Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 10, in

clause 11, page 5, line 13, leave out subsection (2).

Mr John Butterfill (Bournemouth West, Conservative)

With this it will be convenient to take amendment No. 18, in

clause 12, page 6, line 31, leave out subsection (7).

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The heading of clause 11, ''Supplementary'', is not very inspiring, but we have learned that it is often necessary to look at the little capsule clauses at the end of a part for provisions that might be contentious. Amendment No. 10 seeks to leave out subsection (2), which astonishingly states:

''It is immaterial whether the power is exercised before or after the passing of this Act.''

That refers to the power of a Minister of the Crown, as referred to in subsection (1), to

''make provision under section 129 of the 2000 Act . . . in connection with a referendum held in pursuance of an order under section 1''.

That tells us, if I have understood it correctly, that a Minister can make provision under section 129 of the 2000 Act in connection with a referendum held pursuant to section 1 of the Bill before it has been passed by Parliament, and certainly before it has received the Royal Assent. That seems wholly improper and inappropriate.

Why are the Government always in such a hurry, for goodness' sake? Why can they not just get the legislation through, and then deal with the processes in a proper and measured way? Why on earth do they want to use powers under the legislation before it has even been passed? That might incur public expenditure on matters that never see the light of day. Who knows? We are realists, and we recognise the electoral arithmetic in this House, but I hope that the Minister is also a realist and recognises that some of the issues in the Bill will be hotly debated in the other place, where the outcome is not always such a foregone conclusion on the basis of arithmetic.

It is quite extraordinary to say that it is immaterial whether a power is exercised before or after the passing of a Bill. I wonder whether such retrospective legitimisation of ministerial action is to be a feature of all future Government legislation. Subsection (1) appears to be a retrospective justification of something carried out now without any proper legal basis or empowerment. That is my concern in principle. Clearly, Ministers have something in mind when they draft such a subsection. Will the Minister explain what Ministers have done, or are intending to do, before the Bill is passed that the subsection would retrospectively authorise?

Mr Gary Streeter (South West Devon, Conservative)

I support my hon. Friend in his arguments. On Sunday I caught sight of a television programme, which I think was called ''Chocolate''.

Mr Desmond Swayne (New Forest West, Conservative)

On a Sunday?

Mr Gary Streeter (South West Devon, Conservative)

Yes, it was after ''Songs of Praise'', so it was all right. It set out the story of an autocratic Government who came to power and banned chocolate; they trampled roughshod over the rights and freedoms of the British people.

Mr Lawrie Quinn (Scarborough & Whitby, Labour)

I believe the programme was called ''Bootleg'', and it was about a Government taxing chocolate. I did not see it, but I am very interested to learn that the hon. Gentleman was watching it.

Mr Gary Streeter (South West Devon, Conservative)

I am grateful for the clarification. The programme set out rather graphically how easy it would be in this country, where we take our democracy and freedoms for granted, for a 15Government to ride roughshod over the rights and freedoms of the people. As I look at the clause, I see that it raises exactly the type of issue that the programme dealt with. [Interruption.] Oh yes. It has little to do with chocolate.

In the first part of the Bill, there seems to be clarity as to the framework of tackling referendums for regional government. Clause 11(1) states:

''This Part does not affect the power of a Minister of the Crown to make provision under section 129 of the 2000 Act''.

As my hon. Friend the Member for Runnymede and Weybridge rightly said, under subsection (2), which our amendment would extract, it does not even matter

''whether the power is exercised before or after the passing of this Act.''

Let us consider the nature of the power in section 129, which clause 11(2) could allow to be exercised today, even before the Bill goes any further. Section 129(1) of the 2000 Act says:

''The Secretary of State may by order make such provision as he considers expedient for or in connection with regulating the conduct of referendums to which this Part applies.''

It then gives some specific examples of the type of order that the Secretary of State might make. The second is that he might

''apply (with or without modification) any provision of any enactment'',

and so bring in any provision from any other Act on the statute book. It then says that

''different provision may be made under this section in relation to different parts of the United Kingdom.''

The Secretary of State may do what the heck he likes in relation to referendums—even different things in different parts of the country—even before this Bill becomes law, so what is the point of having this Bill? It has a huge gaping hole in it that enables the Secretary of State to make a power, by order, under section 129 of the 2000 Act, to do whatever ''he considers expedient'' in relation to the conduct of referendums.

Can the Minister explain what the purpose is of carefully setting out a framework for referendums when that contains reference to the mighty power in section 129 of the 2000 Act? Can he also explain, as my hon. Friend the Member for Runnymede and Weybridge said, what sort of action he anticipates taking before the Bill becomes law to enable subsection (2) to be worth the paper it is written on?

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

My hon. Friend is a lawyer and I shall draw on his experience. Does he not think that a Standing Committee considering such an order would have a severe difficulty? It would be considering a draft order relating to a referendum to be conducted under section 1 of an Act that did not yet exist. How on earth could members of that Committee properly consider the draft order before them?

Mr Gary Streeter (South West Devon, Conservative)

My hon. Friend makes a powerful point. That is parliamentary nonsense. I have never known such a thing happen. I have never known a Government to be passing a Bill through Parliament 16and to make an order in relation to that Bill even before the ink is dry on it.

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

A Conservative Administration were in power when the Housing Act 1988 was passed. A similar provision expressly allowed consultation to be undertaken with local housing authorities for the purpose of making orders for designating housing action trust areas before the enactment of that Bill.

Mr Gary Streeter (South West Devon, Conservative)

It is one thing to consult with people, which we all support and agree with. I am talking about section 129 giving the Secretary of State power to make whatever order he thinks expedient in relation to the conduct of referendums. That could include, going back to the point raised by the hon. Member for Ludlow, all-postal ballots. The Secretary of State could make an order tomorrow saying that referendums for regional government will take place by all-postal ballot. What in this Bill could stop him?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I am pleased to hear the hon. Gentleman say that it is all right to consult in advance, because that argues strongly against amendment No. 18, which he supported, but I imagine will not now. I also draw his attention to section 26(3) of the Local Government Act 1988, again passed when his party was in power. That said that consents could be given to allow local authorities to give financial assistance for privately let housing accommodation before the legislation was passed.

Mr Gary Streeter (South West Devon, Conservative)

I am delighted that the Minister wants to keep on intervening, giving us more and more illustrations—he might get warmer as he goes on, but I do not find the examples that he has given reassuring in any way. The powers of section 129 are so widely drawn and potentially draconian that they could enable a Secretary of State, before this Bill becomes law, to pass any order that he thinks expedient for the running of these referendums. That is a mighty and far too overweening power, and we would be right to exclude subsection (2) from clause 11.

We then come to subsection (7). I did not quite understand the Minister's reference to amendment No. 18, which, as I understand it, would simply remove subsection (7). Can I have clarification on that?

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

From clause 12.

Mr Gary Streeter (South West Devon, Conservative)

It would remove subsection (7) from clause 12. That perhaps explains my confusion.

Mr Desmond Swayne (New Forest West, Conservative)

May I caution my hon. Friend the Member for South-West Devon not to feed ideas to Members on the Government Benches? They have shown their willingness to act in an overmighty way by having this provision in the Bill, but he made various suggestions of things that they might do. I am quite sure that they are capable of doing every one of them, so we should show some discretion in what we suggest.

I want to ask a question that the Minister has started to answer in his interventions. What are the precedents for such a provision? Those that he has given so far have not sounded terribly impressive. However, I wonder what Opposition Members were doing in the Standing Committees when those precedents arose.

This strikes me as the most shocking power—it really is what we might call the Attila the Hun subsection of the Bill. Including such a subsection gives Ministers the power to start implementing the provisions of a Bill before it is enacted. That will do away with their obsession with timetabling: if such a provision is included, they will no longer need to worry about how quickly their business will get on to the statute book.

That is a monstrous precedent. I cannot believe that hon. Members in previous Standing Committees sat with their eyes closed to that sort of thing, if indeed it did happen but even if it did, that does not mean that we should sit back and allow it to happen again now.

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I wonder whether the hon. Member for New Forest, West (Mr. Swayne) is now washing his hands of the Local Government Act 1988 or the Housing Act 1988. I, too, was not here at that time, but clearly, a number of precedents were set in those Acts. I believe that they are entirely relevant to today's debate. As I said, I am glad that the hon. Member for South-West Devon thinks that it is all right to undertake consultation prior to the enactment of legislation. My other example was about the giving of financial consents prior to the passing of an Act, also a precedent set under the previous Administration. I am not sure whether the right hon. Member for Haltemprice and Howden (David Davis) was a Member of Parliament at that time, but I am sure that he would have a word or two to say about the Local Government Act 1988.

Amendments Nos. 10 and 18 basically seek to remove references to actions that might be taken before Royal Assent. Although I accept that those provisions seem unusual, they are not, as I have explained, without precedent.

Mr Gary Streeter (South West Devon, Conservative)

The Minister says that those provisions are not without precedent, but he must accept that the two Acts that he has just cited did not refer to section 129 of the Political Parties, Elections and Referendums Act 2000, which contains a wide draconian power.

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

Those two Acts certainly did not refer to section 129 of that Act, which came after them. However, I would not necessarily regard that section as particularly draconian, as the hon. Gentleman described it. After all, we are talking about a section that gives the Secretary of State power to make, by order, general provision for national and regional referendums in the United Kingdom and provision for the conduct of those referendums. In pursuance of my argument, it would be useful if I referred from now on to section 129 of the 2000 Act as the conduct section, for simplicity's sake.

The Lord Chancellor's Department, which has responsibility for the generic legislation on referendums, is currently preparing a draft order under the conduct section provisions. That is intended to provide a generic framework for regulating the conduct of referendums in general. Drafts have been discussed in the Electoral Commission's regional referendums working group, and the Lord Chancellor's Department hopes to undertake wider consultation in the new year. Its consultation will take time to complete, and it will want to look seriously at the responses. Therefore, I cannot say precisely when its generic conduct order will be made, and, of course, as the hon. Member for Runnymede and Weybridge said, we cannot predict exactly when the Bill will receive Royal Assent. The generic conduct order could come first, or the Bill could reach the statute book first.

Subsection (2) is simply designed to ensure that the generic conduct order can apply to referendums on elected regional assemblies, even if the order were made before the Bill receives Royal Assent. If the amendment were to be accepted, there could be doubt as to whether a conduct order made before the enactment of the Bill could apply to a referendum on whether to establish an elected regional assembly. There are many issues relating to the conduct of a referendum, such as the basic format of forms, ballot papers and notices to be displayed in polling stations. It is legitimate for us to draw up, in that generic sense, arrangements that apply to all referendums. It is hardly a draconian power. The point of the subsection is to enable us to get involved in drawing up those arrangements before Royal Assent is received. I fear that the amendment is a stalling tactic to prevent that work from being undertaken.

Mr Edward Davey (Kingston & Surbiton, Liberal Democrat)

Is not subsection (2) superfluous? All the power that the Minister needs is contained in section 129 of the Political Parties, Elections and Referendums Act 2000, so can he explain why he needs this extra power?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

The power is required to allow us to keep our options open, so that we can, if need be, adopt elements, in whole or in part, of the generic conduct order, as established by the Lord Chancellor's Department under the 2000 Act for the purpose of the Bill. Depending on timings, it may not be required, but in case it is required we need to be able to make preparations in advance of the Bill receiving Royal Assent. That is a common-sense approach to take. Preparations in advance of conduct orders need to be undertaken, and it would not be wise or prudent for us to wait until after Royal Assent.

Mr Edward Davey (Kingston & Surbiton, Liberal Democrat)

I know that Ministers and their officials like to take a belt-and-braces approach, but can the Minister confirm that referendums in the Bill would be referendums to which part 7 of the Political Parties, Elections and Referendums Act would apply? If so, all the power that the Government require is in section 129 of that Act.

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I am afraid that I cannot confirm that without having the precise numerical references to the various parts of the 2000 Act in front of me.

Mr John Butterfill (Bournemouth West, Conservative)

Order. The Minister is refreshingly softly spoken, but I, and I think others, are having difficulty hearing him. Can he speak up a little?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I appreciate those words of wisdom, Mr. Butterfill, and I shall try to explain matters as clearly and loudly as I possibly can.

The purpose of the provisions is to give us the leeway to make advance preparations on some of the conduct order issues before Royal Assent is received. I do not regard that as a particularly draconian activity for the Government to be involved in.

Mr Gary Streeter (South West Devon, Conservative)

Will the Minister give way?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I should like to make a little progress.

We are talking about issues relating to the conduct of referendums, such as displays in polling stations, how to write the rules for declaring results, rules for the safekeeping of ballot papers and timetables for the publication of notice of referendums. All those provisions would require parliamentary approval through the normal order-making powers and the generic order approach being considered by the Lord Chancellor's Department. There may be elements of that generic conduct that it is appropriate to adopt and work on for this Bill. We reserve the legal right to do that in advance of Royal Assent, and it would not be an earth-shattering request of Parliament from the Government.

Mr Gary Streeter (South West Devon, Conservative)

This is not about working on those elements within the bounds of the civil service, which can do whatever it likes. It is about bringing them to the surface.

The Minister is a good and decent person. Does he not feel grubby from assuming that this House and the other place will pass the Bill, without significantly amending it? Because the Government intend to have their way—come hell or high water—they are getting on with the detailed work of orders and the conduct of referendums. Does that not reveal the overweening arrogance of a Government with too great a majority who have been in office for too long?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

Of all the arguments that the hon. Gentleman could deploy, the concept that no preparatory work should be undertaken on legislation until it has received Royal Assent is palpable nonsense. That would not be the sensible approach that the public expect of us. A large body of work needs to take place on the Bill before Royal Assent. That is entirely reasonable.

Amendment No. 18 would prevent

''anything done for the purposes of subsection (4)'',

which is about the level of interest in holding a referendum, or subsection (5), which refers to other factors that the Secretary of State may consider before deciding whether to give a direction.

As hon. Members know, a sounding exercise was launched last week to find out the level of interest in each English region. Responses are invited to be returned by 3 March. Level of interest will be the primary factor in determining which region or regions are subjected to a local government review. It is right to hold soundings now. We have made a commitment that the first referendum or referendums should take place during this Parliament, and to fulfil that we must take decisions on the region or regions to be subjected to review shortly after Royal Assent. Soundings on the level of interest in referendums must be conducted now.

No directions for a local government review can be given until after the Bill receives Royal Assent. We are trying to find out people's views on whether they want a referendum on an elected assembly. Minor provisions allow for that activity before Royal Assent. Precedents in other legislation, which often go much further than this provision, should suggest to Opposition Members that this is far from the paranoid conspiracies that they imagine. The amendment must therefore be rebutted.

Mr Desmond Swayne (New Forest West, Conservative)

The Minister may make an order under subsection (2), and it may challenged in the courts before the Bill received Royal Assent. What advice has he had about the validity of such a challenge and whether it could succeed?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

The relevant order would be introduced under the 2000 Act. That order would be subject to normal parliamentary scrutiny, and any subsequent challenge to it would have to contend, in the normal sense, with making a challenge to decisions made by Parliament. That is not necessarily a relevant point on which to oppose subsection (2) and to seek its removal. Subsection (2) is simply about making sure that preparations can be made. Opposition Members are trying to stall preparations, which is a back-door tactic to find a way in which to put something in the spokes of the Bill, which is inappropriate. They should not continue with that argument.

Mr Adrian Flook (Taunton, Conservative)

Can the Minister elucidate the date his Department has in mind for Royal Assent because there must be a timetable?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

The hon. Gentleman will know that the Leader of the House sets out timetabling matters in his normal announcements. The point I sought to make is that we cannot be sure precisely when Royal Assent will be achieved, or whether it will come before or after a generic conduct order from the Lord Chancellor's Department is enacted. We are simply making sure that the option to adopt some of those provisions as part of the Bill is open to us. Subsection (2) is sensible. It is not rocket science. I hope that the Committee will reject the amendment.

Mr Edward Davey (Kingston & Surbiton, Liberal Democrat)

I have been listening to the debate and reading the Political Parties, Elections and Referendums Act 2000, to which the clause refers. I increasingly think that this debate is superfluous because subsection (2) is superfluous. The Government already have the relevant power in section 129(1) of the 2000 Act:

''The Secretary of State may by order may make such provision as he considers expedient for or in connection with regulating the conduct of referendums to which this Part applies.''

I am not a lawyer, but section 129(1) suggests to me that the Secretary of State has the power to make orders with respect to the conduct of referendums. Presumably that is why the Lord Chancellor's Department is looking at a generic order. The power is there. It is clear from clause 11 that part 1 of the Bill is linked with part 7 of the 2000 Act. I do not see why Ministers need this extra power.

Conservative Members may argue that the clause is an abuse of Parliament because the Government want the power before other legislation has been enacted, and the Minister may give a precedent, saying that that is what the Conservatives did when they were in office.

Mr Gary Streeter (South West Devon, Conservative)

The hon. Gentleman is not making a bad point but he is making a wrong point. There is certainly sufficient doubt in my mind as to whether section 129 could apply to a referendum for which the Government have not yet gained sufficient parliamentary authority—in this case, referendums relating to regional government. The matter is not black and white—most law is grey—and there is doubt. Subsection (2) is important to the Government, and we want to take it out so that they cannot exercise their overweening arrogance by stealth through the back door.

Mr Edward Davey (Kingston & Surbiton, Liberal Democrat)

The hon. Gentleman may have a point. I intervened on the Minister to give him a chance to clarify the issue. Perhaps he will make the hon. Gentleman's point in replying to my comments. If that is the case, there may be an argument for subsection (2), in which case the Conservative spokesman's criticisms would apply. Until the Minister clarifies the matter it is open to interpretation.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I do not detect in the Under-Secretary's tone a desire to do down Parliament or do something that Members would find odious. I get the impression that he has not got a grip on his Department. This is the kind of measure that makes life much easier for the people running the Department. It covers all exits. Throughout the Bill there are provisions that say, ''If you make an order and cock it up, you can make another order that undoes it.'' Such provisions make life very easy for the people charged with doing the job. He needs to get a grip on his Department. He has given a perfectly innocent explanation of a potential use of the power, but has ignored the fact that there are all sorts of other things, which cannot be explained so innocently and are not so readily acceptable, that Ministers could do with it.

The hon. Member for Kingston and Surbiton (Mr. Davey) is making a very good point, but he is making it in relation to generic orders that might be made under the 2000 Act. The Government clearly have the power to make a generic order under the 2000 Act. If they were to make such an order by virtue of section 129(3), unless the Bill specifically excludes the provisions of such a generic order, it would apply to a referendum under clause 1 of the Bill.

The hon. Gentleman is right. If the Government's argument is that they may want to make a generic order under section 129, they do not need the provision. They will need the provision if they want to make a specific order under section 129 that applies to referendums that will be conducted under the Bill. We object to that because it represents yet another example of the Government's contempt for Parliament and the parliamentary process. They assume that they will get their Bill through in its entirety without amendment. They are effectively giving themselves the power to make orders, which are specific under the PPER Act, under clause 1 of the Bill in relation to regional referendums, which they will retrospectively authorise under the provision. That is quite outrageous.

Why, for example, would the Under-Secretary not make an order now under the provision starting the countdown to a referendum? Why could he not do that? He could use the powers in section 129 of the 2000 Act to make an order in connection with the regulation of the conduct of referendums now, and retrospectively legitimise it when the Bill is enacted.

The Under-Secretary criticised amendment No. 18, but the grouping of amendments is your decision, Mr. Butterfill, and not something over which Opposition Members have any control. Amendment No. 18 deals with clause 12(7). Although the wording of clause 12(7) is identical to the wording of clause 11(2), it has a different meaning. Clause 12(7) does not deal with an order-making power; it deals with a process of consideration, which the Secretary of State must undertake. I would readily accept that it does not have the same constitutional implications as clause 11(2) because it only deals with a process that the Secretary of State must do, to use the analogy of my hon. Friend the Member for South-West Devon, on a wet Thursday afternoon sitting in his office with his feet on the desk. He does not have to go to Parliament to obtain an order.

It is equally bizarre that the Government, who have been in office for more than five years, who have a large parliamentary majority and who can therefore expect to remain in office for nearly another four years before they get booted out, should be in such a crashing hurry. Why cannot the Secretary of State wait, if he needs legislative authorisation, to consider views expressed and to look at published material, which is all that clause 12(4) will allow him to do? If he needs legislative authorisation, why cannot he wait until the Bill has completed its parliamentary course and do things in the proper order?

Since the Government came into office, they have tried to cram far too much legislation through the House. They have curtailed debate on that legislation in their effort to get it through. However, their legislative programme is so crowded and congested that they have had to ask for a power to make provisions before consideration has been completed and before Bills have received Royal Assent.

It is a classic example of the Government's contempt for Parliament, and their failure to get a grip on the process of government. I urge my hon. Friends to support amendment No. 10.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 7.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 55, in

clause 11, page 5, line 19, at end insert—

'(3A) For the purpose of any order made by the Secretary of State under section 129 of the 2000 Act in connection with a referendum pursuant to section 1 the expression ''in different parts of the United Kingdom'' shall mean England, Scotland, Wales and Northern Ireland and shall not mean regions of England as defined in section 26.'.

Mr John Butterfill (Bournemouth West, Conservative)

With this it will be convenient to discuss the following:

Amendment No. 56, in

clause 11, page 5, line 19, at end insert—

'(3A) For the purposes of a referendum pursuant to section 1, paragraph (2) of Schedule 14 to the 2000 Act shall be so that any financial limit referred to in that paragraph is the amount set out in that paragraph multiplied by the fraction that the population of the region in which the referendum in question is being held bears to the population of the United Kingdom as a whole.'.

Amendment No. 64, in

clause 11, page 5, line 19, at end insert—

'(3A) For the purposes of a referendum pursuant to section 1, ''the relevant period'' as defined by subsection (4)(b) of the 2000 Act shall be taken to be the period commencing on the appropriate day as defined in subsection 8(3) of the Act.'

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The amendments deal with issues relating to the operation of the 2000 Act, as regards the Bill and referendums conducted under clause 1. Amendment No. 55 deals with a provision in section 129 of the 2000 Act, which my hon. Friend the Member for South-West Devon has already quoted to the Committee. That provision states that an order may apply differently to different parts of the United Kingdom. That is not an unfamiliar provision in legislation, and it is normally taken to mean that different provisions may be made for Northern Ireland, for example, where there are different practices and traditions in voting.

The amendment would establish that different provisions for different parts of the United Kingdom is intended to mean different provisions for Scotland, Northern Ireland, Wales and England, so that in the context of a referendum conducted in one of the English regions that provision of the 2000 Act would not—I hope—allow orders to make different provisions for different English regions. I hope that it is obvious to the Minister why that issue is raised.

There are different levels of interest in regional assemblies in different regions, but a fair, level playing field is vital if there are to be referendums. People who oppose the Government's argument—those promoting a no vote in a referendum—would rightly feel indignant if the Government sought to change the referendum rules in different regions depending on their assessment of the situation in those regions. I think that it would be unprecedented—I stand to be corrected if the Minister has a counter example—to find other legislation in which the interpretation of different provisions for different parts of the United Kingdom meant different regions of England, as opposed to the constituent nations of the UK.

Mr Edward Davey (Kingston & Surbiton, Liberal Democrat)

I have some sympathy with the hon. Gentleman's remarks but would have more if he were talking about a situation in which there were 24referendums in every English region on the same day. It is possible that the Government will get the regulations wrong—not wrong, perhaps, but not perfect—for the first set of referendums. Therefore, there may need to be room for improvement. Does not the hon. Gentleman agree that there should be some flexibility?

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

As the hon. Gentleman knows—I am sure that he has studied the amendment paper assiduously—we have tabled an amendment proposing that referendums should be conducted on a single day throughout England in order to give a proper assessment of the level of interest nationally, as well as the level of interest in individual regions. I suspect that those who are charged with drafting the Bill have put to Ministers the argument that they might make a mistake and should, therefore, have as many routes out as possible.

We all know that democracy and the rule of law are terribly inefficient. However, they are also terribly important. If jolly good, competent civil servants could simply do everything by regulation without the need for Parliament or Ministers, it would all be much less messy, but over the years we have come to realise that it is not satisfactory to allow such unfettered administrative government. We must have democratic controls over what is done in our name. Such considerations should outweigh the administrative convenience of being able simply to correct mistakes.

Ministers may have no intention of abusing their power, but this Minister cannot bind his successors. It is likely that a series of referendums, if they are held at all, would be held over a longish period—it would probably take at least a decade to cover the whole of England. The results would be extremely open to misinterpretation if the Minister were to change the referendum rules for different parts of the country.

Mr Gary Streeter (South West Devon, Conservative)

I think that we can all understand the Government's need to learn lessons from referendums in different parts of the country and so march towards perfection. However, would it be fair if there were a referendum in the north-east with a very low turnout and, in response, the Government changed the rules on how people could cast their votes in the next referendum, if there were one?

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

That would not be fair, and I think that most people would agree. The Government have framed the legislation in a way that absolutely gives them the best chance to get the result that they want. It allows them to pick off regions one at a time and to slope the playing field in many other ways, which you probably would not thank me for discussing in great detail now, Mr. Butterfill, but which we will have an opportunity to discuss during consideration of clauses 1 to 4 in the Committee of the whole House. I agree with my hon. Friend that that situation would be most unsatisfactory.

I suspect that the ability of Ministers to make different rules for different regions would strike the average fair-minded English person as inappropriate and unfair. I anticipate that at some later date the Minister will tell us that a series of referendums could not possibly be held on the same day for administrative reasons: it would be too difficult, there would be too much hard work, people would have to stay up too late at night working on boundary reviews. I believe that people would not expect referendums held on different days in different regions to be held under different rules. I look forward to hearing what other members of the Committee have to say on the matter.

Turning to amendment No. 56, may I draw the Committee's attention to a printing error? I am looking at the blue copy. Line 2 should say:

''Schedule 14 to the 2000 Act shall be amended so that any financial limit referred to''

and so on. I do not think that that changes the meaning tremendously.

As has already been mentioned, schedule 14 of the 2000 Act puts a £5 million limit on campaign activity by a designated campaign. I do not think that anybody has in mind that a designated campaign in one region—especially in the smallest region, the north-east—should be allowed to spend anything like £5 million. That would represent almost American levels of financial involvement in the democratic process.

Amendment No. 56 suggests what is perhaps the most obvious solution and may not be suitable for that reason. It is a probing amendment intended to discover what the Minister has in mind. The limit cannot be £5 million. Under the amendment, £5 million would be divided by the population of the United Kingdom and then multiplied by the population of the region in question. That would give us a logical and defensible approach to maximum spending limits.

I suspect that the Minister will say that the approach is over-simplistic and that he cannot endorse it. He will probably say that the Electoral Commission or a Minister will decide the appropriate limit for each region. Indeed, it has been suggested to me that there may be an argument for saying that in a small region a strictly pro rata limit would provide too small a sum for a campaign to be able to operate efficiently. I would be interested to hear the Minister's views.

A limit that was higher per head in one region than another would be subject to the same objections that I outlined in relation to amendment No. 55. Such a system would mean that there was a higher limit per head in the smaller regions, yet many people think that the smallest region is likely to be the first candidate for a referendum and most likely to agree to the imposition of elected regional assemblies, if any region is likely to do so. At the very least, the Government would have a presentational problem if they were to suggest that that region should have higher levels of permitted funding.

Amendment No. 64 relates to section 125 of the 2000 Act. I apologise to the Committee. The amendment mentions ''subsection (4)(b)''; it should read ''section 125(4)(b)''. That is not a printing error, but a drafting error on my part. The penultimate word of the amendment should read ''this'' rather than ''the''—that is a printing error. The reference is to the Bill, which will undoubtedly become an Act.

Section 125 of the 2000 Act permits a Minister to produce and disseminate information that is not caught by the financial limits that constrain other participants in the process. It sets a date of 28 days before the referendum as the cut-off date for the Government to participate in the process without financial constraint. We all know that the Government stand on one side of the debate. Under amendment No. 64, the appropriate date under the definition in clause 8, however it is set, would be the commencement date of the relevant period for the purposes of section 125 of the 2000 Act. The amendment is simply an attempt to level the playing field by cutting the Government off at the beginning of the period, and not allowing them to continue campaigning without financial limit until 28 days before the referendum. It is not an attempt to muzzle the Electoral Commission in its role under clause 7 to promote and to encourage voting by disseminating neutral information. Its purpose is to stop someone in a ministerial capacity from participating in the campaign with a stream of publicly funded and financially unlimited information. That is an entirely reasonable proposition to put before the Committee.

Mr Nick Raynsford (Minister of State (Local and Regional Government), Office of the Deputy Prime Minister; Greenwich & Woolwich, Labour)

I shall take the three amendments in sequence, as did the hon. Member for Runnymede and Weybridge, and explain why they are either unnecessary or undesirable.

Amendment No. 55 seems to be designed to ensure that the same arrangements for the conduct of referendums on elected Assemblies apply in each of the eight regions of England. I can reassure the hon. Gentleman that the Government's broad approach is to have as uniform a set of rules as appropriate governing all referendums under the Bill and those that fall within part 7 of the 2000 Act. Indeed, the Lord Chancellor's Department is in the process of producing a generic conduct order, to which the hon. Member for Kingston and Surbiton referred, which will cover the conduct not only of referendums on elected Assemblies, but all other referendums under the PPERA. A draft of the conduct order is being discussed by an Electoral Commission working group and will go out to wider consultation in the new year. The draft order will be laid before Parliament and subject to debate in both Houses.

We need to retain the flexibility to make different provision for referendums held under the Bill, possibly over quite long periods. Several hon. Members have made the point that because this will be permissive legislation that will allow regions to move at the speed they determine, the periods may be quite long.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

To make the position clear and to ensure that the Minister does not inadvertently mislead the Committee, this will be permissive legislation that will allow regions to proceed at the pace determined by the Secretary of State, not the regions.

Mr Nick Raynsford (Minister of State (Local and Regional Government), Office of the Deputy Prime Minister; Greenwich & Woolwich, Labour)

The hon. Gentleman is absolutely right to say that the Secretary of State will determine the pace, but he will do so after taking soundings to inform him of the view of each region. I shall call that 27a score draw and move on because I do not want to get into dispute with the hon. Gentleman on that point.

We have seen a significant development in the way in which people have voted in recent years with pilots on all-postal voting. I know that that upset the Liberal Democrats but it has been very successful in increasing turnout significantly in many regions. We have seen the beginning of pilots on e-voting and it is not beyond the bounds of possibility that we shall see significant further developments in making it easier for people to vote by a range of options. Should we really close the possibility of exploring some of those options at a future date simply because we believe that there should be no difference in the approach adopted in any one region compared with another? It is precisely for that sort of flexibility that the provision is necessary. There is no sinister objective. I have made it clear that our overriding policy is to be as consistent as possible, but we believe that that necessary flexibility is both appropriate and consistent with the overall objective of ensuring that we do all we can to encourage turnout and participation, and to make it easy for people to vote.

Mr Gary Streeter (South West Devon, Conservative)

What kind of change might flow from the lessons learned in a referendum held in one region into a referendum held in another? I accept that such changes may not be dramatic, but can the Minister give examples?

Mr Nick Raynsford (Minister of State (Local and Regional Government), Office of the Deputy Prime Minister; Greenwich & Woolwich, Labour)

I can give the hon. Gentleman one obvious example. Let us assume, as is entirely possible, that the local government pilots on electronic voting demonstrate that there are considerable advantages in offering people the option of voting by internet, cellphone and other electronic means, in addition to other voting methods. We are conducting a series of pilots—we ran some last May and we shall conduct more next May—and we have received a very positive response. Some 60 or more local authorities put in submissions seeking opportunities to run pilots next May. If those pilots were to demonstrate that there were clear advantages in giving such options, that they were popular and successful and, above all, that safeguards were in place to ensure the integrity of the poll—that is what the Electoral Commission, in particular, will want to see—the Electoral Commission might advise us that, in a future referendum, it would be wise to give people such options, even if it had not been done previously.

I cannot see any real objection to that. I can understand why the Liberal Democrats might oppose it, because they seem to be completely wedded to the idea that people have to go in person to a polling station to vote and that any other form of voting is potentially open to abuse, but I cannot believe that Conservative Members would seriously argue that such options should not be made available. I hope not.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

We seem to be slightly confusing two issues. We tabled the amendment to try to ensure that generic referendum orders do not make different provisions for different parts of England, in the way that legislation often contains different provisions for different parts of the United Kingdom; a different 28regime for Northern Ireland, for example. Will the Minister give me the simple assurance that no order that is made—I accept that, over time, generic orders may contain different provisions—will discriminate between different regions of England?

Mr Nick Raynsford (Minister of State (Local and Regional Government), Office of the Deputy Prime Minister; Greenwich & Woolwich, Labour)

I can give the hon. Gentleman that assurance. We do not seek to discriminate in any way between regions. We seek a degree of flexibility to allow the adoption of new processes that may become available and on which we would seek advice from the Electoral Commission. It is an entirely sensible and practical proposal, and I hope that I have allayed the hon. Gentleman's concerns.

Amendment No. 56 would amend schedule 14 to the PPERA so that, for referendums on elected assemblies, the financial limits in paragraph 1(2) of schedule 14 would be applied, multiplied by the fraction of the UK population that the population of a region constitutes. I have some sympathy with the principle behind the hon. Gentleman's argument, but I think that he has misunderstood the provisions in schedule 14. Paragraph 1, which his amendment would amend, relates only to UK-wide referendums. In paragraph 2, schedule 14 already contains provisions for referendums held in particular parts of the UK. It empowers the Secretary of State to prescribe by order the limits that should apply, following advice from the Electoral Commission, and Parliament will be able to scrutinise the draft order.

Since I agree that population levels in each region are one relevant factor in setting such limits, I ask the hon. Gentleman to accept that it is common sense that those levels cannot provide the complete picture regarding the appropriate action to take. Other factors must be considered. For example, what about the relative proportion of the population in each region in rural versus urban areas? That factor was identified by Opposition Members in previous debates. What about the different types of media that are available to participants in each region, and, indeed, the overlap of media between regions, which might have a differential impact in some cases? Again, that was raised in earlier debates. Are there any economies or diseconomies of scale that should be taken into account? Some people, not necessarily myself, might argue that it is desirable to set the same limit in respect of every region so that there is at least a crude parity. Those are all arguments that might be deployed with some conviction.

I want to stress above all that any order that is made has to take into account the advice of the Electoral Commission on the appropriate limits, and when making an order we are obliged to lay before each House a statement not only of our decision, but of any reasons for departing from the advice given to us by the Electoral Commission. If we had not followed that advice, we would be absolutely transparent about it and each House would have an opportunity to debate and challenge that. That is the right way forward. There are factors other than population, as I hope the hon. Gentleman accepts, and some degree of flexibility is therefore appropriate. However, it must be applied transparently.

Finally, turning to amendment No. 64, the Political Parties, Elections and Referendums Act 2000 sets a period of 28 days before the referendum date during which the Government may not issue material covered by section 125 of the Act. That is the ''relevant period''. The sort of material that the Government would want to issue in the case of a referendum on establishing an elected regional assembly would include a factual statement of the powers and responsibilities of an elected assembly and a description of the proposed restructuring of two-tier local authority areas.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Does the Minister accept that any apparently factual statement of the powers and responsibilities of an elected regional assembly would be highly subjective if Parliament had not passed an Act for the establishment of such elected regional assemblies at the time such a statement was issued?

Mr Nick Raynsford (Minister of State (Local and Regional Government), Office of the Deputy Prime Minister; Greenwich & Woolwich, Labour)

No. Having been involved in the introduction of the Greater London Authority, in which we followed exactly the same procedure—it was also followed for Scotland and Wales—I do not accept that. The necessary consequence of holding a referendum before legislation is introduced is that people must be informed about the Government's intentions, based on a White Paper in each case, before they cast a vote. The Government have a responsibility to inform people of what is proposed if they vote in favour of the option. If they do, legislation will be introduced to give effect to the policy. The objective is to provide factual information.

If Parliament had agreed a referendum order setting a referendum period longer than the minimum 10 weeks set out in the PPERA, there might be a window between the times at which designated organisations are selected and the beginning of the relevant period. Clause 8(3) of the Bill sets periods after which the Electoral Commission may take action to promote awareness among voters about the arguments for and against the referendum question, in the absence of designated campaigns.

Amendment No. 64 would start the relevant period immediately after those periods even if the time to the referendum were longer than the 28 days established in the PPERA. A longer period could arise either if the overall timetable were longer than 10 weeks or, within a 10-week timetable, if the ''appropriate day'' turned out to be the 29th day envisaged in clause 8(3)(b). I shall not go into the details of it, but it would be a necessary consequence of the timetable.

The amendment would have the effect of shortening the period in which the Government could make their factual statement. We believe that the Government's statement should be issued near the time of the poll so that voters can be aware of it when considering how to vote. We also recognise that it is right to limit the types of material that can be published in the immediate run-up to a poll. We believe that the PPERA got the balance right in setting 28 days as the cut-off period, and we do not see any reason for departing from it.

If the hon. Gentleman takes into account the 28-day safeguard, as well as my guarantees that we will use the period to provide factual information on matters that the electorate should be informed about and my attempts to allay his concerns that we would use the period for partisan campaigning purposes, I cannot see why there should be any objection to the clause. I urge the hon. Gentleman to withdraw amendment No. 55.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am pleased to say that I am satisfied with the Minister's comments. All he needed to say was that an order would not discriminate between regions. We will want to watch very carefully what happens in practice, but we accept that, over time, it may be necessary for the generic approach to referendums to change. However, such change would have to be on some patently objective basis. We cannot have change with each referendum, depending on the Minister's perception of the likely outcome. As he gave a clear assurance that there will not be an order that distinguishes between different regions of England, I shall not press the amendment.

On amendment No. 56, I was pleased to hear that the Minister accepts in principle that the issue of appropriate limits for regions must be addressed. He is probably the leading expert on being able to think of the largest number of different elements in an equation to come up with a sum of money. That, in the end, creates such an obscure cloud that nobody has the faintest idea what number will drop out of the bottom. He rattled off a few elements such as sparsity, although he did not call it that. We did not hear about deprivation, but I am sure that if he thinks about it, he will want that in there.

We have also heard about the diseconomies of scale, which he called, in another context, the cost of being in business. All that may sound logical, but the problem that the Minister will have in terms of presentation is that the list that he has rattled off is likely to lead to a higher limit per capita or per elector in the north-east region than in other regions; for example, the south-east. That is a likely consequence of what the Minister has said.

Although the Minister's motives are undoubtedly the purest, he could be open to misinterpretation. It is important that the limits are seen to be set objectively, and not fiddled to allow well-funded, powerful campaigns for whichever side to deliver their spending in a region. The PPERA allows organisations to be designated only if there is a designated organisation for each side of the question. It does not require the Electoral Commission to designate organisations only if it is confident that the organisation on each side will be able to raise equal funding. It is possible that in some parts of the country there will be a clear imbalance in access to funding.

Mr Nick Raynsford (Minister of State (Local and Regional Government), Office of the Deputy Prime Minister; Greenwich & Woolwich, Labour)

Although the hon. Gentleman is right, I hope that he acknowledges that the provisions ensure that there is equality in the grants made available to the yes and no campaigns.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Of course, that is the case, but the Minister earlier acknowledged that the grant is expected to be a small part of total campaign funds. We are labouring under the difficulty of not having yet seen how the grant will be calculated or how relevant a factor in the whole equation it will be. I shall not press 31the amendment, but these issues must be carefully watched. The Government must consider how they will handle them to ensure that there is no suspicion of partiality in any decision.

I cannot be as relaxed about what the Minister said on amendment No. 64. First, he made all sorts of caveats: he said that the amendment was not necessary provided that the Government acted in an open, transparent and non-partisan way and did not use publicly-funded information to promote one side or the other of the argument. The Minister must forgive me if I am a little cynical about the Government's record on that. I draw the Committee's attention to the proposed preamble in clause 2. I presume that the Government will say that that is helpful, objective information.

That preamble refers to an assembly that is not provided for anywhere in law, so the Government are entirely second-guessing here what Parliament might be predisposed to do. We should bear in mind that this referendum will be held towards the end of this Parliament so it will almost certainly not be the present Government who legislate for regional assemblies, even if they do go ahead. It is proposed that the preamble should say:

''An assembly would be responsible for a range of activities that are currently carried out mainly by central government bodies''.

The Minister will be aware that that statement is highly contentious, not an objective statement of fact. Many people in local government believe that the role of an elected assembly will be to suck up, to a considerable extent, powers from local government. We do not really know about that. The Minister can say no, that will not be the case and I can say yes, it will, but neither of us knows because there is no legislative framework for the creation of regional assemblies. We have only indications of the Government's intentions.

With the greatest respect to the Minister, who is holding up his White Paper, that is not legislation. It has not been scrutinised by the House of Commons nor, perhaps more relevantly at the moment, by the House of Lords. It would be disingenuous for the Minister to suggest that the mere production of a printed document by the Government means that there is an objective and defined framework for the creation of regional assemblies or any other bodies. I suggest to the Minister that it is very unlikely that the assertion that the literature put out by the Government in the run-up to a regional elected assembly referendum is wholly factual will be universally accepted, and not disputed by the parties to the debate. It might happen, but I should be fairly astonished if it did. I am prepared to wager a small amount of money that someone will challenge the objectivity and factual nature of the Government's literature. Amendment No. 64 therefore raises an important issue.

I have recognised the drafting defect in the amendment and there is also a printing error. It would therefore be inappropriate for me to press the amendment as printed to a Division. However, we will want to come back to the issue that it raises and consider it further. For the Government to be able to put out information without limit at a time when the other parties are limited does not suggest a level playing field. It seems reasonable to suggest that the Electoral Commission might put out certain kinds of information and I take it that clause 7 allows that.

I thought that when we created an Electoral Commission we did away with the problem of a Government purporting to put out factual information as a public service when it was actually a participant in a debate. I thought that the commission was created as a body that could act objectively in the public interest, disseminating information about voting and so on. Having created that new quango, the Electoral Commission, we now find that the Government are also expecting to put out information in the name of a Minister, which just gives an extra tier of jeopardy. We shall need to return to that.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr John Butterfill (Bournemouth West, Conservative)

Order. I remind right hon. and hon. Members of rule No. 91 in the Rules of Procedure for Standing Committees, which states that it is not permissible to use computers in Committee. That ban extends, I am afraid, to personal organisers and those that incorporate mobile phones because nowadays it is impossible to distinguish between any of them. So I just remind Members of that rule.

Question proposed, That the clause stand part of the Bill.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I am sure that the Minister will have eagerly noted Standing Order No. 90 whatever-it-was and no doubt the Government—

Mr John Butterfill (Bournemouth West, Conservative)

Order. It is not a Standing Order, it is a rule of procedure under the authority of the Chairman of Ways and Means.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Thank you, Mr. Butterfill.

Mr John Butterfill (Bournemouth West, Conservative)

Order. And, of course, it does not apply to Clerks.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

How very interesting. I would like to think, Mr. Butterfill, that such a rule under such great authority was immune from Government tampering, but I fear that it may not be. The e-revolution may yet reach the Committee Room, but it will probably not, I suspect, before the end of this Committee's deliberations.

I shall explore just two issues with the Minister. Will he tell the Committee what subsection (3) means? Why should we be comfortable with the inclusion of that subsection? Secondly, will he explain why subsection (1), which allows Ministers extraordinary discretion, is necessary? On reflection, we have probably dealt with that in the course of discussing subsection (2), but if the Minister could deal with subsection (3), I would be grateful.

Mr John Butterfill (Bournemouth West, Conservative)

Order. It would be helpful to me if hon. Members seeking to catch my eye could rise, rather than giving me a nod or a wink.

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I shall make sure, Mr. Butterfill, that in future I do more than give my customary nod and wink, by giving you a proper indication of my intentions not by electronic means, but by the old-fashioned method of standing in my place.

Subsection (1), which the hon. Member for Runnymede and Weybridge has already discussed in substance, ensures that a conduct order under section 129 of the Political Parties, Elections and Referendums Act 2000 applies to a referendum on whether to establish an elected regional assembly. Subsection (2) provides that it is immaterial whether the conduct order comes before or after the Bill is enacted. Subsection (3), which is of particular interest to the hon. Gentleman, ensures that official referendum documents—such as the notice of poll or the ballot paper—do not have to, for example, state the name and address of the printer or the publisher, as might otherwise be required by section 125 of the 2000 Act.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Does that exemption extend to factual information, as the Minister called it, published by the Government before the 28-day lockout?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I am afraid that I cannot answer that, although information is winging its way to me, I think, to state that it will not. Subsection (3) ensures that there will not be a requirement to identify the promoter and publisher of documents such as the notice of poll and ballot papers, which are required under the 2000 Act. Subsections (4) and (6) are concerned with the definition of enactment, and how it should mean the same in this Bill as in part 7 of the 2000 Act. Subsection (5) states that the 2000 Act means the Political Parties, Elections and Referendums Act 2000. Subsection (7) ensures that the provisions that I have just mentioned apply only to part 1. I hope that that is helpful.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.