Parliamentary Voting System and Constituencies Bill Debate
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Lord McNally
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Parliamentary Voting System and Constituencies Bill
Lord McNally Excerpts(13 years, 4 months ago)
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Lord Grocott
The two amendments relate to an extremely important part of this Bill. The Government were obviously quite right to have a clause in the Bill that, as far as broadcasting is concerned, deals with fairness in a referendum. However, I am glad that we do not have a written constitution. I would be very concerned if someone tried to hand over the way in which we run our country from a constitutional point of view to the lawyers.
I can see that the issue of referendums and how we conduct them is important. I will certainly not go down memory lane, apart from remembering the debates about setting up the first referendum, on the Common Market, in 1975. There were long debates in Parliament about lots of these kinds of issues—about how to make sure that it was fair. I am absolutely certain that we did not get it right on that occasion; we certainly did not get it right from my point of view because I voted no. There is no doubt that each time these things are discussed, we refine and improve the rules relating to referendums.
I do not know what speaking notes the noble Lord, Lord McNally, has, but I hope that he recognises the significance of this, not least—and perhaps in particular—because, if there is any logic whatsoever in the constitutional changes that are proposed by this Government and if there is a referendum on the voting system in the House of Commons, there must surely be a referendum on any proposal to scrap the House of Lords, whichever way one considers the arguments, although the Committee will be relieved to know that I do not have the slightest intention of going into those arguments now. Presumably, if we get this clause right, when another Bill comes down the track that provides for a referendum on an even bigger part of our constitution, we will have rules about fairness that all of us can agree to. We are heading in a direction, whether we like it or not, where constitutional changes will be referred to referendums. I hope that the Government will look at these amendments sympathetically.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for bringing forward this amendment. I agree entirely with the last point that the noble Lord, Lord Grocott, made that the pattern of using referendums since the 1970s has been to learn, modify and improve. That will probably go on.
The noble Baroness, Lady Liddell, gave a very good example of an injunction being brought against an election broadcast. I am always fascinated by the difference between English and Scottish law. When I ask, “What is the difference?”, the answer that I get in the Ministry of Justice is often, “They do it much better in Scotland”. That is just a passing observation. I am disappointed that the noble Lord, Lord McAvoy, still does not trust the Liberals. I really thought that we were beginning to bond. I will have to do more work on my charm offensive.
The noble and learned Lord, Lord Falconer, was quite right: this clause was brought in as a specific amendment suggested by the Political and Constitutional Reform Committee to address the guidelines for broadcasters. There is a principle to consider. Would it be right for party election broadcasts for the local and devolved Assembly elections, which will take place on 5 May, to refer to the referendum and/or make any comment on different voting systems? There is an argument that, as a final strap line, a broadcast could say, “Use both your votes on Thursday”, or whatever. We recognise that there is an issue to be discussed. As the noble and learned Lord, Lord Falconer, said, the Electoral Commission has made some comments on this as well.
I am advised that there are defects in Amendment 39AA that would bring in ambiguity. We could perhaps test that. On the second amendment, I suggest again that the noble and learned Lord does not press it and that we have further discussions to see whether it can be improved and clarified. Before the noble Lord, Lord Campbell-Savours, breaks open the champagne, I should add that my speaking notes contain lines that I have not heard since “Beyond the Fringe”. They say: “What I am saying does not mean that I agree with his amendment, but nor should it be assumed that I disagree with the amendment”.
Lord McNally
We all know that the final line of the “Beyond the Fringe” sketch was, “But neither should this be taken as an abstention”. I suggest to the House, quite genuinely, that—as the noble Baroness, Lady Liddell, reminded us—getting this wrong could cause all kinds of trouble with the best of intentions.
Lord Foulkes of Cumnock
Could the noble Lord, Lord McNally, be doubly helpful? It occurred to me as the debate was taking place that we have not touched on the internet. That is now a far more powerful medium in elections and campaigns. I wonder whether the discussions that he is proposing could encompass the internet as well.
Lord McNally
I am sure that that intervention has been noted. Indeed, I am looking forward to an e-mail on Monday that says: “Sorry, can’t get down today. Snowed in. G Foulkes”. Perhaps I am hoping for too much. As I say, I hope that the noble and learned Lord, Lord Falconer, will take what I have said in the spirit in which it is intended. As the noble Lord, Lord Grocott, said, we refine these issues each time. The noble Baroness, Lady Liddell, rightly reminded us of how things can go badly wrong. We would like to talk further about this.
Lord Falconer of Thoroton
If the noble Lord is saying to me, “In principle I agree about the problem that you have identified, so let’s talk about how we solve it”—the problem being that no political party should be allowed to use its political broadcast to promote or demote any of the electoral systems at issue—I am more than happy to wait until Report stage. The noble Lord read out parts of his brief in a jokey manner, but that gave him complete room to say, “No, we are not going to make any changes”. Therefore, I need something a little more than what he said. I need an indication that in principle he accepts the broad problem that we have identified.
Lord McNally
I am afraid that I cannot do that. I am offering to talk very seriously about this. I say in a strictly non-jokey way that there are issues that we have to look at if we are not to fall into innocent traps, as the noble Baroness, Lady Liddell, reminded us. There would have to be discussions without preconditions on either side. If the noble and learned Lord wishes to press the amendment, I shall resist—and that would be a mistake for both of us.
Lord Mackay of Clashfern
My Lords, it is worth noting that the clause referred to by the noble and learned Lord, Lord Falconer of Thoroton, is from the general statute dealing with referendums. This is not a question for just this referendum; it may be a question of whether what has already been put into the general procedure is sufficiently accurate. I think that I am right in saying that at the moment a party-political broadcast in connection with a referendum is allowed, so long as that is not the principal or main purpose, or some such phrase, of the broadcast. It may be that what the noble and learned Lord, Lord Falconer, and others have identified is a question of whether or not that general provision is wise or whether it should be modified. The question may go somewhat further than just this referendum and that issue needs to be looked at.
Lord Davies of Coity
Perhaps I may ask a question. The Minister said that he would have to resist the amendment if it was pressed. Does he agree that that would not remove the problem and that the Government would still have to deal with it even if they won on a Division?
Lord McNally
That is quite right and we would deal with it. However, I am suggesting that we have discussions about it without preconditions. I am grateful for the intervention of my noble and learned friend. He raises another issue that we can take on board when we look at the matter. I am glad that the noble Lord, Lord Rooker, is not the only one who supplies lifeboats, although he is not here today.
Lord Wills
I am afraid that I am baffled by the Minister’s position. Perhaps that is what he intends. Will he clarify exactly why he is resisting the proposition put forward by my noble and learned friend Lord Falconer?
Lord McNally
It is because I want to be able to discuss this, look at its implications and try and get it right. I do not want to make these kinds of commitments over the Dispatch Box. After all the complaints of the Opposition on this, my good will wears thin. When a Minister makes a straightforward offer to look at a real problem and get it right, I can only say that one begins to despair—although perhaps not for a few hours yet. No, I will not really despair. The offer is there. I hope and I think that we can get this right.
Lord Swinfen
Can my noble friend confirm for me that, if this matter is decided on a Division, the noble and learned Lord, Lord Falconer of Thoroton, would be unable to bring it back at a later stage? It may help the noble and learned Lord when he is making up his mind what to do.
Lord Falconer of Thoroton
My Lords, I indicated in my remarks on the first group of amendments that I proposed to Clause 5 that the clause was introduced to deal with the problems identified by the Political and Constitutional Reform Committee in the other place. In principle, we think that it is a good thing, although other issues need to be dealt with, including the point about the internet made by the noble Lord, Lord Lamont.
I have one question for the noble Lord in relation to that. On the face of it, any expenses incurred in making a broadcast for a referendum—for example, if you got Steven Spielberg to produce it and my noble friend Lord Puttnam to direct it, or the other way round—would not count as expenses. Is that really the Government’s intention?
On a general point, can the Minister say what principles underlie Clause 5 and, in the light of those principles, what is the answer not just to the questions that I have raised but to those raised by other noble Lords?
Lord McNally
My Lords, I thank noble Lords for their questions. The principle is that the clause was inserted in response to the committee in the other place asking for clarification. We have put Clause 5 into the Bill to ensure that media outlets are not caught by spending restrictions that are in place in terms of publishing information about the referendum. The media play a vital role in building public awareness and presenting facts and opinions on the matters raised by the poll. This amendment ensures that the media's ability to carry out that role and to exercise the usual freedom of the press and broadcast media is not restricted in any way. That was our intention.
On the point that the noble and learned Lord has just raised, I will have to check again with the Electoral Commission, but I believe that if in making a referendum broadcast, one or other of the campaigns was to indulge in the kind of expenditure to which he referred, that would be counted as expenses.
Lord Howarth of Newport
Does not this whole debate point up very clearly the absurdity of holding the referendum on the same day as other elections? It will be completely impossible to police the distinction which the Government seek to make between coverage that is referendum-related and coverage that is election-related. What if a programme or an article discusses both those topics together? It cannot conceivably work. My noble friend Lord Snape reminded us of how perplexing and confusing voters found it in 1975 when they found politicians of different parties on different sides of the argument. If I remember rightly, that referendum was not held on the same day as other elections; but it still caused people to scratch their heads. It will be completely impossible to sort this out if the two processes are carried forward on the same day. Will not the Government now accept that?
Lord McNally
I do not mind the constant argument about how people are going to be confused by this, but one lesson that we have learnt since 1975 is that a referendum and elections can be held on the same day, because we have done it. There is no reason why the two cannot be run together. To be absolutely clear, the extra expenses would come under Schedule 14.
Baroness Corston
Is the Minister right to say that the 1975 referendum on what was then the Common Market was held on the same day as the local elections?
Lord McNally
I did not say that, but that gives the opportunity for another intervention.
Lord Maxton
In that case, as the noble Lord agrees that it was not the 1975 referendum, which specific referendum was it? When was it held and what election was it? It was certainly not in Scotland, where there is a very important election on 5 May next year, even if he may consider the local elections down here not to be very important.
Lord McNally
I did not say that it was in Scotland. As my noble friend just reminded me, the London elections were held on the same day as a referendum. Come on, let us carry on.
If there were advertising on the internet, that would be caught. Again, I am quite willing to look at the issue of the internet. I do not accept the intervention by my noble friend Lord Lamont. I think that the Electoral Commission has acted impeccably, and I have every confidence in it. I was one of those who supported from the very beginning the idea of experienced politicians serving on the Electoral Commission. Happily, all three major parties plus Mr Reid from the SNP now serve on the Electoral Commission, and I think that it is all the better that there are people who have had direct experience.
As I said, I do not think that there is any problem about this. As was said during debate on the amendments, we will look at the specific points raised by the noble and learned Lord, Lord Falconer, in his second amendment. What happens in the coalition is a matter for my right honourable friend the Deputy Prime Minister, who is handling this from the Cabinet Office with my honourable friend Mr Mark Harper. I will, as always, report to them on the debates in this House. We will then discuss, on a governmental basis, our response to them. It must be to the great depression of the Opposition to know that we do this in a seamless fashion which produces none of the frictions alluded to by the noble Lord, Lord Campbell-Savours.
Lord Campbell-Savours
I am not trying to delay matters; I really would like to know how this works. The noble Lord said that it is dealt with by the Deputy Prime Minister and Mr Harper, but is there consultation within the political parties about concessions that they might be considering making? This is very important. It is about political parties in many ways.
Lord McNally
I have every confidence that those in government know how to consult the political parties they come from. I see no problem here and I have certainly not encountered one. As will have been noticed throughout the debate, on my Benches my noble friends Lord Tyler and Lord Rennard are both plugged into and expert on these matters for the Liberal Democrats. The noble Lord’s concern is touching, but I can assure him that it is not a problem.
Lord Howarth of Newport
When Ministers consult with political parties about the processes that it might be appropriate to incorporate into this legislation, can the noble Lord assure us that they seek to act in a spirit of disinterestedness? After all, it would not be appropriate for the Government to stack the system so that it would benefit what the parties perceive to be their particular interests. Can he assure us that the Government’s hands are clean in this process?
Lord McNally
Absolutely clean. The problem about this, and the reason we are having such difficulty in convincing the Benches opposite, is that our whole aim is to get fair votes on the basis of fair constituencies, which obviously discomforts them.
Lord Snape
Can the Minister be more specific? He has called upon, so he says, the best brains in the Liberal Democrat Party to assist him in these matters—and I am sure that they will be joined by the best brains in the Conservative Party, the Civil Service and everyone else—but can he give an inkling as to how those best brains will be able to differentiate between the expenditure on local and regional elections and referendums? It is a simple question. Just give us a clue.
Lord McNally
I suggest that the noble Lord looks at the 2000 Act. The schedules are mostly based on existing law. Elections were conducted like this before so perhaps he should find some experts in the Labour Party to help him with his problem. I do not see the problem that he is raising—or the problem that I suspect the noble Lord, Lord Foulkes, is about to raise.
Lord Snape
Regrettably the Labour Party is not in government; he and his colleagues are. It is a simple question and it is no good referring back to the 2000 Act. As far as I am aware, elections have not been held on the same day as a referendum—ever—in the United Kingdom. The noble Lord referred to the London elections, the assembly and the mayoral elections, but this is a completely different situation, with regional and local elections and a national referendum about the voting system being held on the same day. Can he quote a precedent for this—or at least give us some idea of how the Government are going to tackle the problem of limiting expenditure in these circumstances? So far he has failed to do so.
Lord McNally
I may have failed to convince the noble Lord, but we are going to do so on the basis of existing legislation and the provisions of this Bill.
Lord Foulkes of Cumnock
I am slightly confused about the reply that the Minister gave to my noble friend Lord Campbell-Savours. Which is the lead department for this Bill? Is it his department, the MoJ, or is it the Cabinet Office?
Lord McNally
I am surprised. The Bill has been through the House of Commons and the noble Lord, Lord Foulkes, has intervened so many times. It is the Cabinet Office. I am here today in my capacity as Deputy Leader of the House of Lords, taking responsibility for Cabinet Office business.
Lord Foulkes of Cumnock
I asked the question because I knew the answer. My noble friend Lord Maxton said, “Don’t ask a question if you don’t know the answer to it”. What I am not clear about is this: whenever we raise issues, the noble Lord, Lord McNally, has to go back to the Deputy Prime Minister to get agreement. What happens if he is taken ill or is abroad at some major conference or something like that?
Lord McNally
I do not know. That would really stump us. I would probably have to go and ask the noble Lord, Lord Foulkes, what happened when he was in Government.
Lord Elystan-Morgan
I am in no way seeking to be obstructive but what is the current view of the Scottish Parliament and the Welsh Assembly on holding both elections on the same day? I am aware that certain representations were made months ago but wonder whether they still represent the views of those two bodies.
Lord McNally
This is a piece of legislation for this Parliament. We are in contact with both the Scottish Parliament and the Welsh Assembly but we are bringing this Bill before this Parliament and I suggest we get on and do that.
Baroness Liddell of Coatdyke
My Lords, I am not seeking to make this an even more protracted discussion but the intervention of the noble Lord, Lord Snape, took me on another saunter down memory lane. One of the issues that confronted the referendum in 1979 was that some non-political players became involved in it—business leaders and trade union leaders—some of whom put a considerable sum of money into their own personal campaigns, taking on media advisers, et cetera. I am going to ask a question to which I do not know the answer. How would this legislation unscramble that kind of expenditure? You may well have someone intervening in the referendum campaign and, as a side swipe, having a go at a political party that was standing in that election in Scotland. This is about the disentangling of non-political players from the referendum campaign in terms of their expenses and the impact that this might have on the outcome. Sorry, it sounds very convoluted, but I can see it being a nightmare, particularly when election agents have to submit their election expenses.
Lord McNally
The Electoral Commission has very clear rules. We have laws about electoral expenses. If there were those kinds of problems that the noble Baroness suggests, I am sure they would be challenged at the time. It might speed things up if people did not preface their interventions by assuring me that they were not trying to delay matters and just got straight into the question.
Baroness Liddell of Coatdyke
I am sorry to press the noble Lord further but I know of a scenario in 1979 where some business leaders became involved in the referendum campaign and put considerable sums of money towards it. I can see an actual situation emerging. I will not name the people here but I can think in my head who they would be and who would use it as an opportunity not to take a swipe at my party but to take a swipe at the noble Lord’s party. It is not clear in electoral law how those expenses will be allocated.
Lord McNally
I will leave it to the general public to read these debates and make their own judgment about that. Just as on the broad principle of the Bill, of fair votes in fair constituencies, we are eager and willing to take our case to the public. Let those who read Hansard be the judge.
I have explained why Clause 5 is in the Bill; I have listened to an amendment suggested by the noble and learned Lord, Lord Falconer, and, without commitments on either side, have offered to discuss it further; and I have listened to a number of other points, including the internet issue, which I think will be a subject of continuing discussion in the regulation of our parties. However, a point which has been accepted and which I made in responding the noble Baroness, Lady Liddell, and others is that we have continued since the 1970s to learn from our experiences and to refine and improve regulation. I pay tribute to the party opposite for taking, with our support, a great number of measures to implement controls on spending and regulate elections via the Electoral Commission. Many of these matters are of great interest, but I think that Clause 5 should stand part of the Bill.
Lord Lamont of Lerwick
Of course it is independent. That is how it was set up. I intervened earlier with a comment about the Electoral Commission that I was rather nervous about making, and I hesitated to make the comments directly; in some of the evidence presented to the Constitution Committee by at least one academic, the independence of the Electoral Commission on this issue of electoral reform was brought up. I am not saying I agree with that, but it was brought up—it was mentioned in a submission to the Constitution Committee by a well respected academic. When bodies exist on a permanent basis, such as the Electoral Reform Society, what constitutes routine non-campaign expenditure for them and what has to count as an item of spending in the campaign? At what point does academic and educational activity become a form of campaigning covered by the PPERA? I am afraid that these rules are full of holes and really quite impractical.
Lord McNally
My Lords, on the question of how these rules are applied, I suspect that the noble Lord, Lord Lamont, and I have a philosophical difference. As I said earlier, I supported the 2000 legislation and the setting up of the Electoral Commission. I am not in favour of the untrammelled process of elections. You need rules and checks and balances if you are going to offer a level playing field in these matters. Much of what was done during the period of the previous Government was worthy of support in making our electoral systems fairer and more transparent in funding and process. What is clear about the process is that much of what is in the Bill, although it is a fairly thick Bill to look at, and certainly what is in this clause, rests on tried legislation that is already in place.
Lord Howarth of Newport
As my noble and learned friend Lord Falconer and the noble Lord, Lord Lamont, have rather compellingly pointed out to the Committee, there are real and practical problems with the existing rules. Does the noble Lord consider it to be the responsibility of the Government to iron out these difficulties and to put into place a more satisfactory set of arrangements, or is he saying that it is for the Electoral Commission to modify the rules as it thinks best? If the latter, is he satisfied that the Electoral Commission has the freedom and scope actually to do that?
Lord McNally
The answer has to be yes, as if we did not have that confidence in the Electoral Commission we would be in a very odd place. As I said, we support the trusting of the commission, which will publish guidelines on how these rules will operate. It is for the designated organisations and the other parties campaigning to work within those rules.
Lord Howarth of Newport
No one is suggesting that the Electoral Commission is not to be trusted. The question is whether the commission has the scope under existing legislation to make the changes that may be necessary.
Lord McNally
Part of the debate is how much the changes need to be made. We believe that they do not and that the existing rules and regulations will stand. We see no reason to change the current legislation on spending limits for this referendum. Quite apart from seeing no compelling reason of principle, we should consider the practical effects. We are not far away from the start of the referendum period and changing the rules at this late stage could penalise permitted participants unfairly. In particular, we do not agree that there should be different spending regulations for this referendum compared with others, as the amendment suggests. We do not agree that there should be this distinction and we believe that the current spending regulation framework should apply to this referendum.
Lord Foulkes of Cumnock
My Lords, I had not intended to speak on this because I spoke rather a lot the other day, which resulted in the noble Lord, Lord McNally, wishing for snow in Scotland. I do not want him to create undue problems for the new Transport Minister up there but we have just heard, for the umpteenth time, that this has to be got through because if we do not pass it that will create problems for a referendum on 5 May. However, the reason that the problems are created is that the Government have decided on a timetable which is far too short so, again and again, proper scrutiny of this Bill is being denied us as it was denied the House of Commons. The Minister is now trying to deny us because an artificial date has been set for the referendum.
All sorts of anomalies can arise. We have had a number suggested—if I had had more time, I would have written down some that have come up during our past few days’ debates—and each time we raise them, there is a general frisson around the Committee that there is a problem there. Then the Minister puts his head down, reads out a brief and gets on to the next business without really considering the problem.
Perhaps I might give an example, which is not relevant to this issue but is a parallel issue that can be used. In the Scottish Parliament elections, the SNP suddenly realised that if it put itself down on the list as “Scottish National Party”, it would come low down the list. Everyone who has been involved in elections knows that if you are top of the list, you get an advantage from that; if your name is Arbuthnot, you get that built-in advantage. The SNP changed the designated name of its party to “Alex Salmond for First Minister”. It put down the name of the candidate, then “Alex Salmond for First Minister” in brackets, and that came above Labour, Liberal and Conservative. It came right at the top and it got a lot of votes as a result.
Things have been changed now, because we realised that it was a mistake. That is how these anomalies arise. That is why it is very important that this kind of legislation is scrutinised carefully by us here. I have been involved in, I think, seven municipal elections as a candidate, and seven parliamentary elections as a candidate, most of them successful, and many people here have been involved in many more; my noble friend Lady Liddell has been organising them—she has been in charge of them—and many of my noble friends have been involved in them. That is why we should be scrutinising this and thinking of the practical difficulties that arise.
The Deputy Prime Minister is determined to push this through—because of his ego, says one of my noble friends, although I would hesitate to say that kind of thing. He is anxious to get it through and we are being forced into an artificial timetable. My noble friend Lord Rooker has managed to join us now. He provided the lifeboat for the Government. At some point, I hope that the noble Lord, Lord McNally, will undertake the kind of consultation in relation to the date of the referendum as he is going to undertake in relation to the previous amendment, as requested by my noble friend Lord Campbell-Savours. If the noble Lord, Lord McNally, came to this House within a week or two and said that the Government had accepted the import of my noble friend Lord Rooker’s amendment, and that they were now going to have the referendum on, let us say, 31 October next year or whatever date, then I predict that the life of the noble Lord, Lord McNally, would be a great deal easier—and, even more important than a quiet life for him, our consideration of the detail of this Bill would be far better, and we would end up with a much better Bill at the end of it.
Lord Lipsey
My Lords, this is proving to be a most illuminating debate. When the Minister replies, can he illuminate us further? I got rather confused between two arguments that he is putting, both of which are perfectly sustainable but which are simply impossible to run together.
One argument is that there is nothing wrong with the present law; it deals with absolutely everything. I do not think that that argument stands up because it has been destroyed by the arguments of my noble and learned friend Lord Falconer and my noble friend Lord Campbell-Savours, but it is a perfectly sustainable argument by its own logic. Another argument which the Minister came to later, however, says, “Well, the law may or may not be right, but it would be totally confusing to participants if we changed it now”. That is a sustainable argument that leads to a clear conclusion: if it is going to confuse participants, we need to put the referendum date back, as my noble friend Lord Foulkes said, sort that bit of law out and then go ahead with the referendum.
The Minister can take either line as far as I am concerned, and the House will take its view on whether it supports it, but he really cannot run both lines simultaneously. I know that the late Jimmy Thomas said that if you cannot ride two horses at once you should not be in the circus, but it gets a trifle tricky if they are galloping in opposite directions.
Lord McNally
I know a little Labour Party history. It was Jimmy Maxton, not Jimmy Thomas, who said that. The noble Lord can have a large bet on that; I know that he is a betting man.
Lord McNally
However, I am not trying to ride two horses at once. We are saying that we are confident that the present regulations are robust enough for conducting this referendum. I have paid tribute before: the PPERA 2000 regulates these campaigns and parties; individuals and other organisations are controlled by that regulation. Donations above £7,500 have to be declared to the Electoral Commission and made public as another guarantee of transparency.
The Electoral Commission itself has welcomed this clause, and says that the provisions will provide transparency about the use of loans and similar arrangements on commercial or other terms to fund campaigning. Registered campaigners will be required to report certain information about such transactions in their referendum expenses return, along with the information on donations that the PPERA already requires them to report.
We have already referred, several times in this debate, to how referendums have influenced the development of law. There is no doubt that this referendum will provide an important test of the PPERA framework. The Government have said, in their response to the Lords Constitution Committee report on referendums, that we will review the effectiveness of the PPERA generally after the referendum. In addition, the Government note that the Committee on Standards in Public Life has said that it will examine whether any changes are necessary in the rules relating to the funding of referendums, as part of the wider review into party-political finance.
Basically, we are tightening up the rules on finance in Clause 6. The amendments are not necessary. The Bill contains the necessary schedules to run this referendum fairly. We have confidence in the Electoral Commission and its powers to run it fairly. We hope that the House will not—
Lord Campbell-Savours
Will the Minister reply to a specific question so that we have on the record exactly what will stop the abuse that I have referred to? It might come about that an individual with a large amount of money, surpassing any limits enshrined in legislation, wishes to influence the campaign. What is to stop an individual doing precisely that?
Lord McNally
For a start, each of those donations would have to be declared. There you have the conflict between my noble friend Lord Lamont’s philosophy and what I suspect is that of the noble Lord, Lord Campbell-Savours, and myself. I do not want to see big money distorting elections or referendums. We have a set of rules and regulations and a degree of transparency that we believe gives sufficient protection.
Lord Campbell-Savours
Transparency does not deal with the problem that I am referring to. If I can exaggerate to make my point—and I will—suppose that someone said, “I’ve got £20 million. I want to spend it on this referendum, and I’m going to slot it through, by way of various systems, into the campaign”. Transparency might well reveal that, but that does not deal with the problem. What is going to stop it?
Lord McNally
I strongly suspect at the moment—I shall come back and correct this if I am wrong—that nothing would stop it, any more than it would be stopped at a general election.
Lord Campbell-Savours
In other words, the Minister is conceding that money can influence this referendum campaign. He is saying not that it will but that it could in certain circumstances.
Lord McNally
Reductio ad absurdum, of course, wins many arguments, but many of the problems that have been raised from those Benches are not realistic. We can test the House on this. We have confidence in the rules and regulations, many of them laid down by the previous Administration. We are as interested as anyone else in ensuring that the referendum is conducted in a fair and transparent way, and we have confidence in both the legislation and the Electoral Commission.
Lord Campbell-Savours
But is it not astonishing that the Liberal Democrats are sitting in their places and not intervening? One would have thought that they had a particular interest during this campaign to ensure that big money could not influence the result in the way that I suggest? Why do they not get up and say something?
Lord McNally
All right, we can spend a lot of time on this. I am not going anywhere. If the noble Lord wants to get up again then he can, but the argument about £20 million being spent on the campaign could have been used in any election in the past 100 years. It is not going to happen in this referendum.
Lord Howarth of Newport
We are not talking about an extreme and highly unlikely possibility; we are talking about the possibility that someone with perhaps £2 million to spend could parcel it out between different beneficiaries who would all then campaign on one side of the referendum argument.
The Minister just said two things that are in conflict. He said that he had confidence in the rules and regulations as they are now but, when he was asked by my noble friend Lord Campbell-Savours what there was to stop this kind of abuse, he said that he frankly suspected that there was nothing. Those two remarks are in conflict with each other. This is a very important issue. We need to know the answer to the question, and if that answer is not satisfactory then the legislation needs to be amended to ensure that such abuse cannot take place.
Baroness Liddell of Coatdyke
Could the noble Lord address something very specific that I suspect will happen? If a wealthy person domiciled in Monaco buys up all the billboards in Scotland for example as part of his or her campaign for or against the question in the referendum, what means are there of accounting for it one way or another? Is there a transparent way that it can be accounted for as the noble Lords, Lord Howarth and Lord Campbell-Savours, have asked? It is not a mischievous question—it is an issue that could arise.
Lord McNally
Such expenditure would have to be reported to the Electoral Commission, and it would then be published. Actually, I will not bother with this advice. I have every confidence in my advisers but this would provoke another 10 interventions.
Lord Maxton
In relation to that very correct question, the Minister says that it is down to accountability and that they would have to make it public. The problem, however, is that the accountability and the public announcement come after the referendum, not before and not during. So what if the individual has spent the money? It will not matter.
Lord McNally
Those expenditures are reported on a regular basis. If there was an attempt at such an intervention, it would probably play quite a negative part.
Baroness Liddell of Coatdyke
Will the noble Lord also take into account the fact that a general election was not held on the same day?
Lord McNally
I have taken all those points in. Fortunately—and to my great pride—I do not remember some of the minutiae of the various campaigns in the same detail as my noble friend Lord Rennard. The Opposition can raise all kinds of hobgoblins and things that keep them awake at night but the truth is, as my noble friend has just reminded us, that the PPERA has worked well. The provisions in this Bill are tried and tested. I do not object to this legislation having thorough examination. As I have said, we are willing to spend as long as the Opposition want on this matter. In fact, we might have a few late nights to see if we can focus our minds on it. For the moment we are confident that we have the legislation in place. I ask the noble Lord to withdraw his amendment and for Clause 6 to stand part of the Bill.
Lord Snape
Whether the noble Lord, Lord Lamont, is tempted to do so or not, I come to the assistance of the noble Lord, Lord McNally, on this matter. All three major parties have had difficulties over the years with donations. I am not talking about the trade unions, on which there was a rather irrelevant intervention. I do not know where the noble Lord who mentioned them has been for the past 30 years. Various pieces of legislation—still in force—were passed by Conservative Governments to stop trade unions passing any money on to any political party without the permission of the party membership, which is not something that applies anywhere else.
To return to the amendment, all the parties have had these problems, including the Liberal party. After all, their biggest donor at the last election subsequently went to prison. I do not make that point in any political sense; I know the Liberal party had no idea that the donation came from someone who turned out to be fraudster. The noble and learned Lord, Lord Mackay of Clashfern, said that legislation already exists to take care of political donations and it will do so as far as the referendum is concerned. However, I have just illustrated the weakness of that legislation. The reason for legislation being toughened up over the years is that it is apparent that people evade it. If I might speak for the noble Lord, Lord Lamont, his point—and one made in interventions by my noble friends—is that the present legislation is palpably inadequate and we should all concede that. If we are to have this referendum, particularly on the same day as other elections, that legislation ought at least to be looked at. I hope that is helpful to the noble Lord, Lord McNally. I am not sure what is on that piece of paper, which he looked at carefully, other than perhaps, “Maybe we don’t agree with you either and you’re on your own”.
Lord Lamont of Lerwick
I apologise for intervening before my noble friend speaks; I do not want to encourage anything that would prolong this debate. However, he says that the laws governing referendums have worked very well and have been in existence for 10 years. Yes, they have been in existence for 10 years but, as the noble Lord, Lord Rennard, pointed out, there has been only one referendum—a very local referendum about whether there should be a north-east assembly. I do not know what the expenditure on that referendum was but I dare say that an upper cap of £5 million was not a great problem. When the Minister says that it is tried and tested, it absolutely is not. It was tried in the north-east and that is all.
There is the problem, which the noble and learned Lord, Lord Falconer, reminded me that I raised a decade ago and which I have alighted on again, of groups splitting up. How do you ensure that a so-called independent group is not related to the designated group? This is a real problem. As the Minister pointed out, my worry is not about rich people intervening. I always remember that it was the millionaire Engels who subsidised Karl Marx. I am surprised that the other side of the House is not more in favour of rich people. My fear is just that these limits will be completely meaningless because so many organisations will claim that they are independent. I do not wish to name the different organisations that favour changing the voting system but there are a lot of them.
I asked the Minister how you distinguish between the money that those organisations spend day by day now, before the campaign begins, and the money that they will spend during the campaign. What will be defined as a campaign contribution? The Minister can say that we have legislation to cover this but it has not been tried on any significant scale. If he cannot give some guidance today, perhaps he could answer these questions on another day of the Committee or at a different stage of the Bill. They are genuinely of concern, or they certainly are to me.
Lord McNally
I am sure they are of concern. How we govern referendums and finance political parties will rightly be of continuing interest to this Parliament, the political parties and the political process. We are confident that this legislation and the powers of the Electoral Commission are strong enough to ensure that this referendum is carried out fairly and transparently. Many of the concerns that have been raised will be tested. I have already said that, as with other referendums, we will learn from experience.
Lord Grocott
I am sorry, but the Minister is proposing a referendum which will change the constitution. That is what the referendum is about and, as his leader reminded us, it is the most important constitutional change since 1832. I hope that the noble Lord does not think that the questions being asked—it is the first that I have asked—are trivial or “hobgoblins”, or some other phrase. He has constantly repeated the mantra: “Fair votes in fair constituencies”. I do not like tripping down that road by using that language, but I might as well. How about ensuring that it is a fair referendum? That is what these questions are all about, and it would be simply too late to consider them “after we have changed the constitution”. That may be the result of the referendum, although I fervently hope not, and it would be too late to say, “Sorry we got the expenditure rules wrong; we will put them right next time”. If the noble Lord cannot see that the issue needs to be addressed now, before the referendum, I suspect that not just those of us on both sides who have been asking questions, but a lot of noble Lords who have not felt it necessary to contribute to this debate may feel that a straightforward answer is required.
Lord McNally
The straightforward answer is that the question will be never ending. We will always be looking at how these things are regulated. We will always be looking at whether the rules can be tightened, improved or made more transparent. The question is whether you can conduct a referendum on a fair and transparent basis under the terms of the legislation proposed in the Bill. It is the opinion of this House and it was certainly the opinion of the other place that we could do that. The questions raised on the opposite side may be reasonable, including the question on the funding of political parties, which again will be an ongoing matter. That is why the Committee on Standards in Public Life is looking at that very issue, and this party and this coalition Government will legislate on the funding of political parties.
Lord Howarth of Newport
Of course the Minister is right to say that there will be continuing debate on this range of issues. However, on the specific issue of potential abuse to which the noble Lord, Lord Lamont, alerted us, and which my noble friend Lord Campbell-Savours and others agree should be taken seriously, the Minister said just now that in his view nothing in existing legislation would safeguard against that abuse. That is very worrying, and it will not do for the noble Lord to seek blandly to assure us that the legislation is probably good enough and that we should proceed with it. The Government have had plenty of time to think about these issues. This Bill was introduced months ago, and it is the responsibility of the Government to ensure that the rules governing the conduct of referendums are sufficiently rigorous to provide against such abuse occurring.
Lord McNally
But if the Opposition, or even my noble friend, are putting forward hypothetical threats to the fair conduct of the referendum, I am not sure that any piece of legislation on God’s earth can meet every imagined threat.
Lord Howarth of Newport
Not every threat; but this is a specific abuse that was forensically identified by the noble Lord, Lord Lamont.
Lord McNally
It was not forensically identified. It was suggested that there are ill-defined millionaires wandering around with ill-defined amounts of money. We believe that this legislation is robust and transparent enough to deal with those matters. If it helps, I will at some later stage—and I have already demonstrated that I have absolute faith in my advisers—take the—
Lord Snape
Then I can only congratulate the noble Lord on the quality of his advice.
Lord McNally
And this one says, “Have a go at Rooker, while you are at it”. I will take away this issue of the roving multi-millionaire splitting up his money. If I was related to him, I would want him sectioned before he spent the family fortune. In the mean time, I again ask the noble and learned Lord to withdraw his amendment, and I ask the House to adopt Clause 6 in due course.
Lord Falconer of Thoroton
My Lords, it is important to identify what we are trying to achieve here. I think everybody in this House would agree that the right expenditure limits are those which create a level playing field. Both sides should be subject to the same limits. The difficulty about the rules that apply from PPERA is that that does not appear to be the case on the facts of this particular referendum. Perhaps I may identify two specific circumstances as to why that is. The way that PPERA deals with the limits is by setting three separate limits, which are cumulative. The first limit allows the designated lead organisation on each side—the leading campaign organisation for “yes” and the leading campaign organisation for “no”—to have a limit of £5 million. That plainly demonstrates equality there. The second limit allows each political party that got between 20 per cent and 30 per cent of the vote in the previous election to have a cumulative limit of £5 million. That is added to the £5 million for the designated lead organisation. In the current arrangements, we have two political parties that express no view on whether they support the change to AV and one political party that supports the change to AV. The effect on the facts of this case is that there is the designated lead organisation limit of £5 million, and in addition there is £5 million that the Liberal Democrats get to spend on the campaign. Therefore, there appears to be an uneven playing field right from the start.
Separately and in addition to that point is the point made by practically everybody around the Chamber that, if you are an authorised participant—either an individual or a corporation—you can donate up to £500,000. Therefore, there is very little difficulty for somebody who supports one of the campaigns—whether they are companies, individuals with families, or a group of people who have a particularly concerted view—to give, in effect, an unlimited amount of money to one or other of the campaigns.
Our proposition is that, first, you should reduce the amount of the limit for political parties, because otherwise you reach an unfair result. That is precisely the point that the noble Lord, Lord Lamont, made in 2000. It is obviously correct in relation to this because it obviously leads to a limit of £10 million for the “yes” campaign and a limit of only £5 million for the “no” campaign.
Regarding the rich individual, no answer of any sort was given by the noble Lord. I would have been prepared to accept some answer in relation to, first, the party-political point and, secondly, the point about rich individuals. However, not one answer came. The noble Lord merely said, “We are confident that the rules are okay”. This is the same Minister who, in the debate on the previous group of amendments, agreed to go away and think about changing the rules, which he said were not adequate to deal with the position. He is shaking his head. He is right: he did not agree to that but he agreed that he would discuss it, which rather implied that he accepted that there might be something wrong.
Perhaps I may quote what the Electoral Commission says about the two amendments that we are putting forward:
“These are significant changes to the provisions for spending limits at UK-wide referendums set out in the Parliamentary Parties, Elections and Referendums Act. Parliament may wish to consider whether the change might affect the ability of campaigners to put their arguments effectively to voters and the potential implications of changing one aspect of the PPERA rules on campaign spending without further consideration of the overall regulatory structure”.
Therefore, the commission is saying, “Don’t change anything because that might lead to the whole thing falling apart in some way”.
The noble Lord, Lord McNally, says, “If we have made a mistake in relation to these rules, we’ll learn from this”. I think that when we are scrutinising this Bill, our obligation as a House is to consider the merits of the changes that have been proposed. We should not treat the referendum—on a matter which Mr Nicholas Clegg has described as the most important electoral change since 1832—as an experiment but we should have the courage of our convictions and change the system if we think it is wrong. Surely the one thing that we have learnt from America is that money does buy elections, and all the rules that we introduced were intended to stop that happening. However, these rules do not contain fair limits that apply to both sides.
The noble Lord was so good on the first group of amendments and so bad on this one—in that he gave absolutely no explanation and did not really deal at all with the arguments—that I have no option but to test the opinion of the Committee.
Lord McNally
“( ) Schedule 19C to the 2000 Act (civil sanctions), and any order under Part 5 of that Schedule, have effect as if offences under paragraph 8(1) to (12) of the Schedule set out in Schedule 9 to this Act were offences prescribed in an order under that Part.”
Lord McNally
My Lords, it is reassuring that the power of argument and eloquence still triumphs in this House.
Clause 6 and Schedule 9 to the Bill ensure that all permitted participants in the referendum that are not political parties are covered by the same regulations regarding loans as already apply to political parties that campaign in the referendum. The Bill does this by creating a new regime for the regulation of loans to permitted participants which closely reflects the rules that already govern loans made to political parties in Part 4A of the Political Parties, Elections and Referendums Act 2000. Part of this regime is the creation of 13 new offences applicable to those permitted participants in the referendum. Again, these offences replicate the offences that already apply to major political parties through Part 4A of the 2000 Act.
This amendment seeks to apply the Electoral Commission’s new civil sanctions powers—they came into force by order on 1 December—so that they are available in relation to 12 of the 13 new offences created by the Bill. The civil sanctions regime was inserted into PPERA 2000 by the Political Parties and Elections Act 2009. It is intended to allow the Electoral Commission to apply sanctions that are appropriate to the nature of each contravention and to use new approaches to secure compliance with the law where appropriate rather than referring a case for criminal investigation. The civil sanctions include fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings.
It was not possible to prescribe the new loans offences that the Bill creates in the order so as to apply the civil sanctions regime to them on 1 December. That is because the new loans offences have not yet been approved by Parliament and will not be approved until this Bill obtains Royal Assent. However, the order that came into force on 1 December prescribes the existing offences regarding loans to political parties. This means that there would be a disparity between how political parties and other permitted participants who receive loans to fund their referendum campaigns could be sanctioned if we were not to apply the civil sanctions provisions to the new offences by making this amendment. Our amendment will ensure that civil sanctions powers are also available for the new loans offences and will close off this disparity. The result is that any permitted participant who commits a loans offence after Royal Assent could be subject to civil sanctions imposed by the Electoral Commission. I beg to move.
Lord Howarth of Newport
My Lords, I detect some inconsistency in the Minister. He is using this legislation to introduce new rules concerning loans but he has spent a considerable amount of time this afternoon telling the House that it is not appropriate to use this legislation to change rules in respect of other matters that may arise in the conduct of referenda—for example, expenditure on publicity or the rules governing the donations that authorised individuals may give. Why is it okay for the Government to change the rules here where it happens to suit them and not in those other respects?
Lord Soley
May I ask for clarity? I found the Minister’s comments confusing. He seemed to be saying that, because the rules were not ready, we could not change this, but he was setting aside time or something—I did not understand that bit—so that we could change it at a later date. I think that he needs to explain that a bit better.
Lord McNally
These rules will come into force once the Bill becomes an Act. This amendment merely brings the legislation into line with the new civil sanctions that the Electoral Commission is bringing in for political party operations—civil sanctions that I greatly welcome, because they give the Electoral Commission a degree of flexibility in getting discipline into elections rather than the constant threat of criminal sanctions.
Lord Soley
I understood the Minister to say—maybe I got this wrong—that the civil sanctions were not ready because they had not gone through the other House in time. Is that what he is saying?
Lord McNally
The civil sanctions in relation to the referendum will not apply until this Act is passed. The civil sanctions that are being brought in apply to elections and the conduct of parties in elections. The amendment merely brings the Bill into line with what was done on 1 December, but the civil sanctions in relation to the referendum will not be in force until this Act is on the statute book.
Lord Gilbert
The noble Lord, Lord McNally, is probably too young to remember the referendum of 1975, which was shamelessly rigged by the Government of the day—a Government of whom I was a member. The no voters were allowed to have a leaflet published and distributed at public expense, as were the yes voters. But the Government then brought out a third leaflet, which said yes; it was rather bigger, as I recall, than either of the other two leaflets. The referendum was therefore totally rigged. The rigging was done not by rich millionaires, as the noble Lord, Lord Lamont, seems to fear, but by the Government of the day. Can we have an assurance that there will be no repetition of that behaviour?
Lord McNally
I am sad to say that not only am I old enough to remember that referendum but I was adviser to the Foreign Secretary of the day. My memory of that referendum, which gives me real confidence about this one, is that the Labour Government had an agreement to differ, which allowed the various parts of the Labour Party to campaign vigorously on either side of the debate yet come together again after the decision of the people. That is why I have every confidence that the same will happen again next May. I have no doubt that individuals in the coalition will take different views. I think that my noble friend Lord Strathclyde has said that he hopes to campaign up in Scotland with the noble Lord, Lord Foulkes, which is a frightening thought for anybody.
Lord Maxton
Like my noble friend Lord McAvoy, I was part of the no campaign in the 1975 referendum. I remember that the government leaflet was not as balanced as everybody thought; in fact, it was very much in favour of the yes vote. Will the Minister answer the question that my noble friend Lord Gilbert put? Do the Government intend to produce a leaflet in favour?
Lord McNally
No, the Government do not intend to produce a leaflet. No, the Government do not intend to rig the referendum.
Lord Lamont of Lerwick
Does the Electoral Commission intend to produce a leaflet or anything on the internet?
Lord McNally
I think that the Electoral Commission will publish some guidance on the conduct of the referendum, but it certainly will not make any judgment on the question to be put before the people. The one thing that I do remember about the 1975 referendum is that it gave a resounding 2:1 yes vote.
Lord Rooker
According to the Bill, the Electoral Commission is going to produce a leaflet explaining the AV system; it will go through every front door in the country. We would like to see a draft of that leaflet, because that is where the value judgments come in. How will it explain this rigged, dishonest AV system, which is so open to abuse? As I have said, I will be forced to vote for first past the post if that is the alternative.
Lord Deben
If there is to be a leaflet from the Electoral Commission—I find that idea difficult, because the Electoral Commission will have an attitude that comes through—will it give a full and detailed explanation of why AV has not always worked and will there be an explanation of why the first past the post system is on occasion thought to be better? That is the only way in which there can be an unbiased leaflet. If it merely explains AV, it will lead people to believe that the system is sensible, when it manifestly is not, because the leaflet will have the Electoral Commission’s name on it and will therefore be taken more seriously than it would be if it did not. It seems wholly unacceptable that the Electoral Commission should interfere in something that is none of its own business.
Lord McNally
I think that the opponents of the yes vote are already getting their excuses in. The leaflet will help people to make a decision and factually explain both systems. I am not sure that the outcome of the 1975 referendum owed itself to a government leaflet in the way that the noble Lord, Lord Gilbert, suggested.
Lord Lamont of Lerwick
But does the Minister remember that the leaflet that was published had a map of the United Kingdom on the front that left Orkney and Shetland off, which were the only areas to vote against continuing our membership of the EEC?
Lord Rennard
My Lords, could I invite the Minister and other noble Lords to confine their arguments more to Amendment 39B, which deals with civil sanctions, and perhaps make other arguments when we are dealing with other relevant parts of the Bill?
Lord McNally
I am only glad that my noble and learned friend Lord Wallace was not here to hear of that dreadful omission from the 1975 leaflet.
Lord Campbell-Savours
Perhaps I may help the Minister. I attended a meeting of the Electoral Commission in the House about two months ago. The commission was so scrupulous about not wishing to indicate any view that it found it difficult to answer questions, which Members listening to its explanation of what was going to happen found hardly credible—indeed, they started laughing. It is trying to be independent, but it would be very helpful if we could see some of the leaflets that it is planning to put out.
Lord McNally
I will not promise that this Committee on the Bill will become a drafting committee for a leaflet, but I share the noble Lord’s view of the Electoral Commission. It is nobody’s poodle; it will take its responsibilities very seriously. If it says that it is going to produce a factual leaflet, I believe it.
Lord Soley
I agree with that, too. The problem is that the Minister raised it.
Lord Soley
If it was not the Minister, it was someone else and he responded to it. It was the Minister who started talking about the leaflet.
Lord Soley
I would be happy with that. Let me be clear. I was responding to the exchange that took place in which the Minister talked about a leaflet.
Lord McNally
As we drift down this stream, we do, I confess, go into inlets and rivulets.
Lord Falconer of Thoroton
This provision introduces civil sanctions in relation to criminal offences set out in Schedule 9. As I understand it, the criminal offences, of which there are 12 in paragraph 8, are designed to ensure that either permitted participants or authorised—
Sorry, there is not much point me asking a question if you are chattering away.
Lord Falconer of Thoroton
The offences under paragraph 8 are knowledge and ought-to-know offences. Can the noble Lord give some indication, because it will obviously be important to the people involved, of what circumstances will determine whether the sanction is civil or criminal? The offences have maximum terms. What is the maximum civil sanction that can be applied? Who will determine whether it is a civil sanction or a criminal sanction?
Lord McNally
First, I do not believe that the role of the Electoral Commission is as passive as the noble Lord, Lord Soley, suggests, as was demonstrated by the fact that it suggested a better question for the referendum, which was taken on board by the Government and implemented in the Bill. I supported the establishment of the Electoral Commission and welcomed the introduction of political input into its deliberations. I remember when we first discussed it, the noble Baroness, Lady Gould, and others and I pointed out that there was a necessity to have some sensitivity about how political campaigning was carried on by mainly voluntary organisations. The Electoral Commission has performed its duties well, and I have every confidence in its being able to carry out its responsibilities under the Bill.
Lord Howarth of Newport
I am glad to hear the Minister affirm his confidence in the Electoral Commission. Does he repudiate the very unkind remarks about the chair of the Electoral Commission made by his right honourable friend Eric Pickles a few months ago? The chair came under heavy personal criticism from his right honourable friend.
Lord McNally
I shall not comment one way or the other on extraneous interventions like that, for goodness’ sake.
The noble Lord, Lord Lipsey, gave me a slap about getting irritated, but the point is that these election rules and regulations—most of the schedules to the Bill—are straight lifts from existing legislation put in place by the last Labour Government, so it comes as a surprise that people who were Ministers in that Government suddenly find all kinds of loopholes and dangers in that legislation. We have transposed into the schedules existing legislation, bringing it as up to date as we can with this amendment and this clause.
I am not a lawyer but, as far as I understand it, the civil sanctions have been brought in because, as I said earlier—and this is not in my brief but from my understanding of it, so perhaps if I am wrong one of the experts behind me can correct me—the criminal sanctions in the existing legislation were felt to be far too heavy-handed, particularly as they applied to volunteer officers in political parties. A range of civil sanctions were brought in that allowed the Electoral Commission a degree of flexibility, from giving a little advice to an errant officer to applying heavy sanctions. That flexibility was intended in bringing in civil sanctions. The decision on how to apply them is one for the Electoral Commission.
As noble Lords know from briefings sent to them, the Electoral Commission is following very closely these deliberations and listening very closely to the points made by noble Lords on all sides. I have every confidence that, if a point is made that the Electoral Commission thinks is of substance and needs to be dealt with, it will not hesitate to bring this to the attention of Ministers and Members of the Opposition, just as it has done in the past. The clause is a fairly narrow one to make provisions regarding the regulation of loans and bring the regulations under the referendum up to date with the legislation already introduced on 1 December.
Lord Soley
I do not want to continue the discussions that we have had other than to close them down. This is all the fault of my old and noble friend Lord Gilbert, with whom I had the great pleasure to be an international observer at the first free elections in Mongolia, which was quite an experience for both of us—and an even bigger experience for the Mongolians. I should say, in case I misled the House or the Minister, that I did not intend to imply—and I do not think that I implied—that the Electoral Commission was passive, which was the word that he used. I simply tried to describe the dilemma facing organisations such as the Electoral Commission as to whether Parliament should make more detailed rules, or whether they should make them and keep things on a very simple basis. That is a very important debate, but it is one that we get to under Clause 9.
Lord Lipsey
In the same spirit, I think that I misrepresented Schedule 1, and therefore the Minister, because there is a proposal in there on which it would be possible to hang a discussion about a possible leaflet—namely, the public information measures. I apologise for that and ask the Minister to confirm that it would be fully in order for the House to have a proper debate about the very important issues raised about the leaflet when we get to Schedule 1.
Lord McNally
I give that assurance and sincerely hope that the noble Lord, Lord Strathclyde, has it on his list to deal with that schedule.
Lord Newton of Braintree
My Lords, one of my problems at the moment is that I can hardly stray into these debates without finding that somebody stirs me up. That has happened on this occasion. I was Lord President of the Council for five years, probably longer than anybody else since the war—with the possible exception of Herbert Morrison—or indeed, since the role was created.
I am strongly inclined to stick with my noble friend; he will be glad to hear that, I hope. The clue to this is what was said by the noble Lord, Lord Bach, which completely refutes what has just been said—I am somewhat surprised to say—by the noble Lord, Lord Lipsey. The phrase used in legislation—I do not know how it was done when there used to be Ministers as well as Secretaries of State—is “Secretary of State”. It is not “Secretary of State for Justice”; it is not “Secretary of State for this, that or the other”. It means that any Secretary of State, constitutionally, can exercise those powers. The point from the noble Lord, Lord Lipsey, falls in my view, because any confusion that there is is basic and written in and just goes on.
My point therefore, and declaring my former interest, is that I do not see why the Lord President of the Council, who is certainly a Cabinet Minister and with the status of a Secretary of State, should not have the same ability to do what all other Cabinet Ministers designated as Secretaries of State can do. I stick with my noble friend.
Lord McNally
I think I am now 2-1 up in the interventions of my noble friend Lord Newton; I am very pleased about that. It is an interesting thought. I am surprised that the other side should leap on this to assume that it was the Secretary of State for Justice. As I explained, I am here in my capacity as Deputy Leader of the House of Lords, and covering Cabinet Office business. When I studied my constitutional stuff at university, I learned that “Secretary of State” was a portmanteau term in government, not specific to any one person.
The noble Lord, Lord Lipsey, talks of scope for mischief-making. For half this Committee, we have constantly been told that this project has been driven through by Nick Clegg and Nick Clegg alone. If we go through the various Hansards, we will find that Nick Clegg has been named more often by the Opposition than any other single person. The Government have put into the Bill who has the responsibility for this legislation. It applies to something that will be carried out next May, when we will be celebrating the first of the five years of Nick Clegg being Lord President of the Council, but nevertheless it is relevant to this Bill. It is simply a matter of common sense to have him named. I agree with my noble friend, Lord Newton. In the past, there have been people who have carried the dual title of Lord President and Secretary of State because of that curious anomaly of what Secretaries of State can do. As I remember it, it used to be only the Minister of Agriculture who was not a Secretary of State. All the rest were. I am sure it is not mischief-making.
The arrangements in the Bill make sense. They allow the Deputy Prime Minister to take key decisions with nationwide effect, but also enable decisions with a specific territorial flavour to be made by the territorial Ministers. For this reason, I urge the noble Lord to withdraw his amendment.
Lord Bach
My Lords, I shall of course withdraw the amendment but this is an interesting point because, as far as I know, it has never been done before. If the Minister has some precedent for it, I will be proved wrong. What most upsets me about the whole debate is having stirred up the noble Lord, Lord Newton. I do not enjoy doing that at all, although he does not seem much stirred up to me.
Lord Bach
My Lords, I was trying to be as polite as I possibly could be. One of the dangers of personalising it in this way, as I think my noble friend Lord Campbell-Savours is hinting, is that Mr Clegg may be either so popular that his name, as it were, in making the orders means that what he wants will occur or, heaven forbid, so unpopular that whatever he does or suggests means that what he wants will not happen. To that extent, I agree with my noble friend.
Lord McNally
On the point about Secretaries of State, I think the intention is that those in mind are the Secretary of State for Scotland and the Secretary of State for Wales.
Lord McNally
If there was to be anything specifically territorial, the Secretary of State could take responsibility there. That is my interpretation of it, but there is no great mystery about it. It is simply that, as I said at the very beginning, the Lord President is steering this Bill. He steered it very successfully through the House of Commons and we are doing the same.
Lord Bach
The Minister is being unfair to himself. The Lord President of the Council was hardly seen in the House of Commons while the Bill went through it. I think that he moved the Second Reading and did not appear again until Report. But we are seeing a great deal of the noble Lord, which is of course always a huge pleasure.
Baroness Liddell of Coatdyke
I am a bit confused about something that the Minister said about the territorial responsibilities of the Lord President. Having been a Secretary of State for Scotland, I am not absolutely clear that that is the position. It might be helpful if the Minister could seek greater clarity from his inestimable advisers.
Lord McNally
This is about the Lord President’s territorial responsibilities. With the ability of my friends opposite to become confused, I should never have intervened again. I am sorry, for it was a very bad mistake as the noble Lord was just about to withdraw.
Lord McNally
I have been around Whitehall and Westminster only for about 40 years, but during the whole of that time people from the Opposition Benches have stood up and made that speech about various bits of legislation. In fact, as noble Lords opposite will know, the time offered in the other place for scrutiny of the Bill was positively extravagant, matched only by the verbosity and time-wasting of the spokesmen for the Opposition, who used every opportunity to waste time exactly so that somebody at this end could make the complaint that the noble Lord has just made—and the noble Lord, Lord Rooker, knows that more than most.
Lord Rooker
When I took this Bill on holiday to read in the summer, it was 153 pages. When it arrived in this House, it was 300. Yet the Minister has the brass neck to say that the other place was time-wasting, when the Bill doubled because of 286 government amendments that were put into the Bill in the House of Commons. Come off it!
Lord Falconer of Thoroton
I did not know what Mr Bill Cash said in the other place but it would help in relation to respect for Parliament if the noble Lord, Lord McNally, would think about withdrawing what he said.
Lord McNally
I have been around this Parliament for 40 years and I do not need lectures from the noble and learned Lord about respect for its traditions and for its importance. I did not suggest anything other than something he knows darn well. For as long as I have been here, and long before, Governments have brought in guillotines and Oppositions have complained about lack of time and scrutiny. That is all that I said. That is all that is in Hansard. I am not going to take lectures from the noble and learned Lord about respect for this Parliament and its institutions. I have given my life to this. I believe in it passionately. I respect it as much as the noble Lord, Lord Rooker, respects it. No more, no less. But I am not being lectured to or allowing my words to be twisted. I am simply saying something that every noble Lord knows is a simple truth—nothing more, nothing less—and certainly with no disrespect to Parliament.
Lord Falconer of Thoroton
I have understood the Minister to say that the interventions by Members of Parliament down in the House of Commons were done for time-wasting purposes. I regard that as expressing contempt for their contributions. That is what I was suggesting he might think about withdrawing.
Lord McNally
More than one person has commented that the Opposition spent overlong on certain parts of the Bill and then used that as an excuse for not dealing with other parts of the Bill. Just as I have argued with colleagues who have got a little tetchy about the Opposition’s tactics, I know full well that, as one of my old text books used to say, the principal weapon of an Opposition is delay. I do not object to that, but neither do I fail to recognise it when I see it.
Lord Grocott
This is a Bill of 300 pages—and I do not apologise for repeating this—which plans to change the constitution of our country. I hope the noble Lord is not arguing that to spend five days—I am speaking from memory now, but I am pretty certain that I am right—on the Committee stage in the House of Commons and two days on Report is an inordinate or generous amount of time. I hope he is not suggesting in any way, shape or form, that the time that we have spent in this House on the scrutiny of crucial groups of amendments is any more than they properly deserve. If he does think that, I would appeal to him to let us know which group of amendments should not have been discussed or were addressing anything other than very serious matters about our constitution. He gives the impression that he is very irritated—perhaps I am wrong, perhaps we are over-sensitive on this side—at every criticism of the Bill, and at any suggestion for any amendment. If that is the way he responds, I suggest he talks to his noble friend Lord Strathclyde, who has the capacity most of the time, at the other end of the scale, for making us think that what we are saying is important—what he privately thinks I do not have the faintest idea but I will give him the credit for giving that appearance—and at the same time being amused, not being tetchy and not being irritable. We could have moved on a great deal more quickly with this amendment. The noble Lord has wasted time.
While I am on my feet, the next amendments after mine are six government amendments. I hope that the noble Lord will not do anything other than a proper courtesy to the House in explaining these amendments in proper detail. I absolutely assure him that neither I nor any of my colleagues, and I suspect any on his side of the House, will accuse him of time-wasting.
Lord McNally
If the noble Lord, Lord Rooker, wants to call me immature, that is part of the rough and tumble of politics. I am not going to say sorry. For goodness’ sake, again, I really hope that people outside read Hansard and then they can make a judgment about the handling of this Bill. I am willing to go into the details of this and argue it. We have had everything from the Mongolian elections to the sensitivities of—the Member for the Rhondda Valley, was it? I cannot remember which one it was.
Lord Bach
I am extremely disappointed that the Minister, who is normally a parliamentarian of the highest order, should on this occasion not think it right to withdraw what he said about an individual Member of Parliament. I very much regret that. It tempts me very much to call a Division on this amendment, but it is a temptation that I will resist, because I think it would be a mistake—
Lord McNally
““registration officer” has the meaning given in section 8 of the 1983 Act;”
Lord McNally
My Lords, if, when he reads Hansard, the Member for Rhondda is hurt by my remarks, I will try to comfort and reassure him that there was nothing personal in them.
These are minor and technical amendments which ensure that there is single definition of “registration officer” which applies throughout Part 1 of the Bill. This single definition replaces the existing definitions given in the various provisions in Part 1, but does not change the meaning. The amendments provide that “registration officer” has the meaning given in Section 8 of the Representation of the People Act 1983. For England, Wales and Scotland, the individual is the officer who has been appointed to this role for the relevant area. In Northern Ireland, the Chief Electoral Officer for Northern Ireland is the sole registration officer. I beg to move.
Lord Falconer of Thoroton
A drafting point: there appear to be random definitions contained in Clause 7(1). For example, we do not have definitions of “regulated transaction”, “responsible person” or “relevant donations”, which are terms referred to. Yet, suddenly, we have a definition of “registration officer”. What is the basis upon which some terms are defined in Clause 7(1) and not others? Will this not lead to confusion?
Lord McNally
As I understand it, this is an attempt to clarify the specific case of “registration officer”. We do not anticipate the kind of confusion that the noble and learned Lord anticipates in other definitions, but it is important to have a common definition for registration officers.
Lord Falconer of Thoroton
I do not want to be a total brute here, but will the noble Lord write to me? It is pretty clear what “registration officer” means throughout the Bill, but if you do not also define the other terms, there is the possibility that there will be some difference among courts as to what it is meant. Can the Minister set out the basis for selecting some terms to be defined but not others? If he would like to write to me about that, I would be perfectly happy. However, if we are trying to make this Bill a little better, setting out that basis is worth while.
Lord McNally
The noble and learned Lord has brought an entirely new atmosphere to the debate for which I am most grateful. I offer to write to him on the specific point.
Lord Falconer of Thoroton
I take the point in relation to Scotland. That is probably the only place where one can see some logic in the proposals. However, one cannot see any logic in relation to the rest of the UK. Therefore, maybe the answer—and if the noble Lord were to make proposals on this I might support him—is for us to stick with the Scottish constituencies, but leave everything else to be done on the basis of Westminster constituencies. There needs to be some explanation for why this extraordinary procedure has been adopted.
In addition to the points about practicality, there are two others. First, we have to do this without the benefit of the Electoral Commission’s views, because, as the noble Lord, Lord Grocott, said, the commission has said that that would simply delay the referendum. Sadly, the commission has not given this House the benefit of its views on whether this proposal is more practical than the one in the Bill. Secondly, there is a real force in the argument which states that if we are talking about parliamentary constituencies and how they vote in the future, there is a logic and a force in saying, “Let’s see how individual parliamentary constituencies voted”, because, for the life of me, I cannot see the logic in saying, “We’ll disclose how a London borough or the whole of Northern Ireland voted, but we won’t tell you how individual constituencies voted”.
Lord McNally
My Lords, if anything that has happened over the past four hours suggests that I am not enjoying this process, it is entirely untrue. I will write to Chris Bryant in the morning. I would not want him to think that I was attacking him personally. I am certainly not someone who has objected to the interventions of the noble Lord, Lord McAvoy. A number of Labour MPs have stopped me with a look of sheer amazement and said, “You heard Tommy McAvoy speak?”.
On the point about the Electoral Commission, I hope that noble Lords do not put sinister interpretations on this matter. If our intention is to hold the referendum on 5 May, as is absolutely clear and we continue to make clear, it is no more than the Electoral Commission’s duty for it to say that, if amendments A, B or C were to be passed, the House should be aware that this would make the situation more difficult, impossible, or whatever. The commission should not leave the House to pull the trigger and not tell it whether the gun is loaded. I do not think that the commission has done any more than that. If the Committee wants to pass the amendment, knowing its repercussions, it is open to do that, but it is not improper to say that there would be consequences to an amendment such as this.
Being a skilled advocate, the noble and learned Lord, Lord Falconer, can draw out these various bodies and make a case for a real mishmash of voting areas. In fact, the provisions that we have included in the Bill in relation to voting areas for the referendum ensure, as much as possible, that the same boundaries will be used for the referendum on the voting system as are used for other polls with which the referendum is combined. There is nothing more or less to it than that. The intent of the clause—as is the case in so much of the Bill—is to make the core decision that the electorate are being invited to make as simple as possible.
On the specific question of the noble Lord, Lord Rooker, I can tell him that the City of London is designated separately because, as he will know, it is a separate local government area within London. The other areas are the London boroughs.
Lord Falconer of Thoroton
If the principle is that the counting areas for the referendum are to be as close as possible to those for the other elections taking place on the same day, why will there be one counting area for the whole of Northern Ireland, given that it will be holding Assembly elections on the same day?
Lord McNally
I will write to the noble Lord on that. It seems that one element of confusion is that we are not asking United Kingdom constituencies to make a decision—we are asking for a national vote. It will be a yes or no poll, designed on a national basis.
Lord Howarth of Newport
My Lords, I understand the argument about administrative convenience and, of course, that argument is not negligible. However, does the Minister not think it is important that people should know how the votes have been cast, parliamentary constituency by parliamentary constituency, on what the future electoral system for those constituencies should be? Surely that is a matter of some importance to not only Members of Parliament but members of political parties, the generality of citizens and those who seek to evaluate and learn the lessons from this campaign. This is an important consideration which should not be set aside simply on grounds of administrative convenience on the day.
Lord McNally
I stand by the case for administrative convenience, but the fact that there will be a national vote, not individual constituency decisions, is the important issue. In fact, I had forgotten, until the noble Lord, Lord Rooker, helpfully reminded me, that the referendum in 1975 was not declared on a constituency basis, partly because the whole point of a referendum on an issue such as this is to get a national decision. These provisions are designed to make the voting process easier and more straightforward.
Lord Rooker
I accept that. However, the referendum in 1975 was to make a decision on whether the country—I repeat, the country—should stay in the EU or not. On 5 May next year, the issue is whether 650 individual constituencies should use a different voting system.
Lord Rooker
Of course it is. Therefore, people are entitled to know at a local level. While the noble Lord is on this point, I should say that only the count is affected here. If there is a delay in the count, so what? The Electoral Commission cannot delay when the voting take place, but what happens after the close of polls and the way that the votes are counted is what my noble and learned friend is on about. If it takes another half a day to count the votes and divide them, so what? That cannot delay the poll. It cannot affect the target date of 5 May, can it?
Lord McNally
I am not sure that I accept the argument that there is an overwhelming interest in knowing the results of a national decision constituency by constituency.
Lord Rooker
Perhaps MPs should have a free vote when the Bill returns to the other place. Let them decide; after all, they are the ones with the supreme vested interest. There is no interest more vested for an MP than their constituency boundaries and knowing what their constituents actually feel.
Lord McNally
As the noble Lord said, they have a vested interest. I want to make a national decision in the national interest.
Lord Lamont of Lerwick
I accept the argument that the noble Lord is putting forward, though there remains the mystery of Northern Ireland. However, there is also the mystery of London. Why is London on a borough basis when there are no elections in the boroughs?
Lord McNally
I suspect that, again, the decision is based on administrative convenience, which is not a dishonourable reason. What we are trying to do, as I have said so many times before, is to make the procedure as straightforward as possible. I believe there was an amendment in the other place. Perhaps, when this Bill goes back to the other place, Mr Chris Bryant will put down an amendment for a constituency base.
Lord Howarth of Newport
Is the noble Lord really saying that it does not matter whether Members of Parliament hear the voices of their constituents, and whether Members of Parliament know what judgment their constituents have come to on this matter of what the parliamentary voting system should be?
Lord McNally
The noble Lord is a master at pious interventions. Members will campaign, make their voices heard and assess their constituencies. I give way to my noble friend.
Lord McAvoy
I am grateful to the Minister for giving way. The year 1975 was a long time ago. The year 1997 was a long time ago. Surely a general election is also a national poll affecting the whole country, and that is declared by constituency. What is wrong with moving away from the old superior top-down style of saying, “Well, the country will vote and you won’t know locally”? Surely that is progress.
Lord McNally
The country will know locally. However, we are making a national decision. We are adopting systems and procedures which make things as simple and straightforward for electors as possible.
Lord Campbell-Savours
Perhaps I may ask a question which is very relevant. For a moment, the Minister obviously felt that Chris Bryant of the other place would have the chance to table an amendment to deal with this matter, but he cannot do that under the procedural arrangements because we are going to ping-pong. If that is the case, could the Minister accept the amendment and enable Members in the other place to do precisely what he suggested that they might wish to do?
Lord McNally
That is a merry thought, but no. We will resist this amendment and we urge the noble Lord to withdraw it.
Lord Grocott
My Lords, any neutral observer would say that this is a simple and straightforward proposition that the results of a referendum about parliamentary constituencies should be counted and declared on the basis of parliamentary constituencies. It is not rocket science and it is not complicated. It is common sense, and I think the Minister knows as much. What has been established in this debate—I had not realised how clearly it would be established—is what a complete dog’s breakfast the list of counting districts is in the Bill. I will not go through the list again, but it is pretty random. It is a case of: wherever you can find a returning officer, let us have an election counted and declared. It is of no significance, no interest and no consistency that I can see.
I remind the Minister that we do not hold referenda or make decisions in this House on the basis of convenience for the Electoral Commission. The Electoral Commission’s report is essentially saying “It is not a convenient way of doing it”, which was the nub of the argument that the noble Lord, Lord McNally, presented to us—that it was much more convenient to hold elections on the basis of these various randomly selected electoral areas as determined in the Bill. I believe that my noble friend Lord Howarth made the point that it is treating a national referendum on changing the constitution as being a secondary event on the day—“Oh, we’re counting borough elections, so we might as well count the referendum within the same electoral areas”. If I may say so, all the arguments on any kind of coherent principle have been on one side, and the arguments for convenience have been on the other. Indeed, he admitted it was for convenience and I do not think I am misrepresenting him.