Parliamentary Voting System and Constituencies Bill

Lord Wallace of Tankerness Excerpts

Wednesday 12th January 2011 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I think that we could legitimately ask why, in amendment after amendment from the Opposition, such efforts have been made to ensure that the next general election is fought on boundaries based on such an outdated electoral register. Perish the thought that those efforts are motivated in any way by thoughts of party-political advantage—I would not suggest that of the noble and learned Lord. Amendment after amendment has been designed to frustrate our attempts to ensure that the next general election is fought on boundaries that are determined by an electoral register that is far more up to date—by up to 10 years more—than the electoral register that would be used if the opposition amendments were agreed to.

Let me give the noble and learned Lord some reassurance. Whereas his proposals would mean that the 2020 general election would be fought on boundaries based on an electoral register for which the relevant compilation date would, if we allow one year, be 2011—I see the noble and learned Lord, Lord Falconer, nodding that that is his position—the Government’s position, and the position in the Bill, is that the relevant qualifying date for the electoral register that will be used for determining boundaries for the 2020 election will be December 2015. That will allow even more opportunity for the registration of young people, people in the private rented sector and people from black and minority-ethnic communities. In fact, we are going further than would be possible under the amendments that the Opposition have moved today.

[Baroness Thornton]

Is the Minister saying that the 3.5 million people who are not on the register will need to wait for five or six years? Whether or not they are allowed to register, the fact is that those people are not currently on the register. Does he think that it is acceptable to make those people wait for five or six years before they can participate in our democracy? What is he saying?

[Lord Wallace of Tankerness]

I am beginning to wonder whether the noble Baroness understands what electoral registration is about. No one is being denied the opportunity to participate in our democracy by registering. The noble Baroness has suggested that, somehow or other, the Bill will disfranchise people. If people register to vote, they will have the opportunity to vote—although whether or not they in fact vote is a matter for them. I think that there is common ground on both sides of the Committee that we ought to encourage registration.

The proposal that has been made by the noble Baroness’s party is that we should use a relevant qualifying date of 2011, which would mean that the 2015 election boundaries would be fought on data dating back to 2000. I am indicating that we can go better than that. Rather than require that the 2020 election be based on data from December 2011, the Bill will mean that we will use data from December 2015. I very much hope that, during that period, we will have made the kinds of steps forward that have been called for from all sides.

[Lord Foulkes of Cumnock]

I am getting slightly confused. No one is suggesting doing away with rolling registration. Therefore, at any time a person can get on the register and it can be as up to date as the people coming in. We are saying that there should be a big effort to get people on to the rolling register, so all these things about 2011 for 2020 are a load of nonsense.

[Lord Wallace of Tankerness]

That just confirms that the noble Lord does not actually understand what this is about. No one is disputing the importance of the rolling register and of getting people on the register to vote. The point of these amendments and of this part of the Bill is the relevant date by which the Boundary Commission has to have regard when determining what the size of constituencies will be. That does not detract in any way from trying to increase the amount of registration, so when it comes to—

[Lord Foulkes of Cumnock]

My Lords—

[Lord Wallace of Tankerness]

No, I think I have been very patient. I have been remarkably patient.

[A noble Lord]

On a point of order, Mr Speaker—

[Lord Campbell-Savours]

Well, there is no Speaker here. We are not arguing any case that would prevent any member of the public registering to vote prior to the 2015 general election. Nothing that we are arguing in any way interferes with that, so why does the noble and learned Lord keep suggesting that we are?

[Lord Wallace of Tankerness]

I have not suggested that. If that was the impression that the noble Lord got, I have to correct him. I have not suggested that anyone is standing in the way of having people registered for the 2015 election. With respect, I have not yet heard anything—

[Lord Foulkes of Cumnock]

I am trying to be helpful. When I raised this on Monday, the Minister said that it was helpful. Would it not be much easier to separate registration from the decision of who we should take account of on the boundary? I suggest in Amendment 89C, which we are going to consider eventually, that we should take account of those people who are eligible to vote. We know the figures for that and if we take account of them, it separates it from the question of those who are registered to vote.

[Lord Wallace of Tankerness]

We will come to Amendment 89C but there is a relevant point that the noble Lord, Lord Boateng, made in moving this amendment. He conceded that, for the reasons that I have already given, it was not likely to be accepted but he still made a pertinent point about addressing the underregistration of people from black and minority ethnic communities. That is a pertinent point which we wish to address; I give him that wholehearted assurance.

To take on board the question of the data matching, I found that the noble and learned Lord, Lord Falconer of Thoroton, dismissed that. We have not actually heard much that is constructive coming from the Opposition Benches about what they would do after they had 13 years in government to do something. If there is a deficit at the moment, it is not the responsibility of this Administration. I suspect that those who are protesting so much have much on their conscience to protest about, because they did precious little during that period to try to make sure that the deficit has been made up. What we have done, in a short period, is to try to identify some measures—practical measures.

I do not believe, as the noble Lord, Lord Lester, said, that putting it into statute is necessarily a panacea. I believe that there is practical action on data matching. What we will be doing, if I can make it clear in answering some of the points made by the noble Lord, Lord Maxton, is comparing the electoral register with other public databases—I think that I made it clear in the past that they were public databases not, as he was suggesting in his inquiry, private databases—to find people missing from the electoral register, to see how effective that is in boosting its completeness. Based on these trials, we will decide whether to roll that out more widely.

The noble Lord asked about GP records. We are looking into that, although it will be accepted that there are sensitivities around health records. On private records, I have indicated that that is a matter for the public sector although, as other noble Lords have mentioned in this debate, we want to engage the voluntary sector in trying to boost registration. It may well be that engaging the voluntary sector in that way will give us access to other records as well. We will be using match data to identify people and invite them to register. Ultimately, however, it is up to the individuals themselves whether they register but that is what we will be aiming to do. In addition to that, a series of events is planned over the next few months, as part of the introduction of individual registration, where we will consider with stakeholders what further steps can be taken to engage with underrepresented groups.

The noble Lord, Lord Boateng, asked specifically about Operation Black Vote. I am advised that we are talking to groups representing the black and minority ethnic communities as part of the move to individual registration, including Operation Black Vote. He asked if there would be an open door, and I can confirm that the Government will be happy to consider ideas regarding who we should talk to among the black and minority ethnic communities in order to improve registration. I am not suggesting that we have a monopoly of wisdom on this. We are certainly open to the idea. The noble Baroness, Lady Thornton, and my noble friend Lord Lester indicated that there was a role to be played here by the Equality and Human Rights Commission. It is not exclusive, as has been suggested by some who are misinterpreting what my noble friend had to say.

The noble Lord, Lord Foulkes, mentioned broadcasting. At the most recent election, the Electoral Commission used broadcasting to try to get across in different languages to different minority groups. I see no reason why that should not be pursued. There is a variety of ways in which we are trying to do this.

The noble Lord, Lord Boateng, said that determination was needed to do this. I assure him that we are determined to try to address this problem. I believe that it can be done with the sort of practical measures that I have outlined and by there being a willingness and an openness to hear from others who have positive suggestions—indeed, from young people, as the noble Lord, Lord Rooker, expressed earlier. That is more practical than anything that we have heard from noble Lords opposite, with the exception of national identity cards, which this Parliament has debated and rejected.

I say that we can always do more, and this Government intend to do more. That is not to say, though, that a boundary review, which will prevent constituencies being even more out of date than they are at present and votes being more unequal than they are now, should not take place. I therefore urge the noble Lord to withdraw his amendment.

[Lord Boateng]

My Lords, my fear that my “ZZZ” amendment might have induced torpor in the Minister was clearly quite misplaced; his response was more triple X than triple Z. Nevertheless, it was welcome in its passion, a passion that I think we all share on this issue. I return to the point made with force by the noble Lord, Lord Lester, that we all ought to be able to share in the ends—to enhance registration and improve the effectiveness and completeness of the register—even though we may disagree about the means. I am seeking, and I am grateful to all noble Lords who have contributed to this debate, to find some consensus on the means by which we may proceed, to ensure that the register is complete and that it is effective for the purposes that it has to fulfil if the reforms proposed in the legislation are to achieve their ends, which are to enhance our democracy.

I have listened carefully to what the Minister has said. I welcome the fact that he is focused very much on practical action. That is necessary and will make a difference. I welcome the fact that he has said that his door is open; I take that as an invitation to me to see him, together with representatives of Operation Black Vote, which, as Members on all sides of the House know, is an entirely non-partisan body that has been consulted widely by Government, in the past and currently, on these issues. I thank him for that and will take him up on it before we complete our consideration of the Bill, so that he might seek a way of incorporating the concerns that have been raised in the course of this debate into the delivery of the reforms that the Bill is meant to bring about.

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[Lord Falconer of Thoroton]

The amendment would mean that you would get the constituency boundary changes only if the AV vote was yes. I do not support that, but it is an inevitable consequence of the loose language in which the coalition puts this. On 20 December, the noble and learned Lord, Lord Wallace, said:

“Indeed, as my noble friend Lord McNally has said on a number of occasions, this Bill is about fair votes and fair boundaries. It shows that the two are, in fact, linked. It shows how the two will be linked because it will shape the way in which the other place will be elected in 2015”.—[Official Report, 20/12/10; col. 882.]

My understanding of this Bill is that, if the AV vote is no, you still get your constituency boundary changes. Am I wrong? Please confirm that. If I am right, why did the Minister say that on 20 December?

[Lord Wallace of Tankerness]

Because we are going to win the referendum.

I thank the noble Lord, Lord Campbell-Savours, for his amendment. I particularly thank all noble Lords opposite who have shown such concern for the interests of the Liberal Democrats and the Conservative Party. It has been very touching. On behalf of the Liberal Democrats and my Conservative colleagues, let me say how appreciated it is.

When we eventually got around to it, the motive behind this amendment was that it got us back to the supplementary vote, which was the product of what was, I am sure, a stimulating dinner party in 1989. To be fair to the noble Lord, he has persisted in this throughout these debates.

The amendment would provide that the first boundary review, which would create fewer and more equalised constituencies, would not have effect until the referendum had taken place and only then if the electorate had voted yes. As Members of the Committee will be aware, there are differences on these Benches on the merits of the alternative vote system and first past the post. We have made no secret of that. However, both parties in the coalition are agreed that the public should choose which system we use and should do so in a referendum.

Linking the boundary changes to the referendum would effectively mean asking more than that, as the noble Lord, Lord Campbell-Savours, said. If we change the Bill in the way proposed by the noble Lord, we effectively make a vote against the alternative vote a vote against the boundary changes, too. He described that as a way of incentivising the Conservatives to support the alternative vote. If the referendum result were to be no, it would prevent the modest and sensible reduction in the number of seats, for which the Bill provides, from taking effect. The amendment would see the existing constituency map, with its inequalities in electorate size based on data from, as far as England is concerned, 10 years ago, continue until those data were even older.

As a democrat, I would be bitterly disappointed if the people voted no in a referendum on the voting system, but I would accept that that was the vote expressed by the people. It would be wrong to use that as an excuse to break off an agreement.

[Lord Tyler]

I wonder if my noble friend has noticed that for hours in this Chamber we have been told that the whole Bill is a political carve-up to enhance the potential support for both coalition parties, yet for the past half hour or so, with commendable and encouraging concern for our political support, we have been told that it is nothing of the sort and that the proposals in the Bill will have a neutral effect on the Conservative Party and Labour Party in the future and will damage the prospects of the Liberal Democrats. Will Members opposite withdraw all their accusations of gerrymandering that we have suffered for hours and hours in the Chamber, not just today but on many previous occasions?

[Lord Wallace of Tankerness]

I had reflected on that. I thought that it was somewhat ironic that, having been lambasted, as my noble friend said, for allegedly bringing forward legislation of a partisan nature, we were accused of having partisan advantage as a basic motivation for supporting the amendment of the noble Lord, Lord Campbell-Savours. That was a perverse argument.

[Lord Soley]

The noble Lord, Lord Tyler, is wrong. What was said is that the Liberal Democrat party has campaigned for years for a different voting system in the belief that it would increase its majority. The alternative vote system is not a full system but would improve its position. Similarly, the Conservative position, as has been indicated in a number of statements over the years by the Conservative Party, is that 600 seats instead of the current number would increase the proportion of its MPs. Both parties have stated that these systems are to their advantage.

[Lord Wallace of Tankerness]

I am sorry if I got in the way of a dialogue between the noble Lord, Lord Soley, and my noble friend Lord Tyler. The noble Lord said that we Liberal Democrats put this forward to increase our majority—if only we had a majority to increase. I doubt that the amendment would achieve in the long term what the noble Lord, Lord Campbell-Savours, intends, because it would have an impact only on the first boundary review. Irrespective of the outcome of the referendum, the outcome of the second boundary review, to be held on the same rules with 600 Members of Parliament, would be implemented. It would only mean a stay of execution, if that is how he wishes to put it.

I have indicated, as have noble Lords opposite, that this agreement was reached by the parties. It allows the people to have their say on which voting system they will use. It will also allow the election that takes place in May 2015 to be held on the basis of boundaries that are far more equal than was the case at the last election or would be the case if we did not pass the Bill. In these circumstances, I ask the noble Lord to withdraw the amendment.

[Lord Campbell-Savours]

To explain, it is the second review that worries me. The noble and learned Lord, Lord Wallace of Tankerness, looks on it favourably. The second review will be under a system of individual registration. That will be extremely damaging to the work historically done by the Boundary Commission. As my noble and learned friend Lord Falconer of Thoroton mentioned, there will be huge variations in registration levels in the various authorities throughout the United Kingdom because of problems in securing reasonable returns under individual registration arrangements by local authorities. To reply to the noble Lord, Lord Tyler, on this issue of gerrymandering, I have never accused the Government of gerrymandering.

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[Lord Lipsey]

Perhaps noble Lords may take this as a sign to take their tea break—at this time of night, they might require something a bit stronger—as Amendment 58ZA is really a probing amendment. The amendment seeks to probe what to me is a puzzle.

If the Boundary Commission makes proposals for a change to the draft order in council, would it not be right to say that the Minister “must”, rather than “may”, accept the Boundary Commission’s proposals? In all our efforts on the Bill, one of the great things that we are trying to protect is the independence of the Boundary Commission. However, the Bill is drafted in a way that suggests that Ministers would have the discretion—the word used is “may”—on whether to accept the Boundary Commission’s recommended modifications. I suspect that the word “may” is used by accident, but if its use is deliberate it is disgraceful.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Lipsey, for Amendment 58ZA. When I first read the amendment, I immediately identified what he was driving at and had some considerable sympathy for it. He is absolutely right that, if the Government could simply disregard a modification that the Boundary Commission suggested, that would not be acceptable.

I am afraid that the issue comes down to textual analysis. Amendment 58ZA proceeds on the assumption that Clause 10(6)(5B) confers a separate discretionary power whereby the Government may decide whether to include a modification that has been requested by a boundary commission. However, we do not consider that to be the effect of new subsection (5B) of the Parliamentary Constituencies Act 1986. Rather, new subsection (5B) explains how the modifications referred to in new subsection (5A)—the two subsections need to be read together—can come to be included in the order in council. On that basis, the inclusion of requested modifications is part and parcel of the requirement to give effect to the Boundary Commission’s recommendation, as provided for in new subsection (5A). Therefore, the Bill requires the Government to include such modifications in the order in council.

I should perhaps also point out that the noble Lord’s amendment might make it less clear that the Government are not permitted to make any modifications other than those requested by the boundary commissions.

I hope that the noble Lord is satisfied with that answer. I readily acknowledge that the matter is textual. After reading the subsection several times, I was persuaded that new subsections (5A) and (5B) need to be taken together and that there is nothing malign intended. No doubt the noble Lord will want to read what I have said, but I am certainly prepared to consider—although I am already satisfied with the wording, which we have discussed through—satisfying myself further on the matter. However, on that basis, I ask the noble Lord to reflect on what I have said and to withdraw the amendment.

[Lord Falconer of Thoroton]

I completely understand the point that the noble and learned Lord, Lord Wallace of Tankerness, has made that the draft Order in Council can be modified only if the Boundary Commission requests a modification. However, is the implementation of the modification optional if such a request is made? The wording of the Bill appears to suggest that the Minister has discretion on whether to accept any modifications that have been requested.

[Lord Wallace of Tankerness]

With respect, I think that the point that the noble Lord, Lord Lipsey, made was whether Ministers have such discretion. It is certainly my understanding that the power is not intended to be discretionary. The intention is that, if a boundary commission wants a modification, Ministers will be obliged to incorporate that modification in laying the Order in Council. The two new subsections (5A) and (5B) need to be taken together. New subsection (5B) describes the circumstances in which a modification would be made.

As I have indicated to the noble Lord, Lord Lipsey, and indeed to the noble and learned Lord, Lord Falconer of Thoroton, I will read this again. I have done so already and I am satisfied that there is no malign intent that would oblige Ministers to follow a request from one of the Boundary Commissions, but I am willing to give it further reconsideration and others will no doubt look at it and read it.

[Lord Howarth of Newport]

I am looking at the Explanatory Notes to Clause 10 of the Bill. It seems to be very clear that discretion is left to the Secretary of State in laying,

“before Parliament a draft of an Order in Council for giving effect to the recommendations in the boundary reports”,

to accept or not to accept the modifications that the Boundary Commission may wish.

[Lord Wallace of Tankerness]

That is perhaps a good reason for us to examine it again. I have indicated what the intention is and I am grateful to the noble Lord, Lord Lipsey, for flagging this up. It will give us an opportunity to be satisfied that the wording reflects the intention.

[Lord Lipsey]

I am most grateful to the noble and learned Lord and if I gave any impression that I seriously thought that there was an attempt to get away with anything, I withdraw that unconditionally. I accept that it is, as he says, a textual matter. In fact, he has kindly promised to reread the clause and check that he is satisfied with it, as will I. Actually, I have found it more effective than taking two Sleep-eze to get off at night—so, after tonight’s debate may be a very good time for him to apply his mind to it. After I read his remarks, I will return to it on Report if I want to. In the mean time, I thank him for considering this so carefully and beg leave to withdraw the amendment.

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[Lord Wallace of Tankerness]

My Lords, if I speak for long enough I might get a full answer to the second of the noble and learned Lord’s questions. With regard to his initial question about the interim reviews and the repealing of subsection (3), the reason for this is that the existing legislation reflects the fact that the constituencies may require adjustment during what is, at present, the long period that elapses between full reviews. However, it is believed that if the full reviews are to take place every five years, there may not be a need—certainly there will scarcely be any time—to conduct an interim review. Clause 13, for completeness, makes transitional provisions for the outcome of the interim reviews, which are currently under way in Wales.

With regard to the modifications, the clause allows modifications to the Boundary Commission’s recommendations only in an Order in Council that gives effect to those recommendations at the request of one of the four commissions and with its reasons set out in writing. This was tabled as an amendment on Report in another place, following an amendment that was tabled in Committee by members of the Political and Constitutional Reform Committee. It was done to get the substance of that committee’s amendment into proper form. I do not necessarily anticipate that it would lead to any significant change to the proposals that were being brought forward. As I indicated, any modifications would require some explanation in writing, which would be at the behest of the Boundary Commission. I regret that I do not have the views of the Political and Constitutional Reform Committee as to why it wishes the original amendment to be brought forward, but my information is that it was in response to that.

If I just keep on talking, I am sure that I will be able to give the noble and learned Lord an even fuller answer to a perfectly legitimate question. As far as we know, the power to make modifications has never been used but has existed since the 1940s. It is envisaged that it may be used to correct an error that comes to light only after the initial report has been made. I hope that that explanation satisfies him.

[Lord Soley]

This is a bad clause. It is not bad simply because of its content but, as has been pointed out on a number of occasions, because it has been drawn up in a way that is designed to meet a short-term political problem and has not been dealt with in the way in which a constitutional reform of this type ought to be dealt with. The Boundary Commission of all things, given its implications for the future of MPs, constituencies and constituents, ought to have been given far more detailed consideration, but the Bill has been brought forward in just a few months following the deal between the two political parties. It is a good example of bad law. It comprises a constitutional change that is underpinned by Boundary Commission reports that were necessarily drawn up in haste. All the things we have heard about the electoral register and the whole electoral registration process indicate the detailed work that should have been done on the Bill in a proper constitutional way either by committee beforehand or through an inquiry. Instead, it has been hastily drawn up and placed before us at short notice.

I have worries about the Electoral Commission and the Boundary Commission being able to complete this task in the necessary detail in the time available. It troubles me that when you rush something like this, you could well get into difficulties with it. I remember the previous time when we tried to change how votes were cast and push things on the Electoral Commission that it was unhappy about. My Government were in power at the time, so I have to accept some responsibility for this. Leaving aside the rights and wrongs of the policy, it resulted in considerable problems on the ground.

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[Lord Wallace of Tankerness]

My Lords, I thought that my luck was too great to answer just two questions from the noble and learned Lord, Lord Falconer, but I will try to keep this short.

Some important issues have been raised. The noble Lord, Lord Campbell-Savours, asked about petitions. As he will be well aware, the Government have not yet published their proposals on parliamentary petitions, so it would be premature to speculate. If, during the consultation period, people submit petitions, the commission would take them into account, as at present. Outside that period, it would be for the Boundary Commission to decide how to respond and whether it was within its statutory duties to do so.

As I think that the noble Lord, Lord Soley, would acknowledge, there is no intention that we should oust judicial review. If a boundary review is delayed past the statutory timetable for any reason—including, for example, because of an attempt to challenge the commission by judicial review—the commission's report would still be valid and its recommendations would still have to be implemented. The courts have in the past shown some reluctance to interfere, and they have made it clear that they would be very slow to interfere with a decision of a Boundary Commission.

I say to the noble Baroness, Lady Liddell of Coatdyke, and to other noble Lords who expressed concern in this stand part debate and earlier, that there is nothing in the Bill or specifically in this clause that is a barrier to trying to take steps to improve the levels of electoral registration. I hope I made it clear that initiatives are being taken. I think there is common ground across the Committee that it is an important thing to do. I share the noble Baroness’s aspiration that we improve the levels, particularly among those groups that we debated earlier that are at present underrepresented on the electoral roll. This clause does not inhibit that, and I repeat the commitment I made earlier for this Government that we intend to take initiatives to try and improve that.

Reflecting on what my noble friend Lord King said, I conclude by indicating that there is an issue, because the longer the period between boundary reviews, the greater the divergence from the quota established at the start of a Boundary Commission’s review. I gave figures in an earlier debate. What we propose to do is set out in this clause and is to have a boundary review whose outcome is to be in place by the time of 2015 election and thereafter to conduct boundary reviews on a five-yearly basis, which will allow for boundaries to be more reflective of a recent state of affairs with regard to the election. With these remarks, I beg that the clause stand part of the Bill.

Clause 10 agreed.