Parliamentary Voting System and Constituencies Bill

Lord Lloyd of Berwick Excerpts

Wednesday 16th February 2011 Lords Chamber

[Lord Rooker]

One can look at Hansard—the estimated time is about 14 minutes of debate. That was the first time the Commons have debated this issue. This is not the issue that they debated last November, of a “killer, fatal threshold”, although those are words I would refrain from using as that is not what it is.

The Minister’s comments about the electoral register, notwithstanding the debates that we have had, show that we are in a complete and utter mess as a democratic country if we cannot say that we have a national register that measures the electorate for a particular ballot. That is one criticism of my amendment to the Bill, because we do not know what the electorate is. The electoral register includes foreigners, who may vote in some elections but not others, the dead and those who have moved home or who own a second home. The fact that we have no national electoral register prevents any serious discussion about the mechanism of our democracy. That has been thrown into a starker light than it ever was before. However, I do not want to go down that road, as I want to be quite brief.

I submit that the issue of substance lies not in the figure of 40 per cent—that could have been any other figure that was thought to be reasonable, whatever people might have said—but in whether the referendum should be binding, without any constraint whatever. We have never done this before in this country, and a precedent is being set. That is the point that I am seeking to make with my amendment to the Bill—not to argue against the result of the AV referendum one way or the other. The serious problem is that we are creating a major precedent in our constitutional arrangements, which the other place has not addressed. That is why I ask, even at this late stage, for the Bill to be sent back so that the other place can address this issue to the degree that it should.

I am not against reform of our constitutional arrangements, but such reform is likely to be sustainable if there is a degree of consensus. With proper debate—White Papers, Green Papers, Joint Committees—we get a consensus about these things and we test the ideas. That has not been done in the case of the proposed binding referendum, the legislation for which would be in place to be activated, whatever the result and whatever the turnout. However, that consensus has not been achieved, although I know there has been cross-party voting, including last night—the Minister declined to mention that several Tory MPs voted for my amendment to the Bill, but I will not make a major point about that.

My point is that, as I face the Chamber, the two oldest political parties in the country are joining together to rewrite our constitution on a daily, as-you-go-by basis. In other words, we do not know what is happening next. This cannot be the right way to operate; it cannot be the right way in which to bring in a major constitutional change of the first ever binding referendum in the UK. There is no big picture by which we may judge this part of the constitutional changes—we know that there are others on the conveyor belt—and that is a major difficulty.

My amendments to the Bill were made in the spirit of compromise. Frankly, they say that the referendum shall be binding if more than 40 per cent turn up, and that is a compromise on my part. I do not think that a binding referendum ought to operate in a parliamentary democracy. The Minister said yesterday, in the context of the Isle of Wight issue, that it is not the opinion of this House that counts, but the strength of the opinion of this House that counts. I accept that, on the Minister’s test, the majority of one may be a bit shaky, but I have to say that that was on a 40 per cent-plus turnout of this House. While the level of the majority may not meet the Minister’s test, it certainly meets the test that we are actually voting for. I seek to move to strengthen the opinion of this House so that that can be taken on board.

There is plenty of time, but I know that a lot of time will not be spent on it. When history comes to be written and when this issue operates out there among the public, the question may be asked, subject to the result, “What on earth was Parliament doing?”. I want to be able to say that we used all the time available to test this issue to get them to think again. Today is an opportunity to do that. I beg to move.

[Lord Lloyd of Berwick]

My Lords, listening to the noble Lord, Lord Rooker, I am reminded irresistibly of the last occasion when we had before us a major constitutional Bill. I refer, of course, to the stages leading up to the passage of the Constitutional Reform Act 2005. There were then two main issues on ping-pong, just as—leaving aside the Isle of Wight issue—there are two main issues today. The first of the two main issues in 2005 was whether the Lord Chancellor should continue to be a Member of this House; the second was whether the Lord Chancellor should be required to be a lawyer. It was a Lords Bill, which of course this Bill is not. The first time round, the Government lost on those two issues by a substantial margin. The majority against the Government was 215 to 199. When the Bill came back from the Commons, the Lord Chancellor speaking on behalf of the Government said:

“Of course our power is to make the other place think again. They have thought again… Our job is to make the other place think again. Once we are satisfied that they have done so, then we should pay proper regard to their views”.—[Official Report, 21/3/05; col. 38.]

The question that I ask the noble and learned Lord, Lord Falconer, is whether he still abides by the principle that he stated so clearly on that occasion. They were the very last words that he uttered after a very long, drawn-out affair, which he will remember as well as I do, but they were the words that carried the day on that occasion. The Government won by 203 votes to 191.

The question I then ask is whether that principle should not be applied today. It seems to me that the case for applying that principle today is far stronger than it was when the noble and learned Lord, Lord Falconer, stated it, for on that occasion the Bill affected this House. It affected it because it would have abolished the office of Lord Chancellor—had that proved to be possible, which it did not—and ejected from this House the Law Lords, where they had been for 150 years or more. Nevertheless, on that occasion this House yielded to the other place. On this occasion, by contrast, the Bill seems to relate almost exclusively to the other place, not to us. Surely, if ever there was a Bill on which we ought to yield to the elected House, seeing as it relates to election to that House, it is this one. When the time comes, I shall therefore vote with the Government.

--- Later in debate ---

[Lord King of Bridgwater]

He did not go that far, but there was an implication of it in what he said. I listened from elsewhere, with the advantage of television, to the speech on the previous amendment of the noble and learned Lord, Lord Lloyd, who said that it was right that this House should ask the other place to think again. The noble Baroness, Lady O’Neill, made the same point. However, on whether votes should have an equal value as far as possible in each constituency and on ensuring that the next election takes place on fairer boundaries, this House has already asked the other place to think again. The other place has replied that it does not wish us to insist on our amendment. Our ability to challenge the other House is a very important power; it has to be used responsibly; it has to be used with great care. I respectfully suggest to the House that this amendment, very ingeniously and properly moved by the noble Lord, Lord Pannick, is not the sort of issue on which we ought now to challenge the other place for a second time.

[Lord Lloyd of Berwick]

My Lords, I voted against the amendment of the noble Lord, Lord Pannick, on Report. It seemed to me then, and it does so now, that a Bill which aims at equality as its underlying principle but which allows a margin of 5 per cent either way is both clear and logical. To allow a further margin of 2.5 per cent in very exceptional circumstances is neither clear nor logical nor, I suspect, necessary for the purpose of creating viable or workable constitutions. The noble Lord may have in mind specific instances of where it would make all the difference, but if there are such specific instances, they should have been dealt with as such in the Bill, as have been the Isle of Wight and Orkney and Shetland.

I asked myself throughout the original speech of the noble Lord, Lord Pannick, and what he has said today, the following question. Let us suppose that the Bill had originally allowed a 7.5 per cent margin either way of equality. Would the noble Lord then have tabled an amendment saying, “Oh, no, we had better allow an extra 2.5 per cent just in case”.? I do not believe that he would have argued that and, if that is the case, I cannot see how he is entitled to make the point that he makes in relation to 5 per cent.

I do not propose to pursue that argument—I may do so later with my learned friend and I have no doubt that he would beat me to it—because there is the more important question here, which I tried to develop during debate on the previous amendment. The noble Lord, Lord Pannick, has been severe in his criticism of the Government’s conduct throughout the passage of the Bill, and in many respects he may be right. However, to use those immortal words, we are now where we are, and I am unable to see how the noble Lord’s amendment, even if it were ultimately accepted by us, will cure the criticisms which he has made of the Government.

Of course it was our duty to examine the Bill with great care, all the more so as it is a constitutional Bill. The noble Lord, Lord Lawson, referred to this House in the previous debate as the protector of the constitution. That may be so, but we are not the sole protectors of the constitution; so is the House of Commons. The constitutional point raised by this amendment seems, as the noble Lord said, not to be of very great importance, although it is obviously of some importance. We have given the other House the chance to reconsider this point; it has done so; it has decided against the amendment of the noble Lord, Lord Pannick; and we should now accept its view.

[Baroness Finlay of Llandaff]

My Lords, before coming to the House today—and I hesitated before intending to speak—I felt that I should go back and look at the figures for the electorate of the whole of the UK and try to do some modelling on the sums. My conclusions have been based on fairly simple maths. It may be that we are where we are, but it is clear that we have lost 25 per cent of MPs from Wales and that Wales, Scotland, Northern Ireland and England will have their own areas. There have been arguments about Cornwall and rural constituencies in particular. I wanted to look at whether there might be unintended consequences of the legislation. In other words, are we really legislating for what we want to do, or do we run a risk of an unintended consequence? My noble friend Lady O’Neill put it succinctly. The point of the amendment is to allow a margin, in exceptional circumstances, so that the Boundary Commission is not locked into a difficult situation by the legislation if it comes across circumstances where the population has moved or the size of the electorate has changed and where it is suddenly faced with a constituency which does not fit within the relatively narrowly margin of 5 per cent. The principle of equality was in some ways abandoned over the Isle of Wight. That was a decision of both Houses. It was agreed that exceptional circumstances applied there. This amendment is about exceptionality. It would put a safety margin in the Bill. It would not undermine the Bill’s overall principles of a more equal distribution of votes and a reduction in the other House’s size.

It was the relative brevity of the debate in the other place that prompted me to pull out and go through the figures last night and early this morning. I have come to the conclusion that we should supply the Boundary Commission with a safety margin for it to provide workable constituencies so that the people of this country are well represented in the other place. Therefore, I support the amendment.