Parliamentary Voting System and Constituencies Bill

Lord Wallace of Tankerness Excerpts

Monday 14th February 2011 Lords Chamber

[Lord Falconer of Thoroton]

I accept the noble Lord’s implied, or indeed express, criticism. My wording is not good and that is my fault. It would have been much better if the amendment had said: “Party election broadcasts during the referendum period will not be broadcast if they support any particular side in the referendum on the voting system”. It would have been much simpler if I had just said that, and then one would have known where one stood.

On whether the proposition put by the noble Lord in his question would fall foul of my amendment, if the six-week period is within the referendum period, then it would. I would have to check with the Minister because I am not sure whether the six-week period is within the referendum period. However, if we assume that it is within the referendum period, then saying, “We are strong supporters of constitutional change”, implies support, I would have thought. I beg to move.

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

My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, has indicated, this matter has been debated in Committee and on Report, and it is clear that the Government have taken a different view from him. However, I accept that it is helpful for us to be able to have a further exchange on the issue.

The Government believe that the framework that is set out in this Bill and indeed in other legislation is sufficient for this referendum. Perhaps I can establish some common ground. We agree with the principle that party election broadcasts should not be used as referendum campaign broadcasts. However, Section 127 of the Political Parties, Elections and Referendums Act 2000 prevents the main purpose of any broadcast other than a referendum campaign broadcast being to procure or promote an outcome in a referendum, which we believe is sufficient reassurance. In other words, it ensures that a party election broadcast does not become a referendum campaign broadcast. I think there is common ground here and that the mischief which the noble and learned Lord identified—although I would not necessarily accept it—is an incidental part of an election broadcast in which one side or the other is endorsed.

Our view is that there is clear merit in maintaining some flexibility in this area while acknowledging the clear limits already imposed by Section 127. Such flexibility might enable, for example, the inclusion of a brief statement during a party election broadcast that referred to the referendum and to whether the party supported a particular outcome. Although the noble and learned Lord did not say it, I understand from him that he would find nothing wrong with the existence of the referendum being referred to or indeed with an encouragement to vote; it is the endorsement of a particular yes or no position that he seeks to address.

If such a reference was an expression of a party’s wider policy on matters—for example, on political reform—that were of relevance to the elections on 5 May, one might say that precluding mention of that position in a related election broadcast could have an adverse impact on campaigning for a particular party in those elections. To pick up on the point made by my noble friend Lord Phillips of Sudbury, I can confirm that six weeks would be within the relevant campaign period for the referendum. I understood the noble and learned Lord to agree with the proposition that if in that broadcast a party was to support, let us say, constitutional reform—I do not think that my noble friend even specified a particular outcome of the referendum—that would fall foul of the law if his amendment were passed.

I ask the House to consider that to legislate to forbid a party to articulate its legitimate policy position is an important step to take.

[Lord Campbell-Savours]

I have an important question for the Minister as to what happens during the broadcast. He referred to flexibility. He is a Liberal Democrat Minister in the coalition. Will he assure us that the flexibility to which he referred will preclude in a Liberal Democrat broadcast any reference to the fact that more than 50 per cent of the electorate would be required to secure the election of a Member of Parliament? In other words, if there is flexibility, I seek to be assured that it in no way leads to misleading statements being made on the 50 per cent requirement.

[Lord Wallace of Tankerness]

I have two points in response. Speaking as a member of the Administration, I am in no position to offer detailed assurances on the content of a party political broadcast when that party is only one part of the coalition. However, I shall indicate what the dynamic might be in how the broadcasting authorities treat this issue and, indeed, are doing so—it is not hypothetical.

We believe that it is ultimately a matter for the broadcasters to see that the rules in Section 127 on the content of party election broadcasts, together with relevant guidance issued under the Communications Act 2003, are adhered to. That is the Government’s position. I accept that the noble and learned Lord might disagree with it, but we have not yet heard any compelling reason to convince us that that stance is wrong. The proposed approach would in any case still require broadcasters to take a view on whether the proposed content in a broadcast complied with the new rule. Broadcasters would have to make some sort of judgment as to whether the content of a party election broadcast indicated a preference for a particular referendum outcome. Such a judgment might well be in the field of whether a general endorsement of constitutional reform fell within that or whether the content had to be much more specific, endorsing a yes/no position.

As I indicated on Report, the chair of the Broadcasters’ Liaison Group has already written to the political parties, drawn their attention to Section 127 of the PPERA and asked them to contact him if they intend to include any reference to the referendum in a party election broadcast in order to ascertain whether any reference crosses the line into Section 127 territory and could in the group’s view be unlawful. We believe that these lines of communication will clarify how the legislative framework will apply in the context of the combination of the referendum with other polls on 5 May. The framework for regulating party election broadcasts sits under the Communications Act 2003 and within the broadcasters’ guidance. We believe that that, combined with the Section 127 provisions in PPERA 2000, provides the necessary clarity.

That said, the Government acknowledge the important issue that has been raised by the noble and learned Lord in tabling this and other amendments at earlier stages. The PPERA framework for referendum regulation was introduced by the previous Government and, despite the confidence that I have expressed in the legislation, aspects of the framework might need a longer-term refresh. I reassure the noble and learned Lord that the Government will reflect further on these points in the light of the referendum and the experience of the poll on 5 May. In the mean time, I urge the noble and learned Lord to withdraw the amendment.

[Lord Falconer of Thoroton]

I am grateful to the noble and learned Lord for his speech, but there is a fundamental problem with it; he referred to flexibility, but the amendment seeks to establish the principle that in a party political broadcast you should not be able to support an outcome in the AV Bill. The Electoral Commission says that it supports the intention behind the amendment, but goes on to say that it is not sure that it is necessary to achieve the intended outcome because of the main purpose issue in Section 127. Surely it is better that there should be clarity about what is and is not allowed—and what should not be allowed is support for an outcome in a party political broadcast, because that would drive a coach and horses through the expenditure limits. I seek the opinion of the House.

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[Lord Wallace of Tankerness]

My Lords, the amendment of the noble Lord, Lord Rooker, seeks to clarify two points in relation to the amendment in his name carried at Report stage; namely, that if fewer than 40 per cent of the electorate vote in the referendum, the vote shall not be binding. The noble Lord, Lord Rooker, indicated that the amendment was directly consequential on the amendment passed on Report. Paragraph (a) of this amendment defines “electorate” in reference to Clause 2, which sets out who is entitled to vote in the referendum. The noble and learned Lord, Lord Falconer, says that the amendment was unnecessary. We on the other hand think that it is to some degree helpful to clarify what defines the electorate for the purposes of the referendum. It would exclude European Union nationals who can vote in some elections. It obviously includes Peers, who would not be entitled to vote at a Westminster parliamentary election.

However, this is more of a political point, because there is no way of dealing with it otherwise. The noble and learned Lord is absolutely right to say that those who come onto the roll, perhaps as a result of a campaign encouraging people to register, would be included in the electorate, but that account could not be taken of, for example, undergraduates—who, as the noble Lord, Lord Rooker, said, might be registered at two places but can vote only once—and those who have died since the canvass which took place perhaps some five months earlier. Those points are perhaps more of a political, rather than a technical, nature.

[Lord Maxton]

My Lords, I accept the point about people who have registered more than once in separate constituencies, but it is very demanding on their honesty. What checks will be made on whether they have voted more than once in the referendum? If any check is made, what action will be taken against someone who has voted twice?

[Lord Wallace of Tankerness]

My Lords, I cannot indicate what checks are likely to be made. It is obviously easier to check if that happens in the same constituency, but if a person is registered in two far-flung parts of the country, it is not readily obvious as to what check can be made, other than the fact that voting twice is of course illegal. Therefore, if it were somehow proved that that had happened, the person would have to face the consequences set out in the schedule to the Bill.

Paragraphs (b) and (c) of the amendment define 100 per cent turnout as the total number of people entitled to vote in the referendum under Clause 2, and “vote” as “votes counted” under Part 1 of the Bill. As the noble and learned Lord, Lord Falconer of Thoroton, indicated, that means that the turnout figure would not include those who had turned out to vote on the day, but whose votes, for whatever reason, were deemed to be void. That is because paragraph 42 of Schedule 2 to the Bill specifies that void votes should not be counted, albeit they are recorded by the counting officer.

If eligible voters go to the polling station on 5 May and vote, they have in fact turned out, and should be included within the turnout figure, even if their vote is subsequently deemed to be invalid. The noble and learned Lord agreed with that proposition.

The amendment is not ideally worded. It is silent on whether a single independent body should be made responsible for verifying the turnout and whether the 40 per cent figure has been met. It leaves it unclear whether that would be left to the Government or would be a matter for the Electoral Commission. However, despite the drafting issues, it would not be helpful for us to be obstructive, so it will be for Members of the other place to decide whether the amendment and the one that it supports are acceptable.

Perhaps the most important issue raised by the amendment is not what it does but what it does not do. It does not address the problem with the original amendment because it does nothing to change Clause 8(1), which still imposes a legal obligation on the Minister to implement the alternative vote. I fully accept the explanation of the amendment given by the noble Lord, Lord Rooker—that the intention is to make the referendum result non-binding if a 40 per cent turnout is not reached. He is right that it would not be fatal. Nevertheless, it is an important and significant provision. The effect of retaining Clause 8(1) is that the obligation to implement AV will apply even if the turnout is less than 40 per cent.

I am sure that that is not what the noble Lord intended by his amendment. I recognise that this matter should be dealt with before the Bill becomes law. We understand and share the concern that any statutory provision should be technically effective. We are considering the way forward on this issue and will set out our plans when the Bill returns to the other place. It will be for Members there to decide tomorrow how to respond when considering your Lordships' amendments. On the basis that the amendment goes some way to clarifying the position in the light of the earlier amendment, it is not our intention to resist it.

[Lord Rooker]

I am extremely grateful for that response from the Minister. I do not mind whether or not spoiled votes are counted as long as we have clarity and rules.

On Clause 8(1), the “may/must issue”, I fully accept that if this stayed in the Bill according to the wish of the other place, the Government would have to make available, in the exchange of amendments, the discretionary part for the constraint—it is not a threshold—to be made to work. That is all that I seek to do. If it comes down to having an argument about whether or not someone has died in order to determine whether we should have a major change to our constitution, we will have a serious problem on our hands. I am extremely grateful for the way that the Minister has dealt with the amendment. I beg to move.

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[Lord Pannick]

My Lords, the amendment is entirely consequential on the amendment to Clause 11 that was carried on Report last Wednesday. It is a tidying-up amendment. I hope that it is entirely uncontroversial.

[Lord Wallace of Tankerness]

As the noble Lord, Lord Pannick, indicated, this is a consequential tidying-up amendment following the amendment that was passed last week. We had a good debate on the issues. The House made its decision and we share the concern that any statutory provision should be technically effective. The Government are considering the way forward on this issue. We will set out our plans when the Bill returns to the other place tomorrow and your Lordships' amendments are considered. On that basis, the Government do not object to the amendment.

[Lord Pannick]

My Lords, I beg to move.

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[Lord Brooke of Sutton Mandeville]

My Lords, the amendment responds to the indication given on Report by the noble and learned Lord, Lord Wallace, that an accommodation could be achieved on the treatment of the City of London. Noble Lords who followed the exchanges on the City of London, in Committee and on Report, will know that the point at issue is the inclusion of the whole of the City of London in one parliamentary constituency. This requirement of current legislation is noticeably absent from the Bill. My earlier amendment sought to deal with the issue by requiring the whole City to be included in one constituency so far as practicable. A qualification was included to avoid an absolute obligation that might have collided with the allocation method enshrined in the Bill. I also related the requirement to the City being seen as a “special authority” to emphasise its individuality. The noble and learned Lord the Minister acknowledged that individuality in his response on Report, and I am wholly content not to include that reference in the amendment which I have now tabled in agreement with the Minister.

I shall briefly explain the effect of the amendment. It adds a reference to the City of London as a whole into the interpretation of “local government boundaries” in rule 11 of Schedule 2, which is inserted by Clause 11 of the Bill. That, in turn, makes the City of London as an entity a factor for the Boundary Commission to take into account in any future review. Unlike a number of amendments with which your Lordships’ House has been concerned, this is about keeping a small area with particular attributes but few parliamentary electors together in what will inevitably be a much larger single parliamentary constituency. That is why reference in the amendment to the City of London as a whole but not to its sub-divisions, such as wards, is so relevant.

One point not covered in the amendment is the inclusion of a reference to the City of London in the name of the parliamentary constituency. Although I appreciate that the question is ultimately a matter for the Boundary Commission, it is, I think, in order for me to invite the Minister to express a view on the appropriateness of such a reference in any future constituency which includes the City.

Finally, it would be remiss of me not to record my gratitude to all the Members of your Lordships’ House across the Chamber who have actively supported this case. In particular, I thank my noble friend Lord Jenkin, who has supported me throughout, the noble Baroness, Lady Hayter, who earlier tabled her own amendment, and finally my noble friend Lord Newby, who also added his name to my original amendment. I beg to move.

[Lord Wallace of Tankerness]

My Lords, as my noble friend Lord Brooke of Sutton Mandeville has explained, the amendment adds the boundaries of the City of London to the local authority boundaries which the Boundary Commission for England may take into account when drawing up constituencies. I thank my noble friend for his amendment and for the interest which he and the other noble Lords and the noble Baroness, together with others, have shown in this matter, and for their persuasiveness in pressing their argument. I believe that his proposed wording provides the best way of including the boundaries of the City in the commission’s considerations, and the Government are content to accept the amendment.

My noble friend raised the question of the name of the constituency and indicated that it is of course a matter for the Boundary Commission to decide. I see a very good argument for including the City by name in any constituency that it falls within, and no doubt those who feel strongly about the matter will be able to make representations to that effect to the commission as part of the review process. Therefore, I am pleased to be able to support my noble friend’s amendment.

Amendment 4 agreed.

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[Lord Falconer of Thoroton]

My Lords, we support the amendment and we supported it previously. The noble Lord invited our appreciation of the amendment. I expressly appreciate the amendment for its drafting and also its mover who has spent a lifetime supporting participation of this sort. He thoroughly deserves to get his amendment.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Phillips for the amendment and I join in the general approbation of it. For all the difficulties that we have had during parts of this Bill, a common theme in all parts of the Chamber has been the importance of participation in the referendum process. As my noble friend indicated, this paragraph of the schedule does that anyway but he has highlighted the way in which it can be done even better. I am grateful to my noble friend for the constructive discussions we have had on this and the result of those is that the Government agree that the proposal adds useful clarification to the Bill, particularly by emphasising the importance of co-ordination and co-operation. I am pleased to urge the House to accept my noble friend’s amendment.

[Lord Phillips of Sudbury]

I am grateful to my noble friend.