lord Williamson, provides an excellent opportunity for a structured way in which we could look at that very important question and come up with a solution without amending the Bill. That should also commend it to the Government who have already endorsed the point that lies behind it.

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[Lord Low of Dalston]

My Lords, I have been preparing for this moment since well before Christmas and I thought it would never come but my hour has come and I shall also speak to other amendments in the group. They may seem a bit of a comedown from the heady constitutional stuff we have been discussing—I was going to say for the last six weeks but the noble Lord, Lord Bach, referring to 30 November in the last debate suggests to me that it must have been at least eight weeks. In any case, I hope your Lordships would agree that the amendments are of considerable importance none the less and I would hope less apt to be contentious in your Lordships’ House.

The purpose of these amendments is to disability-proof this legislation and to ensure that the referendum it establishes is fully inclusive and accessible to disabled people. Noble Lords will remember how the last general election was marred by scenes of voters queuing for hours, a shortage of ballot papers and the electorate being denied access to polling stations. Sadly, this is routinely the experience of millions of disabled voters at every election for every tier of government. There is also a worrying lack of accountability as there is currently no way for people to appeal when they are wrongly denied their right to vote, other than by mounting an expensive, onerous and bureaucratic legal challenge.

Following the report in 1999 of the Disability Rights Task Force—which the last Labour Government set up at the beginning of their administration and on which I had the honour to serve—some attempt has been made to give higher priority to the accessibility of elections for disabled people. Some provision has been made in the Representation of the People Act and the Electoral Commission has produced some helpful guidance. However, local authorities do not always implement it and more still needs to be done at local level to ensure that elections are fully inclusive.

Over the past decade and more the Polls Apart coalition of charities, led by Scope, has produced evidence of the continuing inaccessibility of polling stations and has been working to raise awareness of the need to make elections more accessible. The 2010 Polls Apart survey revealed that in the 2010 general election, 67 per cent of polling stations had poor access for people with mobility difficulties; 47 per cent of postal voters had problems with the accessibility of the ballot papers and nearly half of all polling stations failed to display a large-print ballot paper—31 per cent worse than in the 2005 survey. Local authorities knew that 14 per cent of the polling stations they intended to use would not be accessible to disabled voters, but very few authorities outside Northern Ireland made any effort to tell voters about the accessibility of their polling stations or to offer an alternative option to them.

The right to vote is laid down in statute, the European Convention on Human Rights, and, most recently, in Article 29 of the UN Convention on the Rights of Persons with Disabilities, but, in practice, voting is still a right denied to many disabled people. We need to bolster the legislation to guarantee that right. Of course, the Bill can do that only for the referendum, but I would hope that if we can get it right on this occasion, that could set the standard for all future elections.

Amendment 103 would give the chief counting officer a duty, rather than a power, to give regional counting officers and counting officers directions requiring them to take specified steps in preparation for the referendum. Amendment 104 would require that such steps should include ensuring that adequate provision is made for disabled voters. Amendments 105 and 106 lay an analogous duty on regional counting officers, for a region; and on counting officers, for voting areas within that region. Amendment 107 further adds to the matters on which regional counting officers should give direction to counting officers,

“directions about the discharge of their functions in relation to voters with disabilities”,

and,

“directions requiring them to address any complaints from voters arising from the administration of the referendum”.

Amendment 110 creates a robust duty for the Electoral Commission to ensure that voters are able to access information about the referendum, and strengthens its general duty to give specific guidance on achieving equality of access to the voting process. Amendment 114 and Amendments 116 to 119 would require counting officers to ensure that the polling places used for the referendum were accessible to disabled voters, to notify voters of any polling stations that may not be accessible, and to provide details of alternative voting options.

The Electoral Commission has stated—and I fear that the Government may say—that it does not believe that the amendments are necessary, given the duties and responsibilities already laid on counting officers and the Electoral Commission by existing legislation. Existing legislation is not working, as the Polls Apart surveys have demonstrated, so we clearly need something more.

I have brought forward a reasonable set of amendments designed to address the situation. If they can do it in Northern Ireland, they can do it in the rest of the United Kingdom. I very much hope that the Government will see their way to accepting the amendments, thus helping to expedite the passage of the Bill through your Lordships' House. I beg to move.

[Lord Howarth of Newport]

I pay tribute to the part played by the noble Lord, Lord Low of Dalston, on the Disability Rights Task Force and to his resourceful, imaginative and courageous campaigning in the interests of disabled people over a great many years. We are proud to have him as a Member of this House and greatly welcome his contribution not only to debates on the status and position of disabled people in our society but much more widely.

The situation that the noble Lord has described to us is a disgrace. It may be that, as the Electoral Commission has suggested, legislation is more or less sufficient, or ought to be, to ensure that the proper requirements of disabled people within our electoral system are accommodated, but evidently it is not working in practice. Whether that is a matter of lack of financial resources or, more likely, that it is a matter of attitudes and culture I do not know. But in all events, we need to take energetic and determined steps to greatly improve the state of affairs to which the noble Lord has alerted us.

It may be that the amendments he has proposed are the kind of practical amendments needed to rectify some of the deficiencies in existing legislation and regulations. Again, I do not know for sure, but it seems to me that the measures that the noble Lord has proposed are modest, practical and reasonable, and it is hard to imagine what objection could be made to them. But whether or not legislative change is the key to improving the state of affairs that he has described, ensuring that disabled people are included as they should be within our electoral and broader political systems, it is evident that there needs to be leadership and drive to ensure that the attitudes and the performance of professional staff in this field, and I daresay also of the political parties, are greatly improved.

I therefore look forward to the response from the Minister. We should all be grateful to the noble Lord, Lord Low of Dalston, for calling our attention to a matter of serious concern and on a purely bipartisan basis. There is no party politics in this. I am sure it is universally agreed around the House that the arrangements that govern elections and certainly the holding of this particular referendum will in practice ensure that disabled people are in no way inhibited or debarred from participating.

[Lord Bach]

My Lords, the Committee should be grateful to the noble Lord, Lord Low of Dalston, for moving his amendment and speaking to the other amendments in this group, and for informing the House about the results of the Polls Apart survey. The noble Lord said that this was a reasonable set of amendments and we on the opposition Front Bench agree. We think they are all sensible as well as reasonable and that they should be supported around the House in due course.

Our advice to the Government is that they should go away with these amendments and think very carefully indeed about how they can implement them. If they do not, I suspect the noble Lord will come back on Report and will have very wide support around the House from all sides so that these practical suggestions can be put into effect. As I say, the opposition Front Bench support these amendments.