Scotland Bill

Lord Steel of Aikwood Excerpts

Thursday 26th January 2012 Lords Chamber

[Lord Foulkes of Cumnock]

There is scope for another amendment, I think. I have tabled enough already, so perhaps the noble Lord might think of tabling one. Everyone here from Scotland will know that list Members have a habit of choosing a seat they would like to stand for in the constituency and then concentrate on opening an office and taking up issues in that constituency. If the constituency Member cannot deal with a problem—elected Members will know that some problems are insoluble—the candidate will jump on the bandwagon and take it up.

Dual candidacy is a real problem. I have tabled a later amendment proposing a general review of the electoral system. I will discuss that in greater detail when we get to that amendment. It would be a better way of dealing with the issue in the longer term, but this would deal with it in the short term. Our electoral system was set up with the best of intentions, but even the noble Lord, Lord Steel, who was involved, now recognises that it is not fit for purpose. One of the problems is the question of dual candidacy. I hope that other Members who have experienced the problems of dual candidacy in Scotland will comment, and I certainly hope that the Minister will consider the potential change and, at the very least, explain why there should be a different system in Scotland from the one that I understand operates quite successfully in Wales.

[Lord Steel of Aikwood]

My Lords, the noble Lord has raised two very important, if minor points. We have to remember that when we were legislating on the then Scotland Bill, in which I was involved in this Chamber, the additional Member system, as it is known, was completely new to this country. There were one or two loose ends that were not quite right.

On Amendment 16, which is the noble Lord’s more substantial amendment, I entirely agree with him. As Presiding Officer I had to deal privately with complaints from constituency Members about the activities of regional Members. It is slightly worse than the noble Lord said because quite often regional Members had not just stood and been defeated, they were intending to stand again in the constituency. People were sitting in the Parliament—quite unlike this place—and had every intention of fighting a Member sitting on another Bench. That made for bad relations within the Parliament and some people—I shall name no names—exploited it disgracefully. In Wales—

[Lord Wigley]

My Lords—

[Lord Steel of Aikwood]

I shall give way in a second. The same problem arose in the original Welsh legislation—the noble Lord will correct me if I am wrong—but it was the wish of the Welsh people to change the rule. Unfortunately there is not the same will in Scotland, not even in my own party.

[Lord Wigley]

It was not exactly the same in Wales. The circumstances are different in that there are four Members on the list in Wales, compared with seven in Scotland. The proposed changes would not overcome one of the basic problems. Someone who has been elected on a list can still stand at the next election for a constituency seat and do exactly what the noble Lord described, and can give up the regional seat in standing for the constituency.

[Lord Steel of Aikwood]

I take that, but what they cannot do in Wales and not only can but actually do in Scotland is stand in the constituency and also be on the list. They have a fallback position which is not the case in Wales. That is wrong and it should be put right. Whether we can do it in this Bill is another matter but the noble Lord, Lord Foulkes, raises a very important point.

On the noble Lord’s other more minor amendment about by-elections in the event of an independent Member creating a vacancy, I have an additional point to make. My memory is fading but I think that I gave evidence to the Calman commission, which has not dealt with it in the report. I was elected on the regional list as a Liberal Democrat and when I went into the Chair, of course, I had to resign from the party. There was no way that I could be re-elected because I was no longer a member of the party; I was an independent. I could not stand in Edinburgh and say, “Please elect me because I am the Presiding Officer”. I am not saying that I wanted to particularly but it was impossible to do it. My two successors were fortunately elected in constituencies but that might not always be so. When a Presiding Officer happens to be a regional list Member there is no way that he or she can continue for a second Parliament. That cannot be right. There is a minor problem in addition about independents standing on the regional list. The whole thing would be clarified if we had a different electoral system but we are saddled with what we have now and I have no instant solution to that problem. It is one that ought to be taken up as we proceed with the Bill.

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[Lord Steel of Aikwood]

Is the noble Lord aware that the Conservative Party in Scotland had precisely the opposite rule—that in order to be on the list you had to stand in a constituency?

[Lord Browne of Ladyton]

I am most grateful. Every day I come to work in your Lordships’ House I learn something, and that is today’s learning experience. I had no idea that that was the case. Maybe at some stage—I will not take up your Lordships’ time with this now—somebody will explain to me why that was the case.

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Debate on whether Clause 4 should stand part of the Bill.

[Lord Steel of Aikwood]

My Lords, I am very grateful to the Government for including in the Bill the second part of this clause on the election of the Presiding Officer, possible deputies and temporary deputies. It arose directly out of evidence that I gave to the Calman commission, which arose in turn from my own experience when, despite trying to juggle radiotherapy for prostate cancer with my duties in the chair, I was absent for some time, and the Parliament found that it had no provision to enable it appoint even a temporary deputy to help take the load. I am glad that this clause appears in the Bill. I am thankful and I welcome it.

The other point that I wish to make is slightly astray of the Bill. Members of the House will note that under Clause 4(3) the Parliament has 14 days from polling day to meet and elect a Presiding Officer. That is in stark contrast to what happens here. I have on other occasions severely criticised the haste with which the present coalition was put together, which I thought was entirely unnecessary. Under the Scottish arrangement, which was already much looser, because of proportional representation it was anticipated before the first election that a coalition was more likely than not and therefore that there was plenty of time. My noble and learned friend was actively involved and will remember how long it took, even with a more limited agenda, which the Scottish Parliament has compared with Westminster, to put a coalition together. It was done with great care and skill and it worked. Without going into extraneous matters, I think that the haste with which the coalition was put together at Westminster was a mistake and that perhaps they can learn by reading Clause 4 of this excellent Bill.

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[Lord Boyd of Duncansby]

I thank the noble and learned Lord for his explanation and his offer of a letter, which will help. We have had a long debate on this but some important issues and points of principle have been raised.

[Lord Steel of Aikwood]

I do not know whether I am interrupting at the wrong point but, after listening to the past hour of debate, I want to add that even those of us who are enthusiastic about devolution have to admit that it has created a field day for lawyers. We have lawyers galore all over the place. I was most grateful to the noble and learned Lord, Lord Boyd, for describing very accurately at the beginning of his speech the triple-lock mechanisms that exist, first, with the Executive’s legal advice, then with the Presiding Officer’s legal advice, and finally with the Advocate-General’s legal advice, to ensure that we do not get into difficulties with one Parliament attempting to legislate where it has no authority to do so.

I seem to recall that in the very early days of the new Parliament—my noble and learned friend and the noble and learned Lord, Lord Boyd, will correct me if I have this wrong—when my noble and learned friend was Minister of Justice and the noble and learned Lord was the Solicitor-General, we had real difficulty in my department because the law department was not fully staffed. Both noble and learned Lords will remember that we had a backlog of legislation from the days when my noble friend Lord Forsyth rightly said that he was effectively in opposition rather than in government, and we had all the reports of the Scottish Law Commission waiting to be put into effect. We had a flood of very early legislation, none of which was particularly controversial but all of which had to be gone through. I remember that the staff in my office were almost in a state of breakdown because they did not have the capacity to give the necessary legal advice, although it was eventually given.

My noble friend Lord Stephen asked whether the legal advice would be made public. The answer is no, not normally anyway. After all, legal advice is advice; the decision rests with Ministers and with the Presiding Officer. What would happen if there were an FOI request, I have no idea. It never happened in my time so I do not know the answer to that. However, it is important that everybody knows that these locks exist even though, as I say, they provide endless employment for lawyers on a grand scale.

The noble and learned Lord, Lord Boyd, mentioned emergency legislation. I hope noble Lords will forgive me if I mention a final anecdote, but I recall the occasion when we had to rush through a piece of emergency legislation following a decision of the court over the release of somebody from Carstairs Hospital. That occurred one summer. I remember it clearly. Her Majesty was at Balmoral. I was told that the Advocate-General could not possibly take the 28 days that he was normally allowed and that the measure would be rushed through. I was asked where I was going to be located in order to receive the Advocate-General’s advice, sign it off and send a letter to Her Majesty asking her to give Royal Assent. I was at home. I think that it must have been a Saturday as I was having lunch, untypically, with two hereditary Conservative Members of this House. That was not my normal custom but just happened to be the case on that occasion. A courier arrived on a motor bike from Edinburgh. He saw me through the kitchen window and so knocked on that window rather than going to the door. I opened the window, received the document, undid all the pink ribbon and the vellum, looked at the Advocate-General’s response and signed the letter to Her Majesty asking her whether she would be kind enough to give Royal Assent to this very important emergency legislation. I gave the letter back to the man on the motor bike and asked him, “Are you taking this to Balmoral now?”. He replied, “Yes”. I said, “Let me give you a piece of advice. When you get there, don’t knock on her kitchen window”.

[Lord Selkirk of Douglas]

I thank my noble and learned friend very much indeed for accepting the principle of the amendment. I hope I may say, by way of a one-sentence reply to the noble Lord, Lord Steel, that he reminds me of the famous parliamentary statement that lawyers should be elected only with so much circumspection, and therefore it will not happen very often.

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[Lord Foulkes of Cumnock]

My history is wrong; I shall have to check with the noble Duke afterwards.

The amendment would set up a general review of the electoral system for the Scottish Parliament, and it is about time that we had such a review. As was said in one of our earlier debates, the additional member system was very new to Scotland—and to the United Kingdom. It is similar to the German system but was very new to us. It was devised through multiparty discussions—not all parties were involved—as to what might be a suitable proportional system to ensure that no party would have an overall majority, an issue to which we will come back; and to ensure that all parties were properly represented in the Scottish Parliament.

However, because the system was new, my recollection is that it was recommended that there should be a review after two Sessions of the Scottish Parliament. We are now into the fifth Session and there has been no review. It is about time that we had one and, as I understand it, it is our responsibility to suggest, if not actually to set up, a review. It was recommended by the Arbuthnott committee, and I shall come back to that in a moment. If I may mention him, even one of the architects of the additional member system or at least one of the people involved in the discussions that led up to it, the noble Lord, Lord Steel—I blame other people for the system—has been reported as saying he believes that it is no longer fit for purpose. I have spoken to a number of people who have come to the same conclusion.

Let me deal with one or two of the problems. First, we have two types of MSPs—list Members and constituency Members. When the system was set up, the division between them was much greater than now. There has been some attempt to bring them together and to reduce the differences. Nevertheless, it is clear that constituency Members have the primary constituency responsibility. Regional Members, who have responsibility for a whole region, in the past few Parliaments have been increasingly requested and required to take on responsibility for individual cases referred to them. What is of course happening is that members of the public go first to their constituency Member who takes the matter up with officials and resolves the problems, if possible. However, some problems do not have a resolution. Those of us who have been Members of Parliament will know that problems can be intractable. However, the individual constituent does not necessarily think that and then says he will go over the head of the constituency Member to the regional Member. Later on, if the regional Member cannot deal with the problem, it comes to the MP. No doubt, if a senate were to replace this place, and if the MP could not deal with the problem, the constituent would go to the senator. That is a debate for another day.

There is a division between the types of MSPs. They have different workloads; there is overlap, competition and confusion between them. We heard earlier that some regional MSPs target constituencies. They set up offices and work in constituencies with a view to fighting the sitting MSP at the next election. The system seems almost designed for them to do that. Having two types of Members creates a problem.

Secondly, there is confusion in voting. Members will understand that and will have seen it happening. When you explain to members of the public that they have two votes, they find it difficult to understand the purpose of those two votes. It is difficult to explain their purpose. We in the Labour Party—those in other parties do exactly the same—say, “First vote for the constituency member and then vote for the party”, but it is inevitable that someone will say, “Okay, I’ll give my first vote to this Labour constituency member, but I like the Greens”, or the Liberal Democrats, “as well, so I will give them my second preference”. Sometimes there is confusion that it is a preference vote, which of course it is not; it is a different voting system.

Arbuthnott stated in his report:

“The Commission found that there were problems with the public understanding of the electoral system”.

The report states that especially confusing was the regional vote, which the public believed was a second preference vote. Survey data indicated that a significant proportion of people did not understand how seats would be distributed within the Scottish Parliament.

I now want to tell you briefly about my experience. I was asked by the noble Lord, Lord McConnell, when he was First Minister, whether I would help to lead the Labour campaign in the Lothian region. I agreed to do that. He said: “George, let's put you on the list”. I put my name into the hat and we had a ballot among Labour members in Lothian and, lo and behold, I came top of the list, so I was number one, on the understanding that never before had any Labour member been elected for Lothian. I told my wife that there was no way I would be elected. I told the Chief Whip here, because I was a Member of this House, “Don't worry, I will be here every day because there is no way I will be elected”.

I campaigned for the constituency members of the marginal seats to ensure that I was not elected. Imagine that. You are a candidate and you campaign for the constituencies just to ensure that you do not get elected. I did all my campaign work in two marginal seats: Central Edinburgh and Linlithgow, which we held. Unfortunately, we lost two seats that we thought were safe. I thought, “That doesn’t matter, the Greens always get two in Edinburgh, there is still no way that I will be elected”. However, the Greens did not do so well in that election. I was at the count walking up and down. The husband of Sheila Gilmore, who is now Member of Parliament for East Edinburgh, Brian Gilmore, who is head of the statistics department at Edinburgh University, came up to me and said, “George you’re going to get elected”. I said, “No, no, I’ve told my wife. I’ve told the Chief Whip”. Brian is the best statistician I know. I phoned Liz and said “There is a chance that I may be elected”. She said, “What?” I said, “I’ll phone you back later”. An hour later, she had had the chance to adjust to all that, and I left Steve Bassam until the following week. I was elected because of the system. I had not campaigned for myself. I had spent not one penny on the election. I produced no election leaflets whatever. I held no meetings at all for that election. It was astonishing, but there I was, a Member of the Scottish Parliament.

[Lord Steel of Aikwood]

That was your mistake: if you had done, you might not have got elected.

[Lord Foulkes of Cumnock]

I treat the noble Lord, Lord Steel, as a friend of mine; in fact, he was at the party as well. He will not be coming to my 80th, that is for sure—no, that is a very good point.

It illustrates the absurdity of it all. When I was a Member of Parliament for Carrick, Cumnock and Doon Valley, which we considered a relatively safe seat, I had meetings all over the place. I produced literature and spent almost the limit to make sure that I got elected. In 1997, I ended up with the largest majority in Scotland as a result. We worked hard to get elected. It seems absurd, having worked hard year in, year out to get elected as a Member of Parliament in that constituency from 1979 to 2005, I just floated in easily to the Scottish Parliament. It is a strange system.

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[Lord Foulkes of Cumnock]

That anticipates another point. Whoever was the architect—I think that it was Henry McLeish and others of his ilk who said, “This system will never produce an overall majority for any party. Be reassured. Don’t you worry”. Look what we have—less than 45 per cent of the people who voted in that election voted for the SNP, yet it has a relatively substantial majority in the Scottish Parliament. It does not work. When I asked one of the other people, who I will not name, and who I have just remembered was also one of the architects, why this came about, he said, “Because the system is weighted in favour of the rural areas”. That was deliberate—not to ensure that nobody got an overall majority but that Labour did not get an overall majority. It was not done for party political advantage.

Like my noble friend Lord Maxton, I argued for first past the post. I am still arguing for it and will fight to keep it for the House of Commons. I know that some Members opposite will join in that fight. Let us keep it there; I wanted to have it for the Scottish Parliament, but we did not get that. I would like to have a review to go to first past the post but, to use a phrase that was used earlier in another context, the genie is out of the bottle, and I do not think that we can go back. I agree with the noble Lord, Lord Stephen, that if we are to have a proportional system and we have single transferable voting for local government, there is a logical case to have the same voting system for the Scottish Parliament and local government. It would simplify things. I am not advocating this but simply saying that there is a logical argument in favour of it that could be put to the commission that will be set up.

I would also argue that one dreadful thing that has happened is the way in which we now have completely different boundaries for Westminster, Holyrood and local government. It is confusing everyone. In Wales they hope that with the revision of Westminster boundaries they will get them to coincide again. I hope that something will be done in Scotland to get the boundaries to coincide again. Let us say that the commission was convinced by the arguments for the single transferable vote. We would then have a simplified electoral system, with two elected levels having the same system. If we could get the boundaries more contiguous, we would make things simpler for the electorate and do a great service.

I look to the Minister when I say that I hope that some consideration will be given to this. A lot of time has passed since the Scottish Parliament was set up. Many people have suggested a review. I had been led to believe in the corridors and the Lobbies that the Government were looking at this and moving in this direction. I hope that they will move relatively quickly, and I hope that the Minister will be as sympathetic as he was in his answers to my previous amendments. I beg to move.

[Lord Steel of Aikwood]

My Lords, unlike the noble Lord, Lord Browne, I will show some gratitude to the noble Lord for his very good party on Saturday night by supporting the amendment that he moved. My serious point is that he was right to say that we were promised, at the time that the Scotland Act passed into law, that there would be a review of the election system after a couple of Parliaments. This has not happened and I hope very much that, whether or not we agree the amendment, there will be such a review.

I would support a review for four brief reasons. First, there is the question that we discussed, and that I will not repeat, about the clashes between regional Members and constituency Members. Despite what my noble and learned friend said earlier in debate, I know for sure that it has been a problem in some areas. The second reason is the one the noble Lord referred to just now. Since the Scotland Act came into being, we have changed the electoral system for local government. People are now familiar with STV, which they were not at that time when my noble friend and others were pressing for it to be adopted in the Scottish Constitutional Convention.

I come to my third reason. I used to be a very strong supporter of first past the post. Partly because I was the only Member of the House of Commons who represented three counties, I felt very strongly about the relationship between a Member and his constituency. However, the way the Boundary Commission has operated in Scotland—not just in creating differences between Scotland and Westminster but within Scotland itself—is extraordinary. Constituencies no longer represent communities but arithmetic. For example, a chunk of Midlothian was thrown into the Borders at the last election, despite the fact that a public inquiry had stated that it should not happen. The old first past the post basis under which one represented a community has gone, because of the obsession with representational arithmetic rather than communities.

The fourth and final reason why I support an inquiry is that we now have in Scotland no fewer than four election systems that we invite the electorate to indulge in. We have first past the post for Westminster, a party list system for the European elections, STV for local elections and a regional list system for the Scottish Parliament. I cannot think of any democracy in the world where there are four different systems for different elections.

[Lord Maxton]

Of course, if the Government that the noble Lord supports have their way, we may well have a fifth system for elections to this place.

[Lord Steel of Aikwood]

The noble Lord must not tempt me to get on to that. Four is more than enough. That is in itself a very good reason why we should have a review of the whole electoral system. It should be objectively done. There is no party political gain to be had by anybody in this, but it is high time we had an independent look at how elections are run in Scotland.

[Baroness Liddell of Coatdyke]

My Lords, I can put on the record now that right from the start of the discussions about the Scottish Parliament, I was opposed to the voting system. It got to a stage where the minute I came into a room, eyes would glaze over. As a consequence, I lost the ability to make my arguments. To some extent, my opposition was based on recognition of the difficulty of having regional list Members and the problems that it would create for individual constituency Members where you had someone who could helicopter into your constituency and cherry pick the issues. It makes it very difficult even if it is a member of your own party who is the regional list Member. It makes it very difficult to run a consistent service as an elected representative. Time after time I was told that I was old-fashioned and that I was being tribal. My heart told me that I wanted first past the post, because that was the way that my party would win; but my head told me that for a new system of government, for devolution, we had to find some other way of doing things—but I was extremely unhappy with AMS. As the Minister knows, that is parallel to the system which operates in New Zealand, where there has just been a referendum and, ironically, they have voted to keep it.

Having said that, I agree with my noble friend about the hotchpotch of systems and the problems caused by non-contiguous constituency boundaries. In a couple of instances, I may have been responsible for that because of decisions that I took as Secretary of State. You do not always get the opportunity to take the decisions that you would want to take. However, I am opposed to the proposal that my noble friend has put forward—not because I am opposed to the idea of a review, but because I think that when you have been comprehensively beaten in an election, you do not turn around and say, “We’ve got to change this”. I accept that the Government of whom I was a member could have done something about a review, and the coalition could have done something about a review before the Scottish Parliament elections. Frankly, however, I think that we have missed the boat. It would be interpreted as the unionist parties saying, “We was robbed”. We have just been saying that we must be absolutely certain that the referendum is fair and transparent and that the decision will be accepted by the majority, which is very important. I think that we have missed the boat.