Parliamentary Voting System and Constituencies Bill

Lord Marks of Henley-on-Thames 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.

[Lord Campbell of Alloway]

My Lords, could the noble Lord explain what on earth a public inquiry subject to judicial review means in practice in the courts?

[Lord Marks of Henley-on-Thames]

My Lords, what it means is that there is a difficult and delaying process at that stage because there is the interposition of the public inquiry; that is, with a public hearing as proposed by the Government, there is a hearing which is essentially, as the noble and learned Lord, Lord Woolf, explained, an evidence- and argument-gathering procedure, orally in public, prior to a decision-making process by the Boundary Commission which, as I say, we should trust.

The government amendments quite properly exclude this unhappy intermediate stage in the decision-making process. Furthermore, the cost of the public inquiry proposed by the noble and learned Lord, Lord Falconer of Thoroton, is considerable. It cuts out a substantial and essential element of transparency from the system proposed by the government amendments. The opposition amendments would remove the requirement to publish the records of public hearings to enable informed public comment.

In terms of timing, the proposals of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Bach, would total 26 weeks in cases where there were proposals to revise recommendations—six for written submissions, 16 or 17 for public inquiries and then four for further inquiries. The proposals of the government amendments are much shorter overall—12 weeks for written submissions and public hearings, four for a period of secondary consultation and eight if revisions are proposed: so, 16 weeks rising to a maximum of 24 weeks. However, the amendments of the noble and learned Lord, Lord Falconer, keep his timetable down to 26 or 27 weeks only by cutting from 12 weeks to six the period for public written submissions; by cutting entirely the four-week secondary consultation period proposed by the Government and by allowing only four weeks instead of eight for the public to make written representations on any revised proposals.

At the heart of our position on these amendments is the notion that members of the public are more likely to make written representations than they are to attend long public inquiries, which would largely be the forum of the political parties. The amendments proposed by the Opposition favour a return to a long, cumbersome, legalistic and expensive decision-making process of public inquiries going before the Boundary Commission’s recommendation, a process whose status is entirely uncertain because its effect on the final decision is not clear.

Finally, an entirely lawyerly point, Amendment 27GH of the noble and learned Lord, Lord Falconer, inserts a reference to subsection (4)(b) of government Amendment 27G which, by Amendment 27GD, they have entirely deleted. That is a small point by comparison with the central point. The public hearings proposed by the Government amendments are essentially creatures of the public with longer timescales for written representations and a shorter, simpler arrangement for public hearings with all the evidence and all the argument then considered by the Boundary Commission, which we ought to trust. I urge the House to accept the government amendments and reject those proposed by the noble and learned Lord, Lord Falconer.

[Lord Lloyd of Berwick]

Experience shows that where two or three lawyers are gathered together one is sure to disagree. I entirely agree with every word that has fallen from the noble Lord, Lord Marks, which I am afraid inevitably means that, with great respect, I venture to disagree with the noble and learned Lord, Lord Woolf. He suggested that the advantage of his proposals was flexibility. I suggest that the disadvantage is an absence of simplicity. I can see no possible advantage in having a double decision process in a matter such as this. On the face of it, one would think it must increase the likelihood of an application for judicial review. In any event, the question should not be decided simply by that—it was a strong argument at one stage. But now we have before us not the original amendment proposed by the Convenor, the noble Baroness, Lady D’Souza, which in its way was a very good amendment, but an amendment from the Government containing everything that was in that amendment, which, to my mind, is essential. A public inquiry as such is not essential. A public hearing is, and that is what is promised.