Parliamentary Voting System and Constituencies Bill

Lord Rooker Excerpts

Tuesday 8th February 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, in order to give the Boundary Commissions a clear direction on this, we have indicated that there will be a maximum of two days. I do not think that anything would prevent a postponement of two days. We are giving the commissions a degree of flexibility, but the period will be a maximum of two days to make it clear that the hearings cannot go on and on. They are intended to be public engagement, not lengthy inquiry hearings.

In response also to the point made by the noble Lord, Lord Lipsey, it is open to the commissions to set clear procedures for the hearings to ensure consistency. However, the chair will be able to ensure that the procedure for the hearings can adapt to local or unexpected circumstances. This balance of discretion for the commissions and the clear powers for the chair set out in legislation makes the procedures robust against judicial review.

Let us not forget that the Boundary Commissions are each chaired by a High Court judge—or, rather, they are chaired by the Speaker, but the deputy chairs will be High Court judges or their equivalent. I have no doubt whatever that sensitivity to due process will be paramount among their concerns. There has been no suggestion throughout our long debates that the Boundary Commissions have been anything other than scrupulously independent and committed to fairness in their deliberations. They are guarantees of the process being fair. However, let me be clear what these amendments envisage. It is not a return to adversarial inquiries dominated by legal argument. That would be to invent what we know, from experience, does not work. It is new; it is a culture change; and we believe it is a better concept—an open hearing, neutrally and fairly chaired, at which the people can have their say. It is not a substitute for the deliberations of the Boundary Commissions, but another means for people to tell them what they think.

We will no doubt hear arguments about the importance or otherwise of legal professionals being involved in chairing hearings. The commissions will have absolute discretion to appoint individuals who may or may not be legally qualified, and we have tabled an amendment to broaden the purposes for which assistant commissioners may be engaged. If the commissions consider that there is merit in using a suitably legally qualified person to chair the hearings—and we recognise that a legal skill set may well be advantageous—it is open to them to do so. However, if there are other individuals, such as senior public servants or commission employees, who are equally able to chair these proceedings that are designed to engage the public, there is no way in which they should be disqualified from doing so—indeed, they should be allowed to do so.

It is worth considering that the Parliamentary Constituencies Act 1986 makes no provision that the existing inquiries must be chaired by a legally qualified person, or indeed be involved in any of the elaborate processes that have grown up around these inquiries. What that legislation fails to do—a failing that our proposals address—is to make the purpose of a hearing sufficiently clear. The result is that the commissions are exposed and inquiries are no longer about people having their say but about exhaustive legal arguments designed to avoid a judicial review.

I expect that we will hear also that an oral stage requires a chair who is independent from the commissions, and who must produce a lengthy deliberative report. The Government do not accept this premise. The commissions themselves are independent, so there is no need for further separation between a commission and the arguments being put forward. The representations made at the hearings will be taken into consideration by the commissions—the amendment requires them to do it—and it will be for them to consider how best to do this. Weighing the representations made in writing, and those put in person at hearings, against all the other factors in the legislation, and against the proposals made across the regions, is the point of having a Boundary Commission. We do not require a further intermediate step.

We propose something that is culturally different from what has gone before. I note the amendments to the amendment that have been tabled, and I am grateful for the dialogue that I have had with the noble and learned Baroness, Lady Scotland. However, at the end of the day it boils down to a difference in culture and approach. Several amendments state: “delete ‘hearing’, insert ‘inquiry’”. That is at the heart of what this is about.

[Lord Rooker]

I agree with much of what the Minister says, but if we are going to have a real culture change, it will be no good starting at 10.30 am and finishing at 3:30 pm, which is what the old culture does. If we are down to two days, let us have two real working days so that we have genuine participation even in the truncated time that I think is too short; I suggested five days. The new culture will be no good on the timescales that operated in the past.

[Lord Wallace of Tankerness]

I will not go down the road of wondering who the timescale was intended to suit. It is clear that Boundary Commissions have discretion in their proceedings. The comment made by the noble Lord, Lord Rooker, is very fair. We want to make sure that the time is best used and that people whose work patterns do not necessarily fit a 10.30 am to 3.30 pm programme have the opportunity to exercise their discretion, and that people have the maximum number of opportunities to contribute.

--- Later in debate ---

[Lord Faulks]

My Lords, the noble and learned Lord, Lord Wallace of Tankerness, described this proposal as being culturally different from what had gone before. He is right in one sense, but I respectfully suggest that it is very much in line with the way in which a lot of procedures are developing. We are not obsessed by prolonged oral hearings with laborious cross-examination, dominated by lawyers—and here I must declare an interest as a member of that much maligned species. Rather, it is a sensible way of dealing with matters so that there can be full written representations followed by a public hearing. I think that the expression “public hearing” is an attractive one, as opposed to a “public inquiry”, which sounds rather murky and obscure from the point of view of the public, for whose benefit it is supposed to be.

I hope very much that such a hearing will be “lawyer light”. There is no need for the chair to be a lawyer; it might be better if they are not. What we require from the chair is someone who is capable of organising a hearing at which everyone who has a reasonable interest in a matter can have their interest properly heard and recorded. I accept the observation by the noble Lord, Lord Rooker, that there is no need to stick to strict court hours, and one hopes that the chair will allow a longer period as necessary.

We are talking about, I hope, an informal but thorough hearing. It allows what, as I understood it, the Opposition required—in effect, a day in court, an opportunity for people to say that they have said something as well as written something. This seems to be an extremely practical and fair solution, and I will support it.

[Lord Rooker]

I want to raise a point that only the noble Lord, Lord Pannick, has touched on. I speak as someone who was in the other place and went through two boundary inquiries. Most Members of Parliament fail when dealing with casework, and they have to give their constituents bad news. Most constituents receive that news on the basis that their case has been taken to the top; they accept that, and that is the end of the matter. That is a generalisation, but by and large it is my experience.

On both of the boundary changes that we dealt with—I am speaking only about the evidence from the city of Birmingham—we as Members of Parliament took criticism from members of the public, churches and party members, and this applied to both major parties as we were very much a two-party city in those days. The criticism was that someone had come up from London who had never been there before and was redrawing boundaries and sticking this ward into the constituency when we wanted that one instead.

I remember one particular incident, at a public community meeting separate from the boundary inquiry, that I was able to quell. It was not a riot, but it was pretty bad. I said to people, “Look, we might disagree, but we don’t even know this guy’s name or his background. He’s a lawyer, and he has chaired the meeting, but at least we’ve been able to put our case and argue the case with the Tory party”. There was a major argument about a big ward, with 20,000 electors, going in. We were able to say to people, “We’ve had our day in court”—the very phrase that has just been used. We were able to say that we had argued the toss with our political opponents and that it had been done openly and transparently. Everyone accepted that. Whether we won or lost, it probably did not materially affect the political outcome, but it was thought that it might.

There are probably far more people interested in this change than there have been in previous boundary changes, for obvious reasons. It is important to be able to report back to the interested public and say that their case has been listened to; that they have been able to put up a challenge, because there will be political arguments on this; and that they might have lost, but it was done openly and fairly. However, I do not think that it will be seen to have been done fairly. No MP will be able to do what I did and say to constituents, “You were able to argue and challenge the opposing views. We lost, but it was done in the open, and that’s the way that it is done in Britain”. That is something to be regretted.

[Lord Tyler]

My Lords, I am encouraged by the noble Lord, Lord Rooker, to make a brief intervention, because I am not a lawyer. Until he spoke, everyone was speaking with huge legal experience.

I have a practical question that your Lordships’ House needs to give some attention to. It seems to me that the danger is not successful judicial review—or any sort of legal challenge—rather, it is that all over the country the opportunity will be taken to try and delay the process, for reasons that we all understand, so that the changes will not be in place ready for the 2015 election. I have appeared at inquiries and before commissions—unpaid, of course, as I was not a lawyer. I was reminded of this by the noble Lord, Lord Rooker. Imagine the circumstances when a number of MPs who see their seats being changed do not necessarily think that they could be successful at judicial review but think it is worth trying to delay the process. There could be 400 applications for judicial review. That seems to be the danger.

I understand what the noble Lord, Lord Pannick, is saying. I understand what other lawyers are saying. My fear is simply that this process will be undermined not by successful judicial review but by attempts to try and delay the process. If that is the game that we have to foresee, then your Lordships’ House will be blamed for delaying an important process that will give equality of votes to a lot of our fellow citizens.