Parliamentary Constituencies Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 27th July 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

[Inaudible]—proposal for the implementation of reports of Boundary Commissions with what has been described as automaticity, without the current parliamentary approval and, therefore, it is said, without the possibility of political influence or interference at that stage. In future, unless Parliament changes primary legislation at the time of a report’s publication, it will cease to have a role. It is said we are drawing on the experience of successful examples elsewhere, in New Zealand, Canada and Australia.

The consequence of this change must be to move the focus of any risk of political interference to the Boundary Commission, as the final decision will no longer be for Parliament. This means that any risk of interference may move to the commission and the process of appointing it. It is therefore essential that the commission is not only independent but seen to be independent and appointed independently.

As noble Lords know, commissions are chaired by the deputy chairman in each jurisdiction, who has to be a High Court judge. In Scotland the deputy chairman is appointed by the head of the judiciary, the Lord President, and in Northern Ireland by the head of the judiciary there, the Lord Chief Justice of Northern Ireland. However, that is not the position in England and Wales. The appointment is not by the head of the judiciary, the Lord Chief Justice, but by the Lord Chancellor, a government Minister.

For England and Wales, this anomaly—which pre-dates the change to the position of the Lord Chancellor in 2005—must be changed, in my view, so that the deputy chairman is no longer appointed by a government Minister but, as in Scotland and Northern Ireland, by the head of the judiciary. Although, of course, the Lord Chancellor consults the Lord Chief Justice, in the light of the proposed change brought about by this Bill in effecting automaticity, that is no longer sufficient. That is because it is necessary to ensure that the independence of the judiciary is not undermined by any perception of partisanship or political influence in the appointment. It must be seen to be wholly independent of the political Minister that the Lord Chancellor now is.

At the same time it seems necessary to change the appointment of the two other commissioners. Professor Hazell and Dr Renwick of the Constitution Unit at University College London set out a number of alternatives in their evidence to the House of Commons Committee in June 2020. In agreement with them, I urge that the preference should be the appointment made by an independent committee, including the deputy chairman, as is present practice. That committee should then put forward a single name to the Minister, with a power to reject only if written reasons are given. That has proved a very effective mechanism for the independent appointment of judges.

If the commission’s decisions are, in effect, to be final and binding through automaticity and protected from political interference, the appointment process must be independent and therefore seen to be free of the risk of any perception of political interference and influence.

Parliamentary Constituencies Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Thursday 10th September 2020 Grand Committee

Moved by

[Lord Thomas of Cwmgiedd]

12: After Clause 4, insert the following new Clause—
“The Boundary Commissions: constitution
(1) Schedule 1 to the 1986 Act (the Boundary Commissions) is amended as follows.(2) At the end of paragraph 2 insert “in accordance with paragraph 3A below”.(3) In paragraph 3(a), for “Lord Chancellor” substitute “Lord Chief Justice of England and Wales”.(4) In paragraph 3(c), for “Lord Chancellor” substitute “Lord Chief Justice of England and Wales”.(5) After paragraph 3 insert—“3A The two members of each Commission appointed by the Secretary of State shall each be appointed in accordance with the following process—(a) a selection panel shall be convened by the Secretary of State to select the members of the Commission, which shall comprise—(i) the deputy chairman of the Commission, and(ii) two persons appointed by the Speaker of the House of Commons;(b) the selection panel shall determine the selection process to be applied and apply that process;(c) the selection panel shall select only one person for recommendation for each appointment as a member of the Commission;(d) the selection panel shall submit to the Secretary of State a report stating who has been selected and any other information required by the Secretary of State;(e) the Secretary of State shall on receipt of the report do one of the following—(i) accept the selection,(ii) reject the selection, or(iii) require the panel to reconsider the selection;(f) the power of the Secretary of State to require the selection panel to reconsider a selection is exercisable only on the ground that, in the Secretary of State’s opinion, there is not enough evidence that the person selected is suitable for appointment as a member of the Commission;(g) the power of the Secretary of State to reject a selection is exercisable only on the ground that, in the Secretary of State’s opinion, the person selected is not suitable for appointment as a member of the Commission;(h) the Secretary of State shall give the selection panel reasons in writing for requiring the reconsideration of, or rejecting, any selection.”(6) In paragraph 4, at end insert “, but the term for which each member (other than the chairman) is appointed shall be a non-renewable term.””Member’s explanatory statement
This amendment would ensure that the appointment of members of the Boundary Commissions is made and is seen to be made independently and without the influence or appearance of influence of the Executive, to remove the possibility of political interference in the process of setting the boundaries of Parliamentary constituencies.

[Lord Thomas of Cwmgiedd (CB) [V]]

The background to Amendment 12 is the effect of automaticity in moving the focus to the Boundary Commissions, which will now make the final decisions. This means that any risk of interference or perception of a lack of partiality or other matters will move to the commission and the process of appointing it. The Constitution Committee suggested we should consider what needed to be done to ensure the independence and impartiality of the commission. I am sure that there is complete agreement that the process must be wholly independent and free from the possibility of political inference or, more importantly, any perception of political interference or influence. Decisions must be independent and be seen to be independent and we must safeguard the process from the US problems of gerrymandering.

The amendment seeks to address this issue in three ways, so that the commission is not only independent and impartial but seems to be so. The first way is the appointment of the deputy chairman. Commissions are chaired by deputy chairmen. In each of our four nations the deputy chairman has to be a High Court judge. In Scotland, the deputy chairman is appointed by the head of the judiciary, the Lord President, and in Northern Ireland by the head of judiciary there, the Lord Chief Justice of Northern Ireland.

However, that is not the position in England and Wales. The appointment is not by the head of the judiciary, the Lord Chief Justice, but by the Lord Chancellor, a Government Minister. For England and Wales this anomaly predates the change to the position of the Lord Chancellor in 2005. Until then, he was the head of the judiciary in England and Wales and a judge. Now, not only is he not head of the judiciary, he is no longer a judge but a political Minister.

The Act should therefore now be changed so that the deputy chairman is no longer appointed by a Government Minister but, as in Scotland and Northern Ireland, by the head of the judiciary. Although the Lord Chancellor consults the Lord Chief Justice, that is insufficient in the light of the proposed change brought about by the Bill. That is because it is necessary to ensure that the independence of the judiciary is not undermined by any perception of partisanship in the appointment. It must be seen to be wholly independent of the political Minister which the Lord Chancellor now is. That is a small and, I hope, uncontroversial change.

The second matter relates to the independence of the appointment process of the other members. I put forward a process based on the commission used for the appointment of the senior judiciary—the Judicial Appointments Commission—and the appointment process it has adopted. I have done so as the process of the commission will be far more akin to a judicial process. It must be impartial and independent and seen to be so. It must make its decision on the evidence and the decision is then put into effect by the other branches of government, without any power to change the decision.

Therefore, I suggest, first, that the panel must be independent. I propose in my amendment that the panel should comprise the deputy chairman, as that reflects current practice, and two panel members appointed by the Speaker of the House of Commons. Secondly, the process should be that determined by the panel. If the panel is appointed as suggested, the selection process should be left to it. I am not in favour of automatic disqualifications, as something you decide now can come back and disqualify someone for something they did many years ago. Thirdly, the panel must put forward one name to the Minister, who can object only on a limited basis and must give reasons in writing. That is the practice followed in judicial appointments. This has proved a very effective mechanism for the appointment of judges and exists—I must emphasise—without in any way undermining public confidence in other appointment processes. It is because the appointment process to the Boundary Commission is so similar to the appointment of judges that I put this forward.

The third means that I think should address the question of impartiality and independence is the non-renewable term. It is clear that the members of the commission must be free of any pressure during their work by the prospect of being offered a further term. That is why a number of bodies with special status have fixed terms that are not renewable. Security of tenure, again, is like that given to judges. If they are not liable to reappointment there cannot be subjective pressure or undue influence. In recent years, the trend has been for constitutional watchdogs to be appointed for a single, non-renewable term. A dozen such bodies whose members cannot be reappointed include the following six, which come under the Cabinet Office: the Civil Service Commission, the Commissioner for Public Appointments, the Committee on Standards on Public Life, the House of Lords Appointments Commission, the Advisory Commission on Business Appointments, and the Local Government Ombudsman. It seems to me that if the Cabinet Office believes in the importance of non-renewal terms for these bodies, why would it not apply this logic to the Boundary Commission?

Parliament also believes in the importance of single, non-renewable terms for constitutional watchdogs. The law was changed in 2006 to make the parliamentary ombudsman appointable for seven years, non-renewable; in 2011 to make the Comptroller and Auditor-General appointable for 10 years, non-renewable; and in 2012 to make the Information Commissioner appointable for seven years, non-renewable. Noble Lords will note that I have not recommended the length of the term. That is because I think it remains to be clarified as to what is planned for the activities of the commissioners, bearing in mind, first, that they are likely to be active for only two to three years in the envisaged eight-year cycle and, secondly, the way in which this is done must make the post attractive. Those are the three bones of this amendment. I beg to move.

[Lord Janvrin (CB) [V]]

I will speak briefly in support of the amendment introduced by the noble and learned Lord, Lord Thomas. As was discussed on Tuesday, the Bill introduces automaticity into the implementation of new constituency boundaries following a boundary review. This is a move which I support. This amendment is a further step to ensure that the review process is, and is seen to be, totally impartial. Its aim is to strengthen the independence of the Boundary Commissions themselves by setting out how the appointments of their members can be made independently and without the possibility of political interference. The importance of this was underlined by the Constitution Committee and the arguments in favour of this additional clause have just been well set out by the noble and learned Lord, Lord Thomas.

I simply add that I hope there will be no temptation to argue that this amendment is unnecessary. If the Minister does take that line when he replies, he would be saying in effect that we can trust the present appointments system. I ask him to reflect on this in the context of the level of public trust in politics today, which was touched on in our debate on Tuesday. When winding up the Second Reading debate earlier this year, the Minister said that the Boundary Commissions

“are independent and neutral; they must and will remain so”.—[Official Report, 27/7/20; col. 96.]

This amendment will surely assist the Government in meeting this worthy pledge.

--- Later in debate ---

[Lord True (Con)]

My Lords, perhaps I might be permitted to reply to that. I always try to be gracious and I enjoy the challenge that comes from the noble Baroness. The cut and thrust of politics makes it worth while being a Member of your Lordships’ House, and let us have more of it. I accept what the noble Baroness says: that she was simply referring to paragraph 6 of the report, which I also have before me. I accept that she was not saying that those were specific recommendations by the Constitution Committee. I hope that she and I, and the whole Committee, will agree that we should consider, as we are doing “what safeguards are required”—which was the recommendation—

“to ensure the independence and impartiality of the Boundary Commissions.”

The noble and learned Lord, Lord Thomas, has put forward some proposals. I have argued that the system currently satisfies that objective. But, as I have said, I am open to having further discussions on this matter.

[Lord Thomas of Cwmgiedd (CB) [V]]

I thank all noble Lords who have spoken in favour of the amendment. Perhaps I might briefly reply to the points made by the Minister. First, as to the position in respect of the appointment of a judicial member, this is now plainly anomalous. I simply cannot understand why the Government seek to have this particular aspect of a judge’s deployment within the control and decision of a political Minister. Ministers are not allowed to appoint judges to particular cases. If as a result of a Boundary Commission it was felt that the commission had unduly favoured one party, it would be very damaging to the independence, and the perception of independence, of the judiciary if someone was able to say, “Well, that judge who is the deputy chairman was appointed by a politician.”

Further, there seems to be absolutely no reason why the position of those in England and Wales should not brought in line with those in Scotland and Northern Ireland, bearing in mind the logic of the position: namely, that at the time this was done, the Lord Chancellor was a judge. The Lord Chancellor is no such thing these days; he is a political Minister.

Secondly, on the issue of public appointments, I hope that the Minister will reflect further on the unique nature of the decision-making of the commission. It is not a body whose decision can in effect be challenged; it is an independent decision. Therefore, a special process much more akin to that of the judiciary is required. Appointability should not be the criterion.

On renewable terms, it is clear that the Cabinet Office accepts, as Parliament has accepted, that there are certain positions where it is essential that the term of appointment be non-renewable, to remove pressure. The Minister said—I think I heard him correctly, but one is always cautious when hearing matters over a remote link—that someone is reappointed subject to a satisfactory appraisal, but that really has no place in the process of appointing someone who is meant to be independent and who may be expected to make decisions of which Ministers do not approve.

I therefore would very much like to take up the opportunity of discussing this further with the Minister and others because I believe that we should be able to put this matter into a situation where everyone can have confidence, and the perception of confidence, so that the judgment of the commission is never capable of being called into question on the basis that politicians have been involved in its appointment. On those terms I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Parliamentary Constituencies Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Thursday 8th October 2020 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

11: After Clause 4, insert the following new Clause—
“The Boundary Commissions: constitution
(1) Schedule 1 to the 1986 Act (the Boundary Commissions) is amended as follows.(2) At the end of paragraph 2 insert “in accordance with paragraph 3A below”.(3) In paragraph 3(a), for “Lord Chancellor” substitute “Lord Chief Justice of England and Wales”.(4) In paragraph 3(c), for “Lord Chancellor” substitute “Lord Chief Justice of England and Wales”.(5) After paragraph 3 insert—“3A The two members of each Commission appointed by the Secretary of State shall each be appointed in accordance with the following process— (a) a selection panel shall be convened by the Secretary of State to select the members of the Commission, which shall comprise—(i) the deputy chairman of the Commission, and(ii) two persons appointed by the Speaker of the House of Commons;(b) the selection panel shall determine the selection process to be applied and apply that process;(c) the selection panel shall select only one person for recommendation for each appointment as a member of the Commission;(d) the selection panel shall submit to the Secretary of State a report stating who has been selected and any other information required by the Secretary of State;(e) the Secretary of State shall on receipt of the report do one of the following—(i) accept the selection,(ii) reject the selection, or(iii) require the panel to reconsider the selection;(f) the power of the Secretary of State to require the selection panel to reconsider a selection is exercisable only on the ground that, in the Secretary of State’s opinion, there is not enough evidence that the person selected is suitable for appointment as a member of the Commission;(g) the power of the Secretary of State to reject a selection is exercisable only on the ground that, in the Secretary of State’s opinion, the person selected is not suitable for appointment as a member of the Commission;(h) the Secretary of State shall give the selection panel reasons in writing for requiring the reconsideration of, or rejecting, any selection.”(6) In paragraph 4, at end insert “, but the term for which each member (other than the chairman) is appointed shall be a non-renewable term.””Member’s explanatory statement
This amendment would ensure that the appointment of members of the Boundary Commissions is made and is seen to be made independently and without the influence or appearance of influence of the Executive, to remove the possibility of political interference in the process of setting the boundaries of Parliamentary constituencies.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, Amendment 11 seeks to put in place matters essential to dealing with the important consequences of automaticity. As the decision of the Boundary Commission will become final, and there will be no parliamentary veto, it is essential that the commission is, and is seen to be, entirely independent and so is its appointment processes. Although I have taken up the kind invitation of the Minister to discuss this issue with him, and have done so very cordially on two occasions, the Government have made it clear that they consider that no change is necessary to the current position. I do not believe that this accords with constitutional principle, hence I will seek to take the opinion of the House on the amendment.

In many senses, the new role of the Boundary Commission will become very much nearer to that of a judicial tribunal: sitting in a panel of three, gathering and hearing the evidence and coming to a decision. There will be no appeal from that decision and the other two branches of the state must accept it, just as they accept decisions and judgments of judges. The amendment therefore seeks to ensure that, in a manner akin to the appointment of judges, the appointment of the boundary commissioners is wholly independent and that that independence is guaranteed during their period of office. It seeks to do so in three ways, and I will deal with each in turn.

The first of these is the appointment of the deputy chairman. Under the 1986 Act, the deputy chairman must be a High Court judge. In Scotland and in Northern Ireland, that judge is appointed by the head of the judiciary in those jurisdictions—the Lord President and the Lord Chief Justice of Northern Ireland. In England and Wales, for historic reasons, the appointment is made by the Lord Chancellor. That was all very well with the old-style Lord Chancellor in 1986 when the Act was passed. At that time, he was head of the judiciary of England and Wales. There was, therefore, nothing anomalous in him making that appointment, like he appointed all judges. However, that all changed in 2005 with the reform of the office of Lord Chancellor. The Lord Chancellor ceased to be a judge and head of the judiciary. He became, in essence, a political Minister. All allocation of judicial responsibilities passed to the Lord Chief Justice and appointments were made independently by the Judicial Appointments Commission. For some reason—no doubt oversight—the position was not changed. Although the Lord Chancellor consults the Lord Chief Justice, the time has come when it should now be made clear that the decision is that of the Lord Chief Justice. We should bring this provision into line with constitutional principle. The appointment of a judge who chairs a tribunal which makes the final determination of a series of sensitive issues should be in the hands of the Lord Chief Justice, just as in Scotland and Northern Ireland. There is no reason for England and Wales to be treated differently.

As I understand it, the objection is not grounded in constitutional principle but on the view that, as all judges of the High Court go through a rigorous selection process, they must all be qualified and therefore appointable. It is, therefore, open to a political Minister to select one of them. It could not possibly be disputed that it would be the antithesis of justice if a political Minister could select a judge to try a case, let alone one where there was a party-political consideration. In principle, the position of the Boundary Commission is no different, but there is one further consideration. There is a danger to the independence of the judiciary. A decision of the Boundary Commission is always open to attack on grounds that the chair, although a judge, had been selected by a political Minister because he had shown himself sympathetic to the Government, or had some distant connection with them. We all know how the media can find those connections. We should do all we can to avoid the risk of such an attack, because attacks are so damaging to the rule of law.

I turn to the second part of the amendment on the appointment of the other two commissioners. The Act specifies that the other two members of the Boundary Commission are to be appointed by the Secretary of State, but says nothing about the manner of appointment. As I understand it—I pay tribute to Minister’s officials for their helpful assistance on this—the other two members are appointed under a process set out in the Government’s Code on Public Appointments, promulgated under the Public Appointments Order in Council 2019.

--- Later in debate ---

[Lord True (Con)]

My Lords, the matter before the House is whether the system for England and Wales is sufficient and effective. The contention I put to your Lordships’ House is that it is sufficient and effective. My noble friend will know in any case that the particular circumstances of Northern Ireland have long demanded different approaches.

[Lord Thomas of Cwmgiedd (CB) [V]]

I thank all noble Lords for their contributions to this interesting debate and, in particular, I again thank the Minister for the courtesy he has shown me and for the time that his officials have given to looking at this matter. It seems to me, however, that four points emerge.

First, as the noble Lord, Lord Janvrin, put is so powerfully, we are concerned to ensure that not only is the commission impartial but that it is perceived and seen to be impartial. With the change brought about by automaticity, its role has changed so fundamentally that fundamental changes are needed to ensure that there is perceived impartiality.

Secondly, as to the position of the Lord Chief Justice, it is very difficult to see any argument in principle—the Minister has advanced none—for why it is not brought into line with Scotland and Northern Ireland or, as the noble Lord, Lord Hayward, put it, the position is restored to the appointment of the person by the head of the judiciary. It is important to appreciate the kind of world in which we now live. Certainly, my own experience is that people will dig to find connections, however spurious they may be. Some may remember the connections that were dug up in relation to a decision on which I sat in 2017. No judge should be put in a position where his or her appointment is called into question on the basis that they may have some connection that has made them favourable to the political Minister, particularly a Minister whose own constituency might well be affected by the Boundary Commission review.

Thirdly, it seems to me that this must be put in statutory form. I have made no criticism of the current appointment process in relation to how the commission currently works, but it has fundamentally changed. No assurances—as the noble Lord, Lord Beith, pointed out—can work because assurances do not bind future Governments and this is in a code not made under statute, merely by an Order in Council.

Fourthly, as to the term, there simply is no reason why the tenure cannot move to being akin to other important constitutional watchdog posts. Both the noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Hayward, raised the interesting issue of bringing together the Local Government Boundary Commission in England and Wales and the parliamentary Boundary Commission. When looking at this matter, there is much that can be said in favour of such a move. However, that should in no way affect the basic constitutional principle that the appointment should be for a fixed, non-renewable term so that, in a case, the decisions that they make are not subject to a review by Parliament, or by anyone else, and must be accepted.

In the light of the Government’s position, I therefore wish to test the opinion of the House.

Parliamentary Constituencies Bill

Lord Thomas of Cwmgiedd Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Thursday 15th October 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

I too add my thanks, and thanks on behalf of the Cross-Benchers, to the Minister for the very courteous way in which he has brought this Bill before the House. Being somewhat inexperienced in these matters, I had not appreciated that this was the first occasion on which he had piloted a Bill through the House. I would never have known that from his magnificent performance. I also thank him for the courtesy he showed me in discussing the various provisions of the Bill in which I was interested. We had very good discussions and they were carried out in a spirit of great courtesy and friendship.

Perhaps I may add two further observations. First, the hybrid nature of these proceedings require me to find a substitute in case the connection from Wales, where the broadband provided is not as good as it should be, fails. I had to ask my noble friend Lord Janvrin to be available to deliver my speech. Having on occasion prepared speeches never to deliver them, I know that that is rather a thankless task, so I am most grateful to him. Secondly, I thank all noble Lords who supported the amendments that I and other Cross-Benchers put forward.

I have two concluding observations. First, thanks are due for the way in which the broadcasting team has so skilfully enabled us to carry through these proceedings. Secondly, thanks are due also to the Bill team and the clerks, and in particular the civil servants in the Cabinet Office, who have been so helpful to me in explaining the intricacies of some parts of the appointments process. Sometimes we do not sufficiently recognise the devotion to duty of those who form our Civil Service and are the backbone of the way in which we run ourselves.

I have one final observation. On the day of Report, I was meant to be at a conference in the United States by videolink. When I explained to those at the conference the reasons for my delay, they expressed the hope that some of the procedures in our House and some of those that we have for altering constituency boundaries might be introduced there and that gerrymandering will be brought to an end. I am sure that this Bill will ensure that we will never have any gerrymandering in the UK.

Parliamentary Constituencies Bill

Lord Thomas of Cwmgiedd Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Thursday 26th November 2020 Lords Chamber

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, in moving Motion A, I will also speak to Amendments 2, 6, 7 and 8, on which I shall also beg to move that the House do not insist on those amendments, to which the Commons have disagreed.

Amendments 1 and 2 provide that a boundary review would be carried out every 10 years. The Commons have opted to disagree to these amendments, as eight years is deemed a better balanced and appropriate approach to ensure that parliamentary constituencies are updated sufficiently regularly without disruption to local communities and their representatives.

The Commons disagree to Amendment 6, which proposes a bespoke appointment system for boundary commissioners. The Commons consider that the existing public appointments system and the requirements of Schedule 1 to the Parliamentary Constituencies Act 1986 are sufficient. The public appointment system used to recruit commissioners is robust and has led to the appointment of impartial and effective candidates for decades.

The noble and learned Lord, Lord Thomas of Cwmgiedd, has since tabled an amendment in lieu on this topic, which we will return to in more detail later. However, I wanted to take the opportunity at this point to thank the noble and learned Lord for his constructive and positive approach to engaging with me and officials, and indeed other senior Ministers in the Government, on his amendment throughout the passage of the Bill. It was a model of the approach for a revising Chamber.

We have had many conversations at every stage since this Bill entered the Lords and have thoroughly debated the aspects of the amendment. Even though the Government were unable to accept the noble and learned Lord’s amendments, I hope he has found our exchanges of a good nature and believes that they have resulted in reassurances that made them worth while.

Under Amendment 7, the number of voters in each constituency would be permitted to vary from the UK average by plus or minus 7.5%, which equates to a total tolerance range of 15%. The Commons—the elected House—consider that the existing law on this matter, that of a tolerance range of 10%, is sufficient to ensure equal parliamentary constituency boundaries.

Finally, turning to Lords Amendment 8, this required the Government to make proposals for improving the completeness of electoral registers. The Commons consider that the Government have provided sufficient explanation of action they have taken and are taking to improve the completeness of the electoral registers.

I would like to take this opportunity to pay my respects to the noble Lord, Lord Shutt of Greetland, who so sadly passed away and who tabled the original amendment. It was a privilege to call him my noble friend when he was my Deputy Chief Whip during the years of coalition. In those Quaker values which have so enriched the Liberal party—as it was—and the Liberal Democrats over generations were rooted his principles of straight talking and straight dealing, which we all remember, as we remember his passion for his work and his good humour. He will be sorely missed, particularly by colleagues on the Liberal Democrat Benches.

Since then, the noble Lord, Lord Woolley, who had not previously taken part in the Bill, has tabled a new amendment in lieu. The Government cannot accept this amendment for reasons I have privately explained to the noble Lord, Lord Woolley, but we will no doubt have an opportunity to discuss this further.

As is quite proper, this House asked the Commons to re-examine the detail of this Bill. The House of Commons did so and have returned a Bill to us that is now ready to go to Her Majesty for Royal Assent. The elected Chamber, to which this Bill directly relates, has considered your Lordships’ amendments, and indeed accepted three in relation to the automaticity provisions, and has made its will now known. I therefore urge noble Lords not to insist upon these amendments. I beg to move.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I begin by thanking the Minister for the courtesy and pleasure, if I may say so, of being able to debate the issues that lay behind the original amendment I put forward. I am extremely grateful to him for the courtesy and the trouble to which he has gone, and to his officials, who went beyond their ordinary tasks even in these most difficult times to help me.

I have put forward today an amendment to the original clause that was carried by this House. It is plain that the original clause would have brought about a better appointment system, but the decision has been made by the other place that they do not agree. As regards the amendment I have tabled today, it deals with a narrow and specific point of some constitutional importance. That is why I have put the amendment forward: to amend the clause on a very narrow basis.

However, I wish to make it clear now that I do not intend to press this amendment to a Division because, in the ultimate analysis, it must be for the other place to accept it. However, given the times in which we live, I think it is important to record the matter formally, because it may turn out to be of great importance in the future. As regards the more general points, they are of very considerable relevance at the present time. Although in what I have to say I will be a little critical of the Government, I wish to make it abundantly clear that anything I say in no way criticises the present Secretary of State and Lord Chancellor. This is a more general point, directed at the Government as a whole, now and for the future.

The amendment today, on this narrow point, has the objective of bringing the provisions for the appointment of the deputy chairman of the Boundary Commission into line with the principles of the Constitutional Reform Act 2005, which changed the position of the Lord Chancellor. Noble Lords may recall that the debate on the position of the Lord Chancellor was an extensive one. There were very detailed discussions between the judiciary, at that time led by the noble and learned Lord, Lord Woolf, and the Department for Constitutional Affairs led by the Lord Chancellor— as he then truly was—the noble and learned Lord, Lord Falconer of Thoroton.

A concordat was reached in 2004, which sets out very clear principles that were embodied in the Bill. Those principles were that the deployment and appointments to posts of judges were for the Lord Chief Justice. In respect of some, the Lord Chief Justice was obliged to consult the Lord Chancellor and, in the case of one or two, obtain his concurrence, but the important point is that the decision was that of the Lord Chief Justice. That was because the Lord Chancellor ceased to have any judicial functions and to be head of the judiciary. That is a basic and fundamental constitutional position. The Lord Chief Justice became head of the judiciary and responsible for judicial deployment and the allocation of responsibilities and—importantly—of cases.

The power of appointment to the post of deputy chairman of the Boundary Commission dates from a time when the Lord Chancellor was a judge and head of the judiciary. It is noticeable in the Act that the powers of the Lord Chancellor did not extend to the appointment of the deputy chairman in Scotland or Northern Ireland, because the Lord Chancellor was not head of the judiciary there. Unfortunately, though I think it is hardly surprising, having been involved myself at the time, this provision was overlooked. There were literally hundreds of posts and duties that the Lord Chancellor had accreted over the centuries; that one or two slipped by is not surprising. It is essential to rectify the position now for two reasons: first, to correct an error and, secondly—far more importantly—because the position of the Boundary Commission has changed. It is no longer advisory and its decisions are not subject to any review by Parliament; it decides and Parliament and the Executive Government carry out the decision. The position, as I made clear on the last occasion, is no different to the selection of someone to decide a case. When a judge decides a case, the matter must be enforced by the Executive and adhered to by Parliament. It is quite clear that the Lord Chancellor could not pick a judge to decide a particular case; it would be wrong.

As I could not understand why the Government were opposing this change, I asked three question that I hoped would elucidate the reasons for the decision. I asked if the Lord Chancellor was satisfied that a decision by him as Lord Chancellor, or by any successor, personally to appoint the deputy chairman would be in accordance with legal principles, given that it would be a decision in which the Lord Chancellor—unless he were a peer, which was of course the case prior to 2005—had an actual interest, as the Commission would be determining the boundaries of the Lord Chancellor’s own constituency. The answer I got was that, in making such an appointment, the Lord Chancellor would have to act within established law principles. It seems clear that the Government accept that there is a personal interest in this matter. My second question was whether it would be susceptible to a legal challenge. To that I got the answer that in making such an appointment the Lord Chancellor would have to act within established public law principles. Thirdly, I asked whether it was consistent with the duty placed on the Lord Chancellor to uphold the continued independence of the judiciary. The answer was that is not inconsistent for the Lord Chancellor to have a role in appointments that involve the selection of one member of the judiciary over another. Indeed, because the Lord Chancellor is still ultimately accountable for senior court appointments, it was considered sufficiently important for there to be ministerial accountability to that extent for the judicial appointment system. The same could be said of these appointments.

--- Later in debate ---

[Baroness Scott of Bybrook (Con)]

My Lords, the noble and learned Lord has been speaking for 20 minutes. Could he now wind up, please?

[Lord Thomas of Cwmgiedd (CB) [V]]

I will be a moment longer. I just want to add one final point—and it is this. One can see the damage done when a country such as China criticises Her Majesty’s Government for going back on a treaty. Its comments speak for themselves.

I will conclude by saying that we should be vigilant for the future. The threat to the rule of law is still there, and there are more matters to come. I hope very much that on future occasions this Government will be much more careful about the independence of the judiciary and the rule of law.

[Lord Woolley of Woodford (CB)]

My Lords, I first apologise to the House and my fellow noble Lords for coming to this debate very late in the day. I am new to the Chamber, as many noble Lords will know, and I would argue that I and many others were thrown off track by the pandemic. I apologise, and for that reason I will not be putting my amendment to a vote—because I respect noble Lords and I respect this House.

However, I will not apologise for wanting to ensure that hundreds of thousands of young people are registered to vote and have a voice in our society. I have dedicated most of my adult life to ensuring that young people and those from black, Asian and minority ethnic communities can be part of our society—and without a vote, you do not have a voice.

Before I go into that, I pay tribute to David, Lord Shutt, who, as the Minister said, was our friend. I knew David more than 20 years ago when I was an activist, just starting out with Operation Black Vote. We had no money—and no money any time soon. I was asked by Stephen Pittam, who was the social and racial justice director of the Joseph Rowntree Charitable Trust, to put in an application. So I did, and I was called to a panel, and David Shutt was the chair. I said to him, “You and I know that Martin Luther King had a dream. But he had more than a dream. He had a plan. And step one of that plan was to politically empower African Americans and white poor people to be in a situation where they are not asking for justice and equality but demanding it. And they demand it by voter registration, by having a strong voice”. In typical Yorkshire fashion, David turned around and said—I hope noble Lords will excuse my language—“You’ve convinced me. Give him the bloody money, and good luck”. And we then began a journey, going out the length and breadth of our nation to register our communities to vote.

Our focus has been on black, Asian and minority ethnic communities where, as many noble Lords will know, the deficit is the greatest. We laid bare about 10 years ago the fact that more than 50% of young Africans in London were not registered to vote. The average for black, Asian and minority ethnic communities is 25%-plus, when the average across the board is around 15% to 17%. The problem that we are facing is not that there is a neutrality in some of our communities towards registering to vote and voting—there is antipathy towards it. People say, “Why should I vote when I do not see our institutions, locally or nationally, looking like us? There is no representation. How are they going to speak for me?” Too many say, “Why should I vote when policies are not addressing the deep-seated racial inequalities and disparities that affect our lives—in housing, education, health and many other areas? Why should I bother?” We as activists tell our communities and young people across the board, “That’s precisely why you should vote—because if you don’t have a voice, you can’t change anything”.

Twenty-five years later, from activist to one of your own as a fellow Peer, I come into this place and, once again, I bump into my old friend David, the late Lord Shutt. He says to me, “Young man, great to see you. We’ve got work to do. Your first step is to come and make a presentation to our committee”—which I did. He said, “Give us chapter and verse on how we can turn this round. Give us the tools to empower black, Asian and minority ethnic communities and young people across the board.” I said to him, “Look, it’s a no-brainer. At the very first instance, we should have automatic voter registration. You give them the insurance number and you make sure they’re registered. At least then our challenge to get them to vote is halfway done; we just need to give them the tools to do it.”