Parliamentary Voting System and Constituencies Bill

Lord Wallace of Tankerness Excerpts

Wednesday 16th February 2011 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

That this House do not insist on its Amendments 1 and 8 to which the Commons have disagreed for their Reasons 1A and 8A:

Because the outcome of the referendum should be determined by those who vote in it and should not depend on how many do not vote.

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

My Lords, we have now come to the consideration of the Commons response to your Lordships’ amendments. Perhaps two or three weeks ago, some of us wondered whether, or at least when, we would see this day. However, we considered the Bill in some detail, which we then sent to the other place. This House rightly took a view on important issues in the Bill and made amendments to the Bill, as the House saw fit, which asked the Government and the other place to think again on a number of issues.

The other place considered—it surprised me to see the number—104 amendments from this House. Many of those were of a technical nature, but even some of the technical amendments proposed by the Government were responding to points that had been made in both Houses on, for example, absent voting in the referendum, co-ordinating work, encouraging participation in the poll and adding clarity to some of the boundary provisions. However, a number of those amendments were significant concessions. Last night in the other place, the Government wholly accepted the principle of this House’s points by recognising as an exception the Isle of Wight.

[Noble Lords]

You voted for it.

[Lord Wallace of Tankerness]

I remember the vote very well. This House voted most emphatically, and the Government have listened.

We also listened on the matter of the date of the referendum and incorporated into the Bill the other famous amendment of the noble Lord, Lord Rooker. On public hearings, we agreed with the spirit of the points made and changed the Bill.

The other place having considered our amendments, two issues remain outstanding. The first is a decision by the other place, in relation to Amendment 1 and subsequent Amendment 8 that were successfully moved in this place—the former on Report and the latter at Third Reading—by the noble Lord, Lord Rooker. As the House will recall, the purpose of those amendments was to make the referendum result not binding, or indicative, should the turnout fall below 40 per cent. The Government resisted the noble Lord’s amendment on principle and because of the practical difficulties that it posed, to which I shall return in a moment. Following that debate on Report, the amendment was carried by 219 votes to 218. At Third Reading, the noble Lord, Lord Rooker, tabled Amendment 8, which sought to remedy some of the defects in his earlier amendment. As I made clear in my response then, the Government appreciated the making-good spirit behind the noble Lord’s amendment, which the Government accepted pending consideration of the whole issue in the other place.

That consideration took place last night. Our colleagues in the other place voted to disagree with the noble Lord’s amendment by 317 votes to 247—a majority of 70—which, I hasten to add, was a majority that comprised not only the coalition parties but Members from the SNP, Plaid Cymru, the SDLP and the Green Party. This House must now decide whether to insist on the amendments that it passed or to accept the message from colleagues in the elected Chamber.

Before we do so, let me return to the key arguments. I acknowledge that we will hear, as we did on Report, some strong and persuasive arguments from those who favour thresholds. I understand why many in the House found those arguments compelling, but I believe that, in the context of this Bill, they are misplaced and I shall do my best to explain why. I understand that, when considering this issue previously, many of your Lordships felt that the proposal of the noble Lord, Lord Rooker, was reasonable because, unlike most turnout thresholds, his proposal would not definitively have prevented the referendum from being implemented if the threshold was not met. Indeed, the noble Lord suggested that his proposal did not even amount to a threshold.

However, I cannot believe that this is quite right. The amendments would make the referendum result indicative, should the turnout fall below 40 per cent, rather than rule out implementation altogether—I hope that that is a fair assessment of it. However, that seems to me to set a threshold for interpretation of the result. In every real sense, it is a threshold. As the Minister in the other place said yesterday, it would mean that when people go to the polls on 5 May, they could not say that they would get what they voted for if the majority favoured changing the system. By definition, there would have to be further consideration of the matter. We would be saying that people might get what they vote for, provided that Parliament does not overrule or disregard the vote. That is a somewhat dispiriting message to give to the public.

One of our objectives in this and other constitutional reform legislation is to bring back into the political process members of the public who have lost faith. People have become disengaged not least because they feel that the process lacks the ability to deliver what they want. I want noble Lords to consider that, if we imposed a threshold which left in any sort of doubt the effect of people’s votes cast, people might well lose faith because they would not know what the outcome would be if the people delivered a majority yes vote.

[Lord Elystan-Morgan]

Will the Minister cast his mind back to the 1975 vote on joining the European Economic Community? That was not a mandatory but an indicative vote. There was no protest then of the nature that he describes, so the argument does not follow.

[Lord Wallace of Tankerness]

My Lords, that vote was not on a threshold. In the one case where there was a threshold, in Scotland in 1979—which I accept involved a different kind of threshold and consequences that were different, but it was nevertheless a threshold—those who of us voted yes felt, for at least the ensuing 18 years until there was a yes vote again in 1997, that we had been cheated. I do not think we treat the electorate well by providing for a situation where they may vote yes but that yes vote may not be translated into action.

[Lord Lea of Crondall]

Is the noble and learned Lord aware that the Government are very keen to have thresholds for trade union recognition votes?

[Lord Wallace of Tankerness]

My Lords, I am not sure whether the noble Lord is advocating that kind of threshold.

As I have indicated, one of the most convincing reasons for not having voter turnout thresholds is that, in a referendum which poses a yes/no question, the turnout threshold effectively makes every abstention a no vote. Under the amendments of the noble Lord, Lord Rooker, there might still be this effect because abstentions could mean that a majority yes vote might not be upheld. People might abstain from voting in a referendum for any number of reasons, including apathy and ambivalence. Given that the electorate as defined would also include the dead, by definition such people would not be able to vote. [Laughter.] Noble Lords may laugh, but that is the case. People with double registration, who would be allowed to vote only once, would also be included in the definition of the electorate. Under the amendments of the noble Lord, Lord Rooker, abstentions could mean that a yes vote may not be upheld.

The turnout threshold could incentivise people who favour a no vote to stay at home rather than to vote. The honourable Member Mr Mark Durkan of the SDLP made an interesting speech in the other place last night. He made the case that, in some of the referendums held in the Republic of Ireland, one of the campaign slogans was, “If you do not know, vote no”. He said that if this threshold amendment was to be passed, the message would be, “If you do not know, stay at home”. One of the many admirable things about our political culture in this country is that parties unite to encourage people to vote. Indeed, when my noble friend Lord Phillips of Sudbury proposed an amendment that the various authorities—the Electoral Commission, the counting officers and registration officers—should encourage participation, it was accepted on all sides of the Chamber. The noble and learned Lord, Lord Falconer of Thoroton, subscribed—and no doubt he continues to subscribe—to the principle and the objective that people should be encouraged to turn out to vote. The effect of the amendment could be to encourage people to stay at home or not to bother. “Stay at home on 5 May” is not, I hope, a message that any noble Lord wishes to hear at the hustings in the referendum.

[Lord Howarth of Newport]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, this is the Lords consideration of Commons amendments. There will be time for noble Lords to make their points in the debate. The noble and learned Lord, Lord Wallace, should be allowed to finish his speech.

[Lord Wallace of Tankerness]

My Lords, referendums are used only sparingly in this country but they provide an opportunity for people to have their say on issues of significance. We accept that a change of the voting system is an issue of significance. However, holding a referendum sets a higher hurdle for this constitutional change than is often the case in a number of other constitutional changes. To introduce the even higher hurdle of a threshold would dilute the democratic will of the people and would undermine the simplicity and strength of the referendum result. Insisting on the amendments would not only compromise this principle but would render the legal and practical positions far from straightforward.

I do not want to dwell on the technical difficulties of giving effect to the noble Lord’s proposal. Some of those difficulties were aired on Report and at Third Reading, but others were not, including in particular the question of what kind of process would follow a non-binding yes vote. I do not imply criticism of the noble Lord, Lord Rooker, but, although his original amendment appeared simple and straightforward, the detail is far more complex. When we considered its key provisions for the first time, the amendment was agreed to by the slimmest of margins. The other place has now had two opportunities to consider the issue of a threshold and has decisively rejected it on both occasions.

As I have said, the arguments in favour of a threshold are respectable, but they are wrong—not least because it would undermine the principle that, if the majority of the people vote yes, that is what should be delivered; it should not be “yes but, if” and subject to further political wheeling and dealing or Motions in either House. If the people vote yes on 5 May, a yes vote should be delivered. I beg to move.



Amendment A1 to Motion A

Moved by

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[Lord Falconer of Thoroton]

My Lords, we have had an absolutely scintillating debate on this issue. The issue for the House today is whether we should ask the other place to think again. I believe that that is an interaction of two issues: first, the extent to which we think it has been given adequate consideration already; and secondly, the importance of the issue. As for whether it has been given adequate consideration already, this proposal first emerged as a matter of debate a week ago last Monday, when the noble Lord moved his amendment and it was passed. It went to the other place yesterday. It was one of 104 amendments, of which more than 95 were not debated at all. This amendment was debated for 46 minutes. Of those 46 minutes, more than 30 were taken up by Mr Mark Harper speaking on the issue. I say in parenthesis that there may be times when Mr Mark Harper should emulate his near namesake Harpo Marx rather than Mr Mark Harper himself.

So Mr Mark Harper discussed it for more than 30 minutes, but in the course of his statements he misstated the effect of the amendment on a number of occasions. In relation to a vote in favour with a turnout of under 40 per cent, he said:

“So, even if the public had expressed a clear preference, it would not count”.—[Official Report, Commons, 15/2/11; col. 899.]

That was wrong. The same mistake was made this morning in the Times, which stated in its leader:

“In an attempt to derail the referendum on the alternative vote … system, Labour peers, led by Lord Rooker … and with the connivance of some Conservatives, have defeated the Government on an amendment stipulating that the result of the referendum should only be permitted if at least 40 per cent of the electorate turn out to vote”.

Again, that is wrong.

The position is that if less than 40 per cent of those entitled to turn out do so, it becomes an advisory referendum in exactly the same way. That deals with the critical issue: if there is a derisory turnout in favour of the alternative vote system, is it right that this country should then change its voting system, a voting system for which there would not be a majority in either House of Parliament? The legitimacy of a change of that importance must depend on getting more support for it than a normal change in the law, rather than less.

In my respectful submission to this House, it is pretty plain that this issue has not been properly considered either publicly or in the other place. It is pretty plain that it is a very important issue. It is pretty plain—and I pray in aid the very last speech we heard —that the argument in this House has been comprehensively won by those who support my noble friend Lord Rooker. In those circumstances, we on this side of the House will vote in favour of my noble friend's amendment.

[Lord Wallace of Tankerness]

My Lords, yet again, we have had a useful debate, with some powerful arguments made. I anticipated at the beginning of the debate that strong points would be made, but, nevertheless, we cannot depart from the central point. We are being invited to include in the referendum process a mechanism whereby, if a majority of the people vote yes, it will not necessarily deliver a yes outcome. I take the point made by my noble friend Lord Trimble. Although my noble friend Lord Forsyth was right to say that the 40 per cent rule in the Scottish referendum in 1979 is not the same as that proposed by the noble Lord, Lord Rooker, nevertheless, the point made by my noble friend Lord Trimble still holds. If people turn out and there is a yes vote, serious resentment would then be felt if somehow that was overturned by this House or the other House. At a time when we are trying to restore trust in the political process, to set aside the majority view of the people would be very serious.

The noble Lord, Lord Rooker, said that his amendment would not affect the outcome. I cannot accept that. It would not affect the result, but it could affect the outcome. Clearly, without his amendment, if there is a yes vote, the outcome is that the order would be laid to implement the system of an alternative vote for the next general election. His amendment could result in a different outcome, because if there was less than a 40 per cent turnout, it would not follow that an alternative vote would be used at the next election. Let us not shy away from the fact that his amendment would affect the outcome of the referendum in that important sense.

I take the point made by my noble friend Lord Lawson, who said that I had argued that it was a “stay at home” amendment. The “no” campaign could very well encourage people to stay at home to reduce the turnout. Because 84 per cent of the country will already be entitled to go to the polls on that day for the Scottish Parliament, the National Assembly in Wales, the Northern Ireland Assembly and local government elections in Northern Ireland and all parts of England bar London, if people want to vote no, we want them to turn out to vote no. We should not be giving people an encouragement to think that if they stay at home, they have the equivalent of a no vote, in as much as the yes vote may not bear fruit.

The Bill offers simplicity, clarity and certainty. It honours the promise to the electorate that they will decide how they return their representatives to the other place. They will do that as the result of a referendum without artificial barriers, without further complex, as yet undetermined, procedures and without political wrangling. It means that when they go to the polls on 5 May and want to vote yes, the outcome will not be “yes, maybe” or “yes if”. If they go to the polls to vote yes, it will count. Whatever the issues on the day are, their vote should be heard, listened to and given effect.

[Lord Rooker]

My Lords, I am incredibly grateful for the support for the amendment to ask the other place to think again. We have just spent a bit longer on it—seven minutes longer—than they spent on the whole of it last night, including the vote. I have made my point. I beg to test the opinion of the House.

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Moved by

[Lord Wallace of Tankerness]

That this House do not insist on its Amendments 16 and 19 to which the Commons have disagreed for their Reasons 16A and 19A:

Because the amendments would produce too much variation in the electorate of constituencies and would result in a system that was unduly difficult to operate.

[Lord Wallace of Tankerness]

My Lords, these amendments relate to amendments that were moved by the noble Lord, Lord Pannick, on Report. The House will be aware that the Members of the other place disagreed with them. The purpose of the amendments is to allow the Boundary Commissions to propose constituencies at plus or minus 7.5 per cent of the electoral quota where they consider that there are exceptionally compelling geographical circumstances or local ties. The Government remain of the view that these amendments should not form part of the Bill. A clear and unequivocal view was expressed in the other place on the matter, which is fundamentally about arrangements for elections to that House. The argument advanced by the noble and learned Lord, Lord Lloyd of Berwick, in the previous debate has an equally persuasive force in this debate, too.

The issue of variation from absolute parity dominated many of our debates throughout our deliberations and in quite a lot of other discussions. I believe that the House has performed an important role in focusing on the issue and indeed in trying to find some way that might command support on all sides of the House. The House made an exception in the case of the Isle of Wight and the Government have accepted that. However, it is important to make a distinction between the exceptions to the parity rule in the Bill that Parliament has decided should be exceptions—the Orkney and Shetland seat, the Western Isles seat and now the Isle and Wight seat—and the exceptions from the parity rule that would be determined by the Boundary Commissions.

It might be helpful if I set out the Government’s objection to the amendment. The Government’s proposal, as I have indicated, is for a 5 per cent range on either side of the UK electoral quota. That, of course, means a band of 10 per cent. We believe that that band has a clear rationale. It is the closest that we can get to achieving equality; I think that everyone recognises that absolute equality and no flexibility whatever would not be a proper way of proceeding. We believe that a 5 per cent range on either side is a way in which we can achieve equality in the weight of the vote and an equal say for voters in the outcome of a general election and at the same time allow the Boundary Commissions, particularly the Boundary Commission for England, to continue their practice of using wards as the building blocks of constituencies.

Let us remind ourselves that wards are drawn up with local factors in mind. We have had many debates about their importance in this regard and it would be unfortunate not to mention in this final set of debates Professor Ron Johnston, who has been quoted considerably. We will give him another airing. In his contribution in his first evidence session before the Political and Constitutional Reform Committee, he noted that much local political activity and engagement is based on the ward structure. The secretary to the Boundary Commission for England, in his evidence to that same committee, said that under the rules in the Bill it would be possible to allocate constituencies using wards in the majority of cases. While an absolute prohibition on splitting wards would not be appropriate, not least because in some cities the wards are so large that it might make more sense for local communities to be divided, we accepted arguments made in this House that the commissions should be explicitly empowered to take wards into account. Indeed, we tabled an amendment to that effect.

As I indicated, wards offer a clear rationale for striking a balance between the competing principles of one elector, one vote and local flexibility at 5 per cent of the quota. The figure of 7.5 per cent lacks that objective rationale and would increase the variation that was permitted, compromising more the principle of equally weighted votes in doing so. In particular, it is worth remembering that a 7.5 per cent variation on either side would not resolve the issue of the exceptional constituencies that has been raised in a number of our debates. It would not preserve the Argyll and Bute constituency and it would not guarantee the Tamar as a border, the borders of historic counties or the Isle of Wight comprising whole constituencies.

In debates, your Lordships concluded that there was a special case for treating the Isle of Wight as an island constituency. At the time, the Government expressed a different view, but we have now recognised the strength of cross-party support and have brought forward provisions to treat the island in a manner that is consistent with other island exceptions in the Bill. Therefore, Parliament, as I have indicated, has concluded that the Isle of Wight is a special case. We believe that that is the right approach.

The alternative approach before us would place the decision in the hands of the Boundary Commissions and open the door to further variations in a way that could cause practical difficulties for the review. We do not agree that the use of discretion will be as unusual as perhaps some of those who support the amendment think it might be. The noble Lord, Lord Pannick, sought to reassure us on this point on Report and has drafted the amendment with the benefit of his considerable expertise and in such a way as to protect commissions from successful judicial review. However, that is not the same thing as limiting the use of the discretion, as those who have practical experience of the way in which reviews operate and of the role played by political parties would testify.

The flaws in the 1986 legislation and the merits of the rules in the Bill as drafted were set out clearly in the British Academy report on the Bill. Those experts, who have the benefit of many years of practical experience in these matters, said that,

“the rules set out in the Bill are a very substantial improvement on those currently implemented by the Boundary Commissions (they have a clear hierarchy and are not contradictory)”.

Our concern is that, at a stroke, the clarity and fairness of the rules would be undone by this amendment, since theoretically there could be 600 claims for exceptional local ties. Even if there were not 600 claims, one could still anticipate a considerable number. In at least one part of the debate yesterday in the other place, one could already hear some of the arguments that were beginning to be worked up.

Local ties are genuinely important to communities. That is why, within the 10 per cent range that is provided for in the Bill, the Boundary Commissions can take them into account, as they always have. However, we all know, and the evidence is clear, that these are the means by which parties disguise arguments in their electoral interests. As we know from Professor Ron Johnston’s evidence to the Political and Constitutional Reform Committee in October last year, these inquiries were “dominated by political parties” and,

“very largely an exercise in allowing the political parties to seek influence over the Commission’s recommendations”.

There is also the risk of complex and often unknown knock-on effects; I think I described some of them when we debated this on Report. The knock-on effect of flexibility is applied, and not necessarily to the immediately neighbouring constituency. Again, I reference Professor Johnston, who has many years of experience in this. When studying the practical impact of the rules in the 1986 Act, he noted that it would be a problem, especially if the Boundary Commission proposed constituencies for an area within the 5 per cent constraint and then someone came up with an extremely compelling argument for 7.5 per cent, and that the knock-on consequences could ripple right through a region, indeed right through a country. He said that the Boundary Commission would then have to re-jig all the constituencies in that region, which would undoubtedly delay the process. Would they make the deadline?

To those who argue that the same argument applies to a 5 per cent band of tolerance as it does to 7.5 per cent, I would say that that is true up to a point, but the Government propose from the outset that all areas will be treated the same and that the options for boundaries in a specific locality will therefore be available to all those involved. If a change is made, particularly at later stages, under our rules it would still fall within the original 95 to 105 per cent range, but that would not be the case if a knock-on effect arose from a tolerance of up to 7.5 per cent in exceptional circumstances, because by doing that the envelope would be made smaller in some respects and the other constituencies would have to fit into that smaller envelope.

There is also an important distinction of principle to be made. The amendment asks the commissions to create a special band of electors who are outside the rules that apply to everyone else and whose votes might therefore carry more or less weight than elsewhere. That stands in contrast, as I have indicated, to the approach that has been put forward by the Government, which ensures that the overwhelming majority of UK parliamentary constituencies are treated on an equal footing, except those exceptions that Parliament has decided—the ones originally in the Bill and the one proposed by this House on the Isle of Wight, which has been accepted by the Government and voted for in the other place.

In conclusion, I believe that our House has had the opportunity to consider the amendment put forward by the noble Lord, Lord Pannick. It has been an important issue. The noble Lord, Lord Pannick, I think, would acknowledge that quite a lot of effort was made to see whether we could find a way forward. In that respect, a considerable amount of work was done—not only during the passage of the Bill through your Lordships’ House—in response to your Lordships’ clear views. The other place has also now had the opportunity to consider this amendment. A clear view has been expressed in the other place. Members of the other place have considered this and there were majorities of 67 and 71 respectively rejecting these amendments. The other place has expressed a clear view on these matters, which relate to its function and its membership. Your Lordships’ House asked it to think again. It has done so. I therefore urge caution before we ask it to consider the issue once more. I beg to move.

Amendment B1 to Motion B

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[Lord Falconer of Thoroton]

This is also an important debate and, again, the question is whether or not we should ask the other place to think again. We on this side of the House think it is right that we should do so.

Again, there is an interaction of two issues: first, the extent to which the matter has been properly considered by the other place; and, secondly, the extent to which it is an important issue. On whether the Commons has had a proper opportunity to consider the issue, this debate was an hour long in the other place. In winding up for the Opposition, Mr Sadiq Khan pointed out that Mr Mark Harper had taken up two-thirds of the time available. Right across the debate there was the repeated theme that the Government were not listening and that there was not clarity about what was happening. I shall not quote from Labour Members but from coalition Members.

When addressing Mr Mark Harper, Mr Mark Field said:

“Does my hon. Friend not appreciate the concern that when we are discussing whether there should be any variance, be it of 5% or 7.5%, it is important to know how the process operates? … If we do not have at least a basic understanding of how it will operate, it will be difficult for us to make any value judgment as to where the variance should lie, which is the subject of amendment 19”.—[Official Report, Commons, 15/2/11; col. 864.]

That is what we are now talking about.

Mr Andrew George, a Liberal Democrat Member, said:

“Given the nature of some of the questions that the Minister has been asked in the past few minutes, does he agree that perhaps there should be an opportunity to review the wisdom of going ahead on the basis that he is describing?”.

Later again, the same Member—a coalition Member—went on:

“My hon. Friend is absolutely right, but I think that the inflexibility of the proposals will result in much more significant changes across the country … All I am asking is that the Government take a less intransigent and more flexible approach”.—[Official Report, Commons, 15/02/11; cols. 865-8]

One Labour Member is worth quoting. Mr Paul Murphy, who had a distinguished career and was Secretary of State for Wales, said:

“I do not understand why the Government and the Minister are being so rigid and fundamentalist on this issue”.— [Official Report, Commons, 15/02/11; col. 869]

The mood around the House, from reading Hansard, is that inadequate answers were given, that the Government were being unnecessarily rigid and that there was no proper understanding of how it would work. That is perhaps not surprising, because this amendment first saw the light of day—in the sense of it being passed by this House—a week ago today. The material in the other amendment is going back to the other place for further consideration. In my respectful submission, it would obviously be wrong if this did not go back with it.

Is this an important amendment? In my respectful submission it is. I do not know how many of your Lordships were present when the noble Lord, Lord Armstrong, told the story of Procrustes; or when the noble Lord, Lord Pannick, went through the detail of the work that he had done with the Government to get to a place with this extra 2.5 per cent. He was the only person in that debate—including the Government—who had done the work and thought through what the consequences were. For example, in relation to the point made by the noble Lord, Lord Butler of Brockwell, there are some wards that are so large that they will not be protected by 7.5 per cent, so obviously there will be even more wards that will not be protected by 5 per cent. The answer to the question put by the noble Lord, Lord Butler of Brockwell, is that more wards will have to be broken up under 5 per cent than under 7.5 per cent. I hope that blocks the retreat for the noble Lord, Lord Butler of Brockwell, at this particular point.

As far as the overall position is concerned, the noble and learned Lord, Lord Wallace of Tankerness, referred to the academics and the people involved in the area. Professor Johnston, the leading academic in relation to this issue, said he did not normally support public inquiries; however, what the noble and learned Lord, Lord Wallace of Tankerness, did not say was that he thought that, in the context of such a far-reaching change as is envisaged by this boundary review, there is a strong argument for the ability to make changes. Robin Gray, the former chairman of the Boundary Commission, said that some flexibility in addition to the 5 per cent was required.

In relation to the issues that were being considered in the previous debate, we considered the issue of judicial review in detail. Of course I respect the noble and learned Lord, Lord Mackay of Clashfern, in relation to the issues that he raised, but the noble and learned Lord, Lord Woolf and the noble Lord, Lord Pannick, both expressed the view that most judicial reviews, even on this, would fail. I also make the point that the courts, in looking at these issues, would be well aware of the deadline, which would be sometime in October 2013. These issues would arise during 2012, so the courts, in my respectful submission, would be well able to have timetables that would ensure that the deadline of October 2013 was met. They would not be faced with these issues late on in the process, but much, much earlier on. The application for leave for judicial review would take place at such a time that the court could deal with them quite smartly. The noble and learned Lord, Lord Scott of Foscote, made the point that hopeless applications for judicial review take time—which is absolutely true—but a court keen to meet a deadline set in statute would in my respectful submission be able to deal with that.

The final point dealt with in the debate in the Commons was the statement that it was not possible to craft a genuine exception—a point I should say that was not made by the noble and learned Lord, Lord Mackay of Clashfern, in this debate; but which was referred to by Mr Mark Harper, who cites a case called Al Rawi and others v Security Service, a case about the extent to which you can have a special procedure for terrorists. It is hard to imagine a case more different than the sort of case the courts would be dealing with here, and it may be an indication of the difficulty in finding support for that proposition. I do not ask that this House reaches a firm conclusion; all I say is that it is the right thing to do for this House to ask the other place to think again. That seems very little to ask. We support the noble Lord, Lord Pannick.

[Lord Wallace of Tankerness]

My Lords, once again I thank noble Lords who have participated in this debate on what is an important issue, as has been recognised many times during the passage of the Bill through your Lordships’ House. I start by picking up the points made by both the noble Lord, Lord Pannick, and my noble and learned friend Lord Mackay of Clashfern with regard to the lengthy delays in responding both to the report from the Political and Constitutional Reform Committee in the other place and to your Lordships’ Constitution Committee. I am not in a position to offer any explanation, but I do recognise that the time that was taken cannot have assisted either House and I therefore wish to apologise. Responding to the point made by my noble and learned friend, I will certainly take it upon myself personally to make sure that the comments made in your Lordships’ House—and indeed I will reflect the force of them too—will be conveyed to colleagues.

It has been argued that the role of the House in asking the other place to think again, and indeed in asking the Government to think again, has been well discharged in respect of these amendments. As has been acknowledged, the Government did engage to see whether there were ways in which we could find common ground and indeed there has been an opportunity for consideration in the other House. However, before inviting the House to send the amendments back again for further consideration, it is important that we perhaps reflect as to what this supreme constitutional principle that we are asking the other place to think about is. Is it just 2.5 per cent? One of the principles of the Bill, referred to by my noble friend Lord King of Bridgwater, is that of equal votes—one vote one value—as best we can throughout the United Kingdom. That is an important principle and one we believe is reflected in the Bill and which, bar the two issues that are now outstanding, has been accepted by both Houses. It is not slavish arithmetic, as I sought to explain. The 5 per cent variation, which gives 10 per cent in all, was not just conjured up—indeed my noble friend thought that it should have been lower than that. In response to the question from the noble Lord, Lord Butler of Brockwell, we believe that the 5 per cent is the closest we can get to achieving equality in the weight of a vote—I am repeating myself but it is important to do so—and an equal say for voters in the outcome of a general election while allowing the Boundary Commission for England to continue its practice of using wards as the building blocks of constituencies in England. I remind the House that the wards themselves are drawn up with local factors in mind.

The contribution of the now much quoted Professor Johnston, in his first session before the Political and Constitutional Reform Select Committee, noted that much local political activity and engagement was based on the ward structure. Crucially, the secretary to the Boundary Commission for England, in his evidence to that committee, said that under the rules in the Bill it would be possible to allocate constituencies using wards in the majority of cases. I did say, in my opening remarks, that an absolute prohibition on splitting wards would not be appropriate because there are some places—Birmingham is a case in point—where some wards are so large that it might not be possible not to split them. In these cases, the wards may even be so large that it might make more sense for local communities for them to be broken up to get a more readily identifiable sense of community. The basic point is that in the vast majority of cases it is believed that wards will be the building blocks for the constituencies in England. That is why the 5 per cent was chosen. We have yet to hear, with all due respect, a rationale for 7.5 per cent. I have sought to explain why 5 per cent is right and why there is a rationale behind it, but we have not yet heard a clear rationale for 7.5 per cent.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

That this House do not insist on its Amendments 17 and 20 to which the Commons have disagreed, and do agree with the Commons in their Amendments 20A to 20E in lieu.

[Lord Wallace of Tankerness]

My Lords, during the passage of the Bill through your Lordships’ House there was a very important Committee debate on the Isle of Wight. As I indicated on behalf of the Government at that time, the fundamental principle underpinning the Bill is that one elector should mean one vote. At that stage the Bill was subject to only two exceptions. It was our view that a cross-Solent constituency, comprising part of the Isle of Wight and part of the mainland, was practicable as the island does not have the challenging geography of the other preserved constituencies. However, the arguments made in that debate, not least by my noble friend Lord Fowler, carried the day in this House. It did so by some margin and with considerable cross-party and Cross-Bench support. This undoubtedly gave us reason to reflect, and we have come to the view that the case against a cross-Solent constituency is persuasive.

That was the objective of the amendment proposed by my noble friends Lord Fowler and Lord Oakeshott. However, their amendment left open the question of whether there should be one seat or two on the island. That was left up to the Boundary Commission for England. There are practical reasons why we have reservations about that. The noble Lords’ amendment did not provide the Boundary Commission for England with any instruction on how it should determine the number of seats to be allocated to the Isle of Wight. Nor was any consequential amendment tabled to deal with the matter. The Government consider that if an exception is to be made for the Isle of Wight, it would be consistent and fair for it to be made on the same basis as for the other preserved constituencies in the Bill.

The amendments passed by the other place following a Division provide certainty for the commission by requiring that the island has two seats, and by taking those constituencies outside the formulae for the allocation of seats to parts of the United Kingdom and the calculation of the electoral quota elsewhere in the Bill. Two seats of around 55,000 electors each would be much closer to the electoral quota than one seat of around 110,000. That is consistent with the underlying principle of equality. Furthermore, I understand that the population of the Isle of Wight looks set to increase. Two seats would be likely to move closer to the quota, whereas one seat would move further away from it. It is practical and, as the honourable Member for the Isle of Wight in the other place confirmed in his speech yesterday, it respects the wishes of those who mounted a vocal and, as we have seen, effective campaign to prevent a cross-Solent constituency. I beg to move.

[Lord Fowler]

My Lords, I will be brief. I thank the Government for listening to what the House of Lords said on my amendment and for the decision that they have taken. My amendment was special in that we were dealing with an island that has only ferries connecting it to the mainland. I said in moving the amendment that it would allow there to be one or two constituencies on the Isle of Wight. The Government have decided to be specific and make two, and that is the right decision.

The only other options would have been to have one massive constituency on the Isle of Wight or, alternatively, a cross-Solent constituency. That cross-Solent constituency would have meant there being one constituency on the Isle of Wight itself, with the remaining 35,000 electors put together with part of, say, Portsmouth on the mainland. It would be divided by 10 miles of the Solent, with expensive ferries being the only means of communication. The constituency would be partly on the mainland and partly on the island. It is all very well to talk about community but the natural centre of that constituency would have been in the middle of the sea. There is no doubt that such a solution was rejected decisively by the people of the Isle of Wight. Eighteen thousand people signed a petition against it. The councils were against it, as were all the parties—the Liberal Democrats, Labour and the Conservatives.

In our previous debate the Minister suggested, without overstating his case, that there were some who had written in support of a cross-Solent solution. Very courteously, as always, he offered to investigate how many had done so. Unfortunately his reply was not entirely convincing. In his letter of 7 February, he said:

“You asked how many representations received about the Isle of Wight were in favour of the Bill’s original proposals and how many were against. The Cabinet Office does not record correspondence in a way that would enable us to readily identify whether the authors were for or against particular issues”.

Perhaps that is just as well in the Minister’s case, although it raises a few questions about the value of writing to the Cabinet Office on any issue. To be fair, the Minister went on to say that he,

“was not seeking to claim that there were an equal number of representations received both for and against the Bill’s proposals”.

The Minister was absolutely right. I congratulate him and the Government on reaching the decision that they have.

It has been a very long process but the Government have listened at the highest level and the Commons has decided. I thank all those concerned with this campaign, particularly the excellent Member of Parliament for the Isle of Wight, Andrew Turner, who has worked long and hard to achieve this outcome. No one could have done more. I also thank my supporters in the vote on 19 January from around the House—from all parties and the Cross Benches—including those who found pressing engagements when the vote was called and abstained. I thank the opposition Front Bench; it is the first time in my political career that Labour Whips have provided Tellers for any Motion or piece of legislation that I have introduced over the past 40 years.

I make just one further comment. Given the progress of the Isle of Wight debate, no one can be happy with the heavy timetabling in the other place. I know that it is inherited from the previous Government but it prevented the island’s MP putting the issue to the vote before it came to the Lords, and virtually prevented him making a speech. I hope that the Government will now look anew at that procedure. Having said that, this amendment, which the Lords have carried and the Government have accepted, seems to me to carry out the traditional function of asking the Commons and the Government to think again. They have done so and I congratulate them on their good sense and on the outcome.