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My Lords, I beg to move the second Motion standing in my name on the Order Paper.
I hope that this one will be conducted with equal despatch! This order prescribes the maximum amounts of election expenses of candidates and their agents, and third parties, in elections for the mayor of London and the London Assembly. In my opinion, the draft order is compatible with the European Convention on Human Rights.
The draft order sets out three separate limits; for mayoral candidates, Assembly constituency candidates, and for parties and independent candidates contesting the London-wide list, reflecting the unique voting system that we have in the GLA. These limits are: £420,000 per mayoral candidate; £35,000 per candidate contesting an Assembly constituency; £330,000 per party or independent candidate contesting the London-wide list.
These orders were the subject of substantial consultation with the political parties in December. We listened carefully to the points that they raised about the level of the limits and significantly reduced our original proposals for the mayor and the London-wide list from the levels that we had originally proposed, which were £990,000 and £495,000 respectively. That was because the consultees in other parties considered them to be too high and likely significantly to disadvantage smaller parties in particular. The new limits provide for a more level playing field for candidates, while at the same time allowing candidates and their parties the freedom to put their message across to the electorate.
The limits can be broadly compared to expenses limits in other relevant regimes. The expense limit for mayoral candidates and parties contesting the London-wide list are broadly derived from the figure of £30,000 per parliamentary constituency used in the Political Parties, Elections and Referendums Bill as the building block for calculating the national spending limits which we are proposing for political parties. The Assembly constituency limit is broadly equivalent to the sum of parliamentary constituency limits within an Assembly constituency area. Those limits are enough to enable parties and candidates to fight effective campaigns at either the London-wide or constituency level, while at the same time not allowing their spending to become unacceptably high.
When the order comes into force, GLA candidates and parties contesting the London-wide list will not be permitted to spend more than the relevant prescribed limit in respect of their election expenses. Election expenses are defined in the Representation of the People Act 1983 as,
"whether before, during or after an election, on account of or in respect of the conduct and management of the election".
Spending before 14th December 1999, the date when the relevant provisions in the GLA Act were commenced, is not caught by the provisions of the Representation of the People Act and hence would not, in our view, count towards the limit.
Article 2 of this order prescribes the maximum expenditure which a person other than a candidate or his agent, that is a third party, may incur at such elections. Those limits are: £25,000 per third party supporting or opposing mayoral candidates; £25,000 per third party supporting or opposing London-wide list candidates, including independents; and £1,800 per third party supporting or opposing an Assembly constituency candidate. These limits are derived from the formula that we intend to bring forward by amendment to the Political Parties, Elections and Referendums Bill to limit third party spending in local elections.
During the debate on this draft order, the other place expressed concern that these limits were high. I recognise that they are indeed high compared to the current limit of £5 set out in the Representation of the People Act 1983, but I believe that they are justified both in the light of the Bowman judgment in the European Court of Human Rights, in which the court ruled that the £5 limit constituted an unjustifiable restriction on freedom of expression, and to ensure that third parties are able to put their case across to the electorate. They are the main points of this order.
Because of the procedure outlined by my noble friend the Chief Whip, I need also to refer briefly to the election rules which are referred to in the Prayer of the noble Lord, Lord Mackay of Ardbrecknish. Those rules, which are under the negative procedure, deal with the nuts and bolts of the election, such as the time by which nominations have to be submitted, how the public know when and where they can vote, how the polling station functions, and how the counting of votes is organised. If there are no rules, the elections cannot go ahead. I make that point in view of extraneous comment outside this Chamber. Except where necessary--for example, to provide for new voting systems in London--they follow exactly the patterns which have been set by all election rules made in the past 50 years.
As with the order, we have consulted with the political parties in producing these rules and with those who are professionally involved in running elections, and we took account of the views received in those consultations before we laid these rules before Parliament. The rules, therefore, are not controversial. Representatives of all parties have been consulted and have raised no objection to them. I trust that the noble Lord, Lord Mackay, and others who may speak in this debate will bear that in mind.
I need to say one other thing. This is a straightforward proposal under provisions in the GLA Act. This order and the election rules follow the normal procedure in drawing up the election rules and expenses rules under the legislation in local authority elections. I had my lunch interrupted on Sunday and my breakfast interrupted today by the dulcet tones of the noble Lord, Lord Mackay of Ardbrecknish, who indicated, slightly to my astonishment, that the Opposition intended to move against this order and these rules. In addition, I have had an indication that the Liberal Democrat Party might also be tempted to support this move, not on the ground of anything contained in these orders--as I have said, these have already been agreed by the parties--but on the ground of an entirely extraneous matter that is not and could not be contained in these orders. I therefore suggest that, as we move to the joint debate for which my noble friend the Chief Whip has indicated the procedure, we should bear in mind that any vote that is taken today will not be a vote on what has been put before this House, it having been passed in another place; it will be on something quite different. Before deciding whether and how to vote tonight, your Lordships should bear that in mind. I commend the Motion to the House.
rose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before it on 3rd February and calls on Her Majesty's Government to lay an order which provides that candidates are allowed one freepost delivery per household".
My Lords, as the noble Lord, Lord Whitty, has just explained, these orders for the London mayoral election and the GLA elections lay down rules which are largely based on our parliamentary rules for elections in Westminster and Europe, the Assembly elections that have been conducted recently in Wales and Northern Ireland and, of course, the Scottish parliamentary elections, where the top up member system to be used in the London Assembly was also used.
One important aspect is missing. It is an important aspect which, as the noble Lord, Lord Whitty, has pointed out, has led me to move this amendment and the Prayer and which has led the Liberal Democrats to say that they are absolutely with me on this issue. Unlike all the election candidates for the elections that I have mentioned--the House of Commons, the European Parliament, the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly--the London candidates will have no access to freepost. Candidates will not be able to send an election address to each elector, or even to each household. A much more important point is that each elector will not receive through the post a communication from the candidates informing them of the election and informing them of the candidates who are seeking the support of the voters.
We heard last week from the Minister, Keith Hill, in the other place and from the noble Lord, Lord Bassam of Brighton, in your Lordships' House why the Government had decided not to make the freepost delivery available. Rather briefly, we have also heard an argument from the noble Lord, Lord Whitty, today.
We have to go back to the arguments we heard in your Lordships' House last week from the noble Lord, Lord Bassam of Brighton. They were also deployed by Mr Keith Hill when moving these two orders in the other place. First, we are told that it is too late to raise the issue; that it should have been raised during the passage of the Bill and it was not. That statement is wrong. The issue was raised in the Standing Committee in the other place on 28th January 1999. The Minister's uninformative response was:
"The right honourable gentleman raised a different issue on whether a free mail shot should apply, as in parliamentary elections, or whether it should not, as in local government elections. Perhaps he has raised one more issue".
And that was that! We might have a debate about the meaning of that answer or non-answer, but the idea that the issue was not raised is not true.
Equally, freepost was not an issue during the passage of the Scotland Bill or the Government of Wales Bill. And after those Bills became Acts, no one suggested that just because the issue was not raised during their passage through Parliament no freepost should be given in Scotland and Wales. So that point is entirely bogus.
Then we have the principal point; the local government argument. The argument is that these are local elections and we do not have a post at local elections. I looked back at what the noble Baroness, Lady Hayman, said when as Minister she introduced the Greater London Authority White Paper on 25th March 1998. To be fair, she started by saying:
"Today we are publishing our detailed proposals for a radical new type of local government".
But then she went on to say:
"The new authority will have new powers devolved from central government ... This is another step in our programme of constitutional reform. We are establishing new devolved assemblies in Scotland and Wales"-- a read-across to Scotland and Wales--
"We are now taking a significant step in decentralising government by establishing these new arrangements in London ... The mayor of London will be a powerful figure, with an electorate of over 5 million voters--more than any other individual politician in this country ... [He] will control a large budget--currently more than £3 billion".--[Official Report, 25/3/98; col. 1278.]
That is what the noble Baroness said. Your Lordships will notice that the budget was £3 billion and not the £30 million mentioned by the noble Lord, Lord Bassam of Brighton, last Monday.
I now draw your Lordships' attention to the words of the Deputy Prime Minister, which are to be found in Commons Hansard on 14th December 1998. He said--and he must have been reading it out because the English is quite good--
"The proposed authority is not similar to any local government authority as we know it. It will be a new type of city government, with a city executive and elected mayor ... Therefore, it is fair to say that it is not the normal local government structure".--[Official Report, Commons, 14/12/98; col. 624.]
Exactly, my Lords! London already has local government and local government elections in its 33 boroughs. They will continue. The London-wide elections are for a new form of government, not "local" as we have traditionally known them.
As we have traditionally known council elections, there is no freepost, but equally there is no deposit. However, your Lordships will find that under these orders and the Greater London Authority election rules, there are deposits in these London elections. So they are not as local as the Government are trying to make out. The deposits are £10,000 for the mayoral candidates; £1,000 for a first-past-the-post candidates; and £5,000 for each top-up party. Deposits are what we have in Westminster, in the European elections and in the elections in Scotland, Wales and Northern Ireland; and with deposits goes a freepost. The Government cannot have it both ways.
Of course, there is a huge electorate in London; bigger than any other in the country. Five million people will elect one person. Nothing--nothing--comes within the same league as such an electorate and election.
One thing surprised me. At the end of last week the Home Office announced the pilot schemes. Noble Lords who have been following the Representation of the People Bill will know that there are to be pilot schemes of various kinds to try out ways to increase turn-out at local elections this coming May. Local authorities have put in bids for them. One local authority which has put in a bid, and had it accepted, is Watford, and the experiment in Watford is a freepost facility.
It goes further than that because if it were a success, under the Representation of the People Bill the Government would have the power to roll out the same freepost facilities to local governments throughout the country and by secondary legislation.
Will not the noble Lord accept that the Watford experiment, if such it be, is possible only under the provisions of the Bill which is still before the House? The noble Lord is asking us to produce secondary legislation for which we have no primary power. Not only could it not be under the powers under which these orders are proposed, but there are no primary powers for us to introduce a freepost. That is the point that I am making and it is the point which the House must seriously consider in making a judgment on the noble Lord's Motion.
My Lords, if that is the case, I am surprised that the noble Lord, Lord Whitty, did not make the point in his introductory speech. But even if it is the case, I offer the noble Lord a vehicle. The Representation of the People Bill has its Report stage next Tuesday. Last week, we debated an amendment and we and the Liberal Democrats used it as a means of putting down a marker that we were serious about the issue and the Government could do something about it in that Bill. If they need a primary vehicle, it is there and will be passed in good time. So that does not stand up as much of an argument!
My Lords, I am puzzled about that, because I cannot remember any such powers in the Scotland and Wales Bills, and I spent a lot of time on them. I suspect that there are provisions elsewhere in the various Representation of the People Acts which could be used if the draftsmen had used their ingenuity and if the Government wished. But I have given the Government the opportunity; the Representation of the People Bill is before Parliament and we do not need to argue this issue any longer. The vehicle exists because we can do something about the problem in that Bill.
Last week, the noble Lord, Lord Bassam, made some amazing claims about the cost of this. First, he conjured up 40 candidates for mayor and a cost of £30 million; frivolous candidates will rush forward in their tens in order to take advantage of the freepost facilities for a deposit of only £10,000 plus the cost of printing the leaflets. There is no evidence that that has and will happen. Let us take the European elections which were held throughout Scotland. Did anyone pay a deposit and stand in those elections to gain freepost advertising? Did freepost come through my letterbox advertising the local haggis, tatties and neeps restaurant and the local kilt outfitter? It did not; nor did such things happen in London when the European elections were held throughout the city.
My Lords, I am grateful to the noble Lord for giving way. I agreed that that did not happen in the most recent European elections, but perhaps he will cast his mind back to those elections in 1994. In London North, there was a candidate whose main claim to fame seemed to be that he ran, I am sure, a good driving school at the bottom of the Stroud Green Road, which is near to where I live. That was his claim to fame as a candidate for the European Parliament. He obtained freepost and publicity on the back of it. That is precisely the kind of candidate that the Government are talking about.
My Lords, if the noble Lord was so worried about that, why did he not persuade his colleagues not to have a freepost at the recent European elections? He does not seem to have tried to lock the door after that horse had bolted, so why try to do so for the London elections? That does not work, either.
I turn to the cost. The European parliamentary elections freepost cost £21.5 million. That was for the whole of the UK. In Scotland, the total cost for two drops--one for the first-past-the-post candidate and one for the top-up list--cost about £4.5 million. I extrapolate that to about £6 million for London. Therefore, I am afraid that the argument is bogus.
If the Government were really worried about frivolous candidates, first, they would have produced more than only one example and, secondly, they would have done something about it in the elections in Scotland, Wales and Northern Ireland, the last European elections and--dare I say it?--they would now be doing something about the next series of elections.
In any case, although I am not an expert on this, I understand that the Post Office has some pretty firm rules about what it takes as election addresses and what can appear on the freepost leaflets. I do not believe that the argument about cost and frivolous candidates works, especially when we have it in other elections. The Government spent money on the freepost because they knew that in Scotland, Wales, Northern Ireland and the European Parliament it was the right thing to do. It is the way to increase interest in elections, to increase turn-out, and to ensure fairness between the parties--all the reasons that led the post-war Labour government to pass the 1948 Act introducing the freepost. It is just as well that the current lot were not in power then or there would still not be a freepost.
But I should not be surprised: fairness has not been at the forefront since 1997 as regards elections. In the Scottish referendum there were two questions instead of one in order to try and ensure the result. The Welsh referendum was held a week later to try to persuade the Welsh to follow the Scots. There was the closed list for the European elections--I had better not remind your Lordships about that--in order to keep control. There was the method of voting for the Welsh First Minister which was gerrymandered to ensure that Alun Michael got the job, but not Rhodri Morgan who was the choice of the Labour membership in Wales. Just last week there was the same gerrymandering to make sure that Ken Livingstone--perhaps I should not say that name too loudly in case it disturbs the Government--the choice of the Labour members in London, did not win that election. Here we are again. It is all so logical. You fix the Labour candidate by fixing Livingstone; then, if that is not enough and just in case he stands, you fix him again by having no freepost and then you threaten that if your Lordships just say that they are a bit worried about it, you fix the House of Lords.
My Lords, the noble Lord is always so courteous in giving way. I wonder whether he would care to add to his history of democratic events the destruction of the London County Council by a Conservative government because Labour kept on winning in London. Then there was the destruction of the Greater London Council because the Conservative government again thought that the Greater London Council was electing a Labour administration too often. Would the noble Lord care to add those to his list?
My Lords, I was going to turn to that and say that that is not an argument against not having freepost in these elections. If the noble Lord believes that it is such a terrific thing and is so glad to see it coming back to London, he should want the fullest participation and that involves a freepost.
I want to examine the argument that somehow your Lordships' House has no right to deal with these matters. I refer first to the convention against voting on secondary legislation. It was not a convention, but an agreement between the Labour and Conservative Front Benches. It never included the Liberal Democrats, as no doubt they will tell us, and it never included the Cross Benches.
Secondly, and much, much more important, is the fact that this is a new House. It is the House that Tony built. It is the House governed by the Jay doctrine. Perhaps I may remind your Lordships of what the noble Baroness the Lord Privy Seal said in the House Magazine on 27th September last. She said:
"The House of Lords ... will be more legitimate, because its members have earned their places, and therefore more effective".
She went further in the Parliamentary Monitor in November of that year when she said:
"A decision by the House not to support a proposal from the Government will carry more weight because it will have to include supporters from a range of political and independent opinion. So the Executive will be better held to account".
If those words from the noble Baroness mean anything, I hope that we shall have no complaint from her if a combination of Conservative, Liberal Democrats, Cross-Benchers, and I even hope a few Labour Peers, combine to hold the executive to account. That is what the noble Baroness wants of her new House and I venture to suggest that is what she will get later this afternoon. Is it too much to ask the Government to listen to what your Lordships are saying?
"If the House of Lords knocks the issue back to the Commons, Ministers should not argue that it is just another example of the peers versus the people. In fact it will be the Government versus the people".--[Official Report, Commons, 15/2/00; col. 885.]
I could not have put it better myself. Even at this late stage I hope that the Government will back down and put some sensible proposals to us. I beg to move.
Moved, as an amendment to the Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before it on 3rd February and calls on Her Majesty's Government to lay an order which provides that candidates are allowed one freepost delivery per household".--(Lord Mackay of Ardbrecknish).
My Lords, the freepost in parliamentary elections goes back a very long time. In fact, it goes back further than 1948. It was introduced by Section 33 of the Representation of the People Act 1918, following a Speaker's Conference in 1917. I should like to quote from a speech made in the debate on that section in the other place by Herbert Samuel, a future leader of the Liberal Party. He said:
"The greatest danger in the working of a democracy is the indifference of the elector, and in the laudable desire to limit expenditure and electoral activities in various directions we may possibly overshoot the mark, and find, in future, that we may get much too small a portion of the electorate taking an interest in the election, and that the electorate may not be fully informed of the issues".--[Official Report, Commons, 15/8/17; col. 1297.]
Those words are at least as true today as they were when they were uttered over 80 years ago.
We need a freepost for the sake of democracy. Candidates must be able to get their message over to electors. There are, of course, measures to eliminate frivolous candidates. Substantial deposits are required for the London elections. Candidates for mayor must get the signatures of 10 supporters in each London borough. But the elections will be contested by serious candidates of minor parties. Certainly the Greens, who won a London seat in the European elections, may very well do so again.
Without the freepost, candidates, particularly from the minor parties, cannot get their messages across. The electoral areas are enormous. For the mayor and for the London-wide assembly candidates, the electorate will comprise 5 million people. For the 14 assembly constituencies, the average electorate will be more than 350,000. As I pointed out in the debate on the Representation of the People Bill, more and more Londoners live in blocks of flats with locked doors and entryphones and more and more Londoners have ex-directory telephone numbers. These people cannot be reached by the ordinary methods of canvassing and leaflet delivery; neither can we rely on media coverage of the election. Even we in the Liberal Democrats, with an excellent candidate, control of three London boroughs and strong representation in many other London boroughs, get hardly any media coverage. What hope do the minor parties have of getting a mention, let alone an explanation of what they stand for?
Freepost is the best method that we have of making sure that candidates can get their message across to any elector willing to go to the trouble of picking a leaflet off the floor by the front door and reading it.
But the importance of the freepost is not due only to the vast size of the electorate and the inaccessibility of electors. As the noble Lord, Lord Mackay of Ardbrecknish, has pointed out, this is a new type of election. It is the first-ever direct election for an executive mayor. We have new systems of voting unfamiliar to the people of London for both mayor and assembly members. There are several parties in this election with a serious chance of winning Assembly seats. The parties need to tell the electors not only what their programme is, but how to vote for them when they get to the polling station.
If ever there was an election for which freepost was essential, this is it. Yet the Government propose to deny the electors of London the right to the information they need in order to make an informed choice. That is a matter of concern not only for the Opposition parties, but for many individuals in the Labour Party as well.
I refer to the debate on these regulations in the other place on 15th February, a week ago. Three of the most powerful speeches in favour of freepost came from the Labour Benches. They were made by Diane Abbott, John McDonnell and Audrey Wise. The noble Lord, Lord Mackay of Ardbrecknish, has already quoted one extract from Diane Abbott's speech. I should like to quote another:
"It is astonishing to some of us that the Government seriously propose not to have a free post in the election. It might technically be just another local authority election, but Ministers know full well that it is not the same. The number of people involved and the significance of the mayoralty mean that it is more than a local authority election".--[Official Report, Commons, 15/2/00; col. 885.]
Why do the Government object to the freepost? In part, of course, it is for the unspoken reason of the candidate whose name cannot be spoken, Mr Ken Livingstone. However, what the Government say is that it will be too expensive. In Committee on the Representation of the People Bill, the noble Lord, Lord Bassam of Brighton, spoke of a cost somewhere between £15 million and £30 million. That is absurd. The whole cost of the freepost in 659 constituencies for the 1997 general election was £20 million. As the noble Lord, Lord Mackay of Ardbrecknish, said, the cost for the 1999 European elections was £21.5 million. Head for head, that would work out at around £2 million for London.
I accept that that figure may be an underestimate because there may be more candidates for mayor in London than the average number of candidates for parliamentary elections. However, there would not be many more and certainly no more than are able to afford not only the deposit but the much more substantial costs of printing a large number of leaflets. On top of that, there are ways acceptable to us in which the cost could be substantially reduced. My noble friend Lord Rennard will explain those later in the debate.
In any case, the Post Office is a wholly owned subsidiary of the Government. The real cost is not that which the Post Office would charge a promotion business to distribute its junk mail, but the marginal cost to the Post Office in terms of additional overtime and perhaps temporary staff. That would add up to only a fraction of the Government's figures. Even if the cost does amount to a figure as high as £4 million or £5 million, trying to get democracy on the cheap is a very bad bargain.
The Government have said that a freepost might be abused. Did any abuse occur in the 1999 European elections when any independent candidate could have obtained a freepost to cover the whole of London? No. In fact, there could not be any abuse because, as my noble friend Lord Rennard pointed out in the debate last week, Post Office regulations prevent a freepost being used for advertising.
The Government then say that, of course, this is a local election and a freepost is not available for such elections. I detect here the hand of the Treasury. "Give way on London", says the Treasury, "and the parties will be asking for a freepost for mayoral elections in Birmingham, Liverpool, Newcastle or Eatanswill". There is a good case for saying that there should be a freepost available for mayoral elections in other large cities, but that is a different case from the one we are making today. The fact is that the London elections are not local elections; they are regional elections. London is not just a city; it is a region of its own. The 14 Assembly constituencies--the smallest unit in these elections--are five times the size of the average Westminster constituency. They are perhaps 100 times the size of the average local government ward. So these are not local elections in any ordinary sense.
The Government's position amounts to saying, "These are local elections and therefore local election rules apply." You cannot turn an elephant into a rabbit by calling it a rabbit; that is what the Government are trying to do. The final irony, as the noble Lord, Lord Mackay of Ardbrecknish, pointed out, is Watford. If these rules go through for 4th May this year, we shall have a freepost in the local elections for Watford but not for the metropolis of London. That is an absurdity if ever there was one.
The final argument put by the Government is that it is undemocratic and unconstitutional for your Lordships' House to reject these rules. I believe that argument to be the weakest of all. The Labour Party has produced a travesty of democracy in the way it has selected its candidate for the London mayoral elections and the Labour Government have thereby forfeited the right to preach to your Lordships' House about democracy.
I shall return to the speech made by Diane Abbott:
"Ministers should not argue that it is just another example of the peers versus the people. In fact, it will be the Government versus the people".--[Official Report, Commons, 15/2/00; col. 885.]
On 20th October 1994, your Lordships' House affirmed that it has unfettered freedom to vote on any subordinate legislation submitted for its consideration. That Motion was moved by the noble and learned Lord, Lord Simon of Glaisdale, who, I believe, intends to speak in today's debate. The power to reject secondary legislation must be exercised extremely cautiously. But it is a power that can and should be exercised when it is really needed.
Your Lordships' House was once described as, "Mr Balfour's poodle". Since the House of Lords Act last year, the present House is no one's poodle. In defence of democracy, your Lordships' House should be not a poodle, but a Rottweiler. That is why, on behalf of my party, I have great pleasure in supporting the amendment moved by the noble Lord, Lord Mackay of Ardbrecknish.
My Lords, I am grateful to the noble Lord, Lord Goodhart, for reminding us of the history of the freepost. However, the one obvious lesson to be learnt from that history is that, since the freepost was introduced--and most strikingly over the past 30 to 40 years--turn-out for elections has markedly diminished. Absurdly low polls were secured in last year's local and European elections. Furthermore, I have been reminded by my noble friend Lord Islwyn of the extremely low turn-out for the Welsh elections.
If we are really concerned about democracy, then we must conclude that it needs to be robust and generated by activity at a political level. I believe that we have reached the point where the freepost is seen as a replacement for positive political activity. In many wards and in constituencies, people see the freepost as an alternative to old-style canvassing. In many parts of Britain, that form of old-style canvassing in support of both national and local elections has diminished remarkably over the past two decades. If we are to secure higher turn-outs, we need people to knock on doors and deliver leaflets.
I have fought many elections over the past 30 years. However, over recent years I have found that the leaflet that is handed in to the elector at the door receives more attention than the one that comes through the letterbox with the post. The fact is that today there is a great deal more junk mail than used to be the case. The manifesto submitted by the postman tends to be thrown into the wastebin along with the junk mail that many of us deplore. I give way to the noble Lord.
My Lords, I have canvassed in London and I recognise the particular difficulties it can present. However, perhaps I may move on to compare London with other areas in a moment. It is worth the effort to canvass because one then secures the agreement of the elector to turn out and vote. A leaflet delivered in the post does not have that effect.
The noble Lord, Lord Goodhart, seeks to emphasise the difference between London and other parts of the country. However, he overlooks the fact that London is viewed with a degree of suspicion in other parts of the country. I give way to the noble Earl.
My Lords, I thank the noble Lord. Given the logic of his remarks so far, the noble Lord appears to be seeking to abolish the freepost altogether. Is that what the noble Lord is saying?
My Lords, I am suggesting that we are reaching a point where we should consider that very proposition in the interests of stimulating a more active democracy. It may be that there is a stronger case to be made for state aid for political parties so that the parties themselves are more invigorated and able to persuade others to be active, rather than merely relying on a postal service.
The difference between London and the rest of the country must also be considered. I accept that London covers a large area and has an extremely large electorate; indeed, it is almost of regional proportions. However, the fact remains that in the great cities, if London gets a freepost, then everyone else will demand it. There would be no justice in denying that. We would then be compounding the error, if error there is.
I do not understand how people can say, "Well, we'll accept a freepost in London and deny it elsewhere". However, if we accept it elsewhere, we shall be embarking upon a very costly exercise. I know that noble Lords opposite say that businesses and commercial interests may be reflected in increased numbers of candidatures. I am surprised that that is not so. However, I do not believe that the entrepreneurial spirit is quite dead in Britain; it is only a matter of time.
I recall an article written by Mr Livingstone a long time ago, perhaps when he was rather more left-wing than he appears to be at the moment. In it he suggested that the Members for the industrial north spent their time in the wine bars and other such establishments of Westminster. Perhaps it is only a matter of time before the wine bars that we were once supposed to frequent will decide to put up their candidates. However, the fact remains that we are talking about substantial amounts of expenditure which could grow considerably.
One reason for my intervention is that in my area a report from Ofsted was recently rather critical of the education authority. The criticism was based largely on the inadequacy of our school buildings. For years in the early 1990s I argued for greater provision for school buildings. The government at that time, who were so keen on cutting public expenditure, allowed my local authority very small sums for that purpose and a backlog of need developed quite markedly. Indeed, I recall pointing out to the Minister at that time that we were allowed to spend £1 per head on the maintenance of our school buildings while across the south of England and in London the sum of at least £8 per head was provided. If we are to quibble about providing decently for our schools but can lavish vast expenditure on an increasingly pointless exercise, then we are not acting with the wisdom expected of this House.
My Lords, I understand that this Government are in favour of encouraging democracy and greater participation in the election of representatives at all levels of democracy. I give them every benefit of the doubt in believing that that is true. Within limits, that involves encouraging people to stand whether or not they fall into the predestined idea of being born either a little Liberal or a little Conservative. The Socialist Party has already broken that tidy little one up, and it is open to other parties to do the same.
I speak on behalf of the Green Party, which already has a representative--a very able one--elected by London on a wide franchise as an MEP. We have a standing as a party in this city, as in this country, and I believe that we should be allowed and encouraged to take part in the democratic process. However, with an electorate of 5 million, the type of personal canvassing which the noble Lord, Lord Hardy of Wath, so rightly believed is good becomes very difficult with the limitations imposed by fax, answerphones and ex-directory numbers.
My party is putting up a candidate for mayor and candidates for the Assembly. We believe that we shall certainly succeed in getting Assembly candidates elected. That is done on a city-wide basis. We make no secret of the fact that there are parts of London where Green activists are thin on the ground. I am told by my party that one has to go quite a long way to find a member of the Green Party in Barking, for example. However, that does not mean that we should be denied the opportunity of canvassing those voters in Barking and persuading them to cast their votes for what we believe is an extremely good candidate and an extremely good party with an extremely good policy.
Unless we manage to overturn the regulations and make the Government think again on this point, the people who want to vote for the Green Party over a large part of London will be disenfranchised. I cannot believe that, ideally speaking, that is what the Government want. If they do not want it, the remedy is in their own hands. I hope that they will agree to give way on this important democratic point.
My Lords, the noble Lord, Lord Hardy of Wath, asked whether it was right that we should accept a freepost in London and deny it elsewhere. I believe that I am then entitled to ask whether it is right that we should have a freepost in Wales and deny it to the people of London. The truth is that his speech could have been made only by a representative of a large and powerful party wanting to deny the possibility of victory to those with fewer resources.
I, too, have fought elections and have won them. Indeed, I took particular offence at the remarks of the Leader of another place when she suggested that an unelected House is not entitled to vote on these issues. I took offence not least because, if I am in this House at all, it is, I suppose, because of an ability to win elections and then to have served my country in the other place. Therefore, I feel absolutely entitled to stand up and say that it cannot be right that a Government, with the resources of the media and the ability to get the headlines, should seek to deny this very modest tool to those from other parties who may seek to stand.
The irony of the argument is this: I suspect that in part the object of the exercise is to place yet another obstacle in front of Mr Livingstone. Yet Mr Livingstone is the one person who probably will not be affected by it because he will attract publicity anyway. I have no doubt that, freepost or no freepost, he will probably be as well known in London as any other candidate. It seems to me much more likely that, if he wants to stand, he will get himself better known than the rather curious choice of the Labour Party as a result of the machinations seen in recent weeks.
I opened The Times this morning and turned to the article by Peter Riddell. I always turn to him because I feel that he is the only political correspondent who will find something good to say about the Labour Government and their actions. When it is not apparent to those outside, it will be to Mr Riddell. He has a charitable disposition when it comes to the actions of the Labour Administration, although he seems rather less charitable about the person he describes as,
"the hapless and hopeless Lord Bassam of Brighton".
Of course, I would not be so unkind. However, Mr Riddell is normally charitable to Labour. Yet today he has written:
"Any second chamber worth the name should act as a check on the elected chamber on constitutional issues".
He then sets out the arguments almost as powerfully as they were advanced by my noble friend Lord Mackay of Ardbrecknish and from the Liberal Democrat Benches. He points out that if the Government are defeated tonight there will be plenty of opportunity to come forward with an alternative so that the elections can be held. He concludes:
"They should listen, to avoid making an even greater mess of the elections than they have".
I must say that I am not particularly concerned if they make a mess of the choice of their own candidate. If they do that, they are likely to get a bloody nose from the electorate.
As I observed in the House last night during the debate on Welsh affairs, I have a great respect for the ability of the British electorate to give any arrogant and inadequate government a bloody nose. I suspect that the electorate will do that and that the Labour Government will suffer as a consequence of their activities in recent weeks; and that they will suffer in London as they have already suffered in Wales where they were given a sharp lesson in the assembly elections and an even sharper lesson in the Ceredigion by-election.
But the fact that the Government will be taught a sharp lesson by the electorate is not an adequate reason for this House not to do its undoubted duty to protect the people of this country from the arrogance of an over-weaning Government who are determined to use their weight, authority, money and resources to win elections when the choice should be offered to the people on terms of equality.
My Lords, we are currently debating the expenses order to which the noble Lord, Lord Mackay, has moved an amendment. We are debating also the election rules.
During the speech made by the noble Lord, Lord Mackay of Ardbrecknish, he kindly permitted me to intervene to ask under what provision of the Greater London Authority Act a rule of the kind for which he is asking--namely, one asking for freepost delivery--is permitted. He may well know that there is no such provision. I do not refer to the debates which we have had on the Representation of the People Bill, or, indeed, to those which we may have next Tuesday on that Bill. But it seems to me that unless there is some provision in the Greater London Authority Act of which I have not yet heard which may permit the Government to do what he is asking to be done in today's debate, that part of the debate or the initiation of his amendment is misconceived.
My Lords, will the noble Lord explain why the Government did not recognise the weakness of the Scotland and Wales legislation which also failed to give the same powers in the same circumstances; and why they did not object to their own drafting?
Perhaps I may assist the noble Lord. The question of freepost was raised in Commons Standing Committee A on 28th January 1999 by my honourable friend Mr Davey and by Mr Eric Forth. The Minister's reply was:
"I have already given the Committee an absolute assurance that we will consult before we come forward with proposals. I have undertaken that those consultations will include both the hon. Gentleman's party and the principal Opposition party".
Under the circumstances, does the noble Lord agree that those remarks deserve the "William Waldegrave award for honest evasion"?
My Lords, in so far as I understand the noble Earl, I am sure that he is right.
I turn to the election rules which we are also debating at this time and refer to the new constitutional doctrine, as it seemed to me, enunciated by the noble Lord, Lord Mackay of Ardbrecknish. He indicated by reference to speeches by my noble friend Lady Jay of Paddington that whatever conventions there may have been--I hope I am not misconstruing what the noble Lord said--this is a new House. That phrase was certainly used. He said that it is more legitimate; will therefore carry more weight; and that more account should be taken of what this House says. I hope that the noble Lord has covered himself as he is a Deputy Leader and I know that the Leaders and the Deputy Leaders of the Opposition have to consult Mr William Hague in order to be sure that everything is all right.
On the point which he was making, will the noble Lord accept that irrespective of what is provided in primary legislation, here we are faced with two orders? Does he accept that we have the absolute entitlement to reject them and the question is whether we do or whether we do not; and that if there is some reason which appears to us to be just, sensible and reasonable, we are entitled to do so without creating any precedent?
My Lords, what I was about to say will certainly provide something of an answer for the noble Lord, Lord Campbell of Alloway.
I was going to consider the convention as it has grown up. This House is dealing with a Motion to annul an order which is subject to the negative resolution procedure which has not been annulled by the other place. I notice that the noble Earl, Lord Jellicoe, is in his place. I wanted to refer to him and to Lord Salisbury. In the 1960s, which some noble Lords here today will remember and of others will know from their knowledge of political life in the past 20 years, there were important debates on orders concerning Southern Rhodesia. Important statements were made in this House by Members from different parties as to the circumstances in which it was legitimate for this House to go against the elected House on these matters.
The noble Lord, Lord Carrington, who is not in his place today, said that, certainly, the House of Lords may go in defiance of the elected Chamber. He said that the House was certainly entitled to do that, but he said that surely no government could passively accept such an adverse vote.
During the debates on the Southern Rhodesia order, some noble Lords had argued that they should vote against an order in exceptional circumstances and that it was legitimate for the House of Lords to do that. But they limited that to certain special circumstances. One was the circumstance mentioned by the noble Earl, Lord Jellicoe, during the debates and he was Deputy Leader of the Opposition. He said that the House would be within its constitutional rights in going against the elected House and thus affording the government and the opposition a period of reflection. That cannot apply in this case because we are talking about the election rules which, as the Minister explained, deal with the nuts and bolts of the London mayoral and assembly elections and there is nothing there which requires further reflection. They have been agreed by all the various parties.
The other case for this House legitimately going against the views of the elected Chamber was where the House of Lords might be regarded as being better in step with public opinion. During the debates on the Southern Rhodesia order, Lord Salisbury argued that that was an occasion on which the views of the electorate might not be reflected in the House of Commons and, thus, the second Chamber should not feel constrained in voting against the order.
It is impossible to suggest that the election rules here dealing with the nuts and bolts of the London mayoral and assembly elections do not reflect public opinion. As we all know, there was a referendum after the election of the Labour Government on 1st May 1997 indicating that the public felt that there should be such elections. These rules merely facilitate that.
The noble Lord, Lord Mackay of Ardbrecknish, indicated that, whatever conventions there may have been in the late 1960s, those conventions are now out of date. It seems to me that something is being evolved on the hoof here by the noble Lord, Lord Mackay of Ardbrecknish. It deserves to be discussed.
My Lords, I am obliged to the noble Lord for giving way. It is not on the hoof. Has not the noble Lord read paragraph 739 of the Wakeham report? That says that, as of today, this House has an absolute right of veto and therefore every entitlement to support the Motion of my noble friend. Does not the noble Lord understand that?
My Lords, I do not regard that as giving this House a complete opportunity, in its present state of evolution on the road to whatever will follow in due course, or any greater right by constitutional convention than was the case in the 1960s in the examples I gave.
On grounds of constitutionality it is not appropriate for this Chamber to turn down the nuts and bolts detail of the election rules simply as a device to bring something new on to the agenda. There may be other, more legitimate ways, of doing that.
My Lords, two questions arise on this amendment. The first, which has been raised for the first time by the noble Lord, Lord Borrie, is whether there is a convention that precludes your Lordships--and should preclude your Lordships--from accepting the amendment moved by the noble Lord, Lord Mackay of Ardbrecknish. The second question is whether, if there is no such convention, this is an appropriate occasion on which your Lordships should exercise a right to move against subordinate legislation.
The first question should not be necessary. It was decided with perfect clarity by your Lordships in 1994, long after matters such as the Salisbury convention were adumbrated; long after the Southern Rhodesia order. If it is necessary now, nevertheless, to pursue the matter, it is because freedom depends on eternal vigilance, because repositories of power are eternally seeking the aggrandisement of that power. That is one of the symptoms whereby the corruption of power can be measured. It is necessary therefore to now examine the position.
I mentioned that the matter had been decided. On 20th October 1994 a resolution was brought before your Lordships' House in these terms:
"That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration".
That was explained immediately by the mover of the resolution--I have to say it was myself--in these terms:
"the purpose of the Motion ... is to make clear that there is no convention which precludes your Lordships from voting on subsidiary legislation".--[Official Report, 20/10/94; col. 356.]
Nobody ever suggested that there was a legal rule but a number of Ministers suggested that there was such a convention, just as a number of Ministers are now suggesting that there is such a convention. But that is inconsistent with the resolution which your Lordships carried.
I refer to the measure because, as recently as 7th December of last year, the noble and learned Lord, Lord Falconer of Thoroton, repeatedly asserted that there was no such convention. It was a convoluted argument and selectively quoted, but I need not go into that because the conclusion was quite unacceptable. He finally said that, "The noble Viscount"--that is the noble Viscount, Lord Cranborne, who I am glad to see is in his place behind a splendid camellia and who can deal with this himself--
"indicated that we [the Conservative government] accept the Motion, but on the basis that there is a convention that says that we do not vote against subsidiary legislation".--[Official Report, 7/12/99; col. 1266.]
The noble Viscount can no doubt explain that that is obviously incorrect. The Minister was arguing that the resolution was accepted by the Government on the basis that it meant precisely the opposite of what it said and what it was said to be intended to do.
So that is the constitutional background. There is absolutely no convention which precludes your Lordships from considering the merits of the amendment. I do not desire to say anything on that because the matter has been argued quite conclusively by the noble Lords, Lord Mackay of Ardbrecknish and Lord Goodhart, but it does fall within a slightly wider context.
The noble Lord, Lord Hardy of Wath, mentioned the falling off of voting figures; very worrying. I cannot presume to agree with him that that is due to the postal vote; that is an entirely fanciful idea. But there is no question but that parliamentary democracy is in a state of some crisis, because the present Government are a strongly centralising, aggrandising government. The phrase that is used is that they are "control freaks". So they are. To adopt the language of the noble Lord, Lord Bassam--I am glad to see him in his place--what has happened in Wales and what is happening in London is a shambles and that brings parliamentary democracy greatly into disrepute.
In considering further constitutional questions, as your Lordships propose to do, it seems to me that the central issue will be the health of parliamentary government. Anything that derogates from that is to be guarded against very carefully. To me, the knowledge of issues among the people who are to vote--the people who will be affected by the issues--seems to be very near the fundamentals of parliamentary democracy. Therefore, if this matter is put to a Division, I shall vote for the amendment.
My Lords, I should just like to say what a very great pleasure, as always, it is follow the noble and learned Lord. In what I hope will be a short intervention, I shall return to the central point of his argument. However, in view of the remarks made by my noble friend Lord Mackay of Ardbrecknish, I ought, first, to declare an interest in at least part of his argument as I am president of the Watford Conservative Association.
Like the noble and learned Lord, I was much impressed by the arguments put forward by my noble friend Lord Mackay. He so clearly embarrassed the Government that they had to persuade the noble Lord, Lord Hardy of Wath, to put forward what I thought, coming from him, was a very remarkable and ideological view. If I understood the noble Lord correctly, he was arguing that any form of public subsidy in elections was a disincentive to vigour and personal enterprise. If that is so, perhaps I may encourage the noble Lord to come across to these Benches because, at least ideologically, that argument would fit very well with some of what we have said. I give way.
My Lords, I do not think that the noble Viscount fully appreciated the point I was making. It may well be that the freepost has served its purpose. It was designed to stimulate and persuade people to vote; and, indeed, to remind them that they should vote. Turn-out has dropped dramatically. That is the matter which should be exercising the minds of politicians today.
My Lords, with great respect to the noble Lord, who I well remember with affection from another place, I understood from his original argument that he equated the introduction of the freepost with the decline in turn-out at general elections. But, as I understand him now, he has slightly modified that argument. However, that is not something with which I wish to bore your Lordships this afternoon.
In view of the excellent way in which my noble friend deployed his arguments, I shall not attempt to repeat them. However, I have two questions for the Government. The first relates to the assertion, which was made much of by colleagues of noble Lords on the Government Bench in another place during the course of consideration of this order; namely, that it was really outrageous that an unelected House should have anything to do with consideration of electoral law. If I am right, that was the centre piece of the oratory of the Leader of another place. I am glad to see the noble Lord, Lord Whitty, shaking his head; indeed, it means that he at least sees the inherent weaknesses of his right honourable friend's argument. If that is so, it is rather curious in that, as my noble friend said, the Government are portraying a rather cavalier view of the constitutional place of a second Chamber in our system.
As former colleagues of mine can bear out, I have long agreed with the proposition that your Lordships' House badly needs reform. It seems to me that the reason for such reform is, above all, to give it the independence and authority with which to carry out its central constitutional role, which seems to me to be very clear: to ensure that another place does its job properly. That role is not to challenge the ultimate authority of the other place, but to have enough independence and authority of its own to insist that it should not put up with the sort of sloppy legislation that governments of both parties have got away with because of their dominance of another place, even when they have not enjoyed a majority as, indeed, the government of whom I was a part did not in the dying days of 1996-97.
It is very clear that a government with an enormous majority who wish to act in a high-handed manner are able to do so--the evidence that they are doing so is all too clear from the glum faces on their own Back Benches, both in this and another place, when considering this proposition--unless and until your Lordships' House at least puts up its hand and says, "We ought to think about this again". Therefore, my first question to the Government is as follows: if there is to be any sort of parliamentary control in the present circumstances of a high-handed government's actions, who, apart from this House, is in a position to exercise at least a measure of warning? If I understand the constitutional position correctly, it is surely not only the right but also the duty of your Lordships' House to do just that.
My second question for the Government is quite simply this. The noble and learned Lord, Lord Simon of Glaisdale, talked with his usual authority on the matter of conventions. I was Leader of this House when the noble and learned Lord introduced his celebrated Motion. He was kind enough today to point out that I accepted his assertion contained within that Motion without demur. I have been pleased to see that not only he but also the noble Earl, Lord Russell, have acknowledged that fact. My question arises out of your Lordships' acceptance--and, indeed, my own--of the noble and learned Lord's Motion; namely, what is the nature of constitutional conventions? They are not embodied in law. Is it not true that we have found that constitutional conventions that are universally accepted can, arguably, have greater force and staying power than legislation? But surely those conventions, by definition, can apply only if they are universally accepted.
I suggest to noble Lords that there are probably only two conventions in our present constitution that are immutable. The first is that the Sovereign always signs legislation put before her after its passage through both Houses of Parliament; and, secondly, that a government will resign and call a general election after they have been defeated on a vote of confidence. Apart from those two, I suggest that it is really impossible to sustain that a convention exists if a large part of Parliament--either House--refuses to accept it. I wonder, therefore, whether it is fair for me to ask the Government whether they agree with the implied analysis in that question.
If I am correct in that respect, surely it is fair to say that, when he announced that he no longer regarded that convention as applying in the new House, my noble friend Lord Strathclyde was in fact perfectly within his rights to abrogate any adherence he may have had to the convention in the first place. Indeed, he actually had the courtesy in that speech before Christmas to give the Government plenty of notice about his intentions. Therefore, in view of what I said about your Lordships' position as a check on an over-mighty government who dominate another place, and bearing in mind what the noble and learned Lord said about the nature of conventions, especially this one, it seems to me to be perfectly sensible for us to make an independent judgment about the rights and wrongs of what the Government propose in this order. Surely this House is within its rights to vote against the order if its judgment tells it that that is what it ought to do.
My Lords, before the noble Viscount sits down, I wish to make something clear and to put a question to him. These Benches have never contested that this House has a right to vote on secondary legislation. Whether it is wise or prudent to do so is another matter. My colleagues have addressed that point. However, we question the propriety--given the noble Viscount's vast experience, I should be interested to hear his view--of threatening to vote down secondary legislation on a ground entirely extraneous to that secondary legislation. That, I suggest, takes us into new constitutional territory where neither convention nor constitution gives us any guidance. I hope that the noble Viscount will respond to that point.
My Lords, if I understand the noble Lord aright, he accepts that this House has the right to exercise its judgment--as I suggested a moment ago--as to whether or not to vote against a piece of secondary legislation. If I understand the implication of the second part of the noble Lord's remarks, he is resurrecting what I think has now been demonstrated to be a canard during the course of this debate; namely, that this House is doing something which it is not allowed to do because the primary legislation on which this secondary legislation depends does not mention the question of free post. I believe that that is what the noble Lord is saying. If so, I assume that the noble Lord will refer to the Law Officers the question of whether the Government acted ultra vires in the matter of Scotland and Wales, and whether they ought to sue themselves.
My Lords, I am sorry to pursue this but I should stop this canard too. Section 11 of the Government of Wales Act and Section 12 of the Scotland Act provide for legislation which could apply the parliamentary provisions to elections for the Scottish Parliament and the Welsh Assembly. The Greater London Authority Act has no such provision. Therefore, what the noble Lord, Lord Mackay, proposes is actually to ask the Government to act ultra vires in respect of current legislation. I query the propriety of that.
My Lords, one would have thought that after about five interventions someone on this side might get a chance to speak. I rise with the normal glum expression on my face to say a few words in favour of the Government for a change. We seem to be debating three topics, one of which I was quite unprepared for; namely, a rather scurrilous attack on the democratic credentials of the Labour Party.
My Lords, looking at the Conservative Party and having sat in this House unreformed for many years I find it most odd that the Conservative Party of all people should attack us on the ground of parliamentary democracy. For some time I have been intrigued by its commitment to democracy. I did not see a sign of it in the years when I sat on the Opposition Front Bench. Although I am willing to discuss the history of our great parties at some point, I believe that such scurrilous remarks ought to be held for another occasion.
In my second topic I pour oil on troubled waters. It seems to me that, as regards the question of the mail shot, a reasonable person could come to the view that the noble Lord, Lord Mackay of Ardbrecknish, takes. I do not regard his view as completely unreasonable; namely, that there could be a free mail shot, or that £5, £10, £15, £20 or £30 million should be spent. However, I ask him to consider that an equally reasonable person--if he can conceive of a person equally as reasonable as he is--could come to the opposite view. I am relatively open-minded on the matter. I am certainly not accusing him--as I often do--of being an idiot on these matters. As I say, one could take the view that there should be a free mail shot.
However, I am afraid that I belong to the school of thought of my noble friend Lord Hardy of Wath. I regard these mail shots as junk mail. My heart sinks at the thought that, if the Opposition were to get their way, more of it would arrive through my letter box. As I say, the Opposition do not hold an impossible view but I ask them to accept that this side does not hold an impossible view either.
The main topic I wish to debate concerns what your Lordships have a right to do and what they should do with respect to secondary legislation. When I first came to your Lordships' House I rapidly became a member of the Opposition Front Bench. I knew nothing about the conventions of your Lordships' House. I did not know much about Parliament anyway, and certainly not much about your Lordships' House. I reasonably pronounced that we had better divide against an order that I did not like.
The Leader of the Opposition at that time, the noble Lord, Lord Cledwyn, said, "Under no circumstances can you do that. If you so much as suggest that you will not be on this Front Bench anymore or ever again." I inquired why that was and I was told, "There is a convention that we do not do that sort of thing." My noble friend Lord Richard replaced my noble friend Lord Cledwyn as leader of the opposition and this subject arose on more than one occasion. Even as regards some measures that we considered monstrous we were told about the convention that I have mentioned. The question did not arise as to whether we had a right to divide on these measures--that is the point to which the noble and learned Lord, Lord Simon of Glaisdale, adverted--but whether one should do that. As regards the academic point, I have no doubt of the right to do it. My point is that, until recently, I was under the impression that we simply did not do it because that is not the way that your Lordships behave.
When my noble friend Lord Barnett and I gave evidence to the Wakeham Commission we included in that evidence the proposition that the convention I have mentioned should change and that in the new, reformed House of Lords noble Lords ought to scrutinise secondary legislation as effectively as primary legislation. We were fairly moderate in our view; namely, we felt that we should be able to vote on it once in order to send it back to the other place for reconsideration. If it helps the noble Lord, Lord Mackay of Ardbrecknish, and others, I should say that that is still my view. However, it is also my view--I ask the noble Lord, Lord Mackay of Ardbrecknish, and others to think about this--that we should do that only when we have had a proper debate in your Lordships' House on how your Lordships' House should behave in the new phase in which it finds itself. We should not do it in an ad hoc manner on an amendment of this kind for no specific reason--
My Lords, there has been no debate in your Lordships' House of a fundamental kind on the question of how your Lordships should proceed under the new system. I believe strongly that we should have such a debate. We should ask ourselves how we wish to proceed.
My Lords, I am obliged to the noble Lord for giving way. Does he accept the point that I believe I have made twice today; namely, that this question of primary legislation, whether it confers the power to do this or that, is totally beside the point?
My Lords, it is not totally beside the point. However, it is beside the point to raise the question in the first place on a matter which is not before us. The issue before us is whether your Lordships should vote on a matter of secondary legislation when many of us were under the impression that we simply did not do it. As far as I know it does not follow logically that because you can do something you should do it. I ask noble Lords to reflect on that point.
The notion that the whole of parliamentary democracy depends on a free mail shot is a contender for the most absurd proposition of this Session so far. However, that is by the way. As I say, were we to debate how your Lordships' House should behave in the present set-up, I, for one, would say that we ought to approach secondary legislation in a new way. I repeat that it would be a new way. What the noble Lord, Lord Mackay of Ardbrecknish, and the Liberal Democrats propose to do is a new departure and constitutes something completely different from what we did when we were the principal opposition. I believe that the proposal would imperil your Lordships' House in terms of its reasonableness in dealing with these matters.
Therefore if we debate this and if your Lordships come to the conclusion that they wish to proceed in this way in the future I will support that. I am not sure that my friends on the Front Bench will be that pleased because governments hate anybody doing anything about secondary legislation. I think we should; but I certainly do not believe that we should be doing anything like that on this occasion in an ad hoc manner, as I have said, simply for what I regard as a rather party political point.
My Lords, as you look around our great capital city at the moment you will see a great many posters bearing the same slogan:
"The biggest job in London: it is your choice who gets it."
That is the Government's slogan on advertising boards across the city and on the back of every Tube ticket. However, I believe that it rings somewhat hollow in the light of the Labour Party's electoral college system, in which some votes count for more than others. Perhaps the slogan should be changed to,
"The biggest job in London: it is the Government's choice who you should get."
The issue of maintaining the traditional right of all candidates in major elections to have one of their leaflets delivered at public expense is the heart of the matter: democratic choice or centralised control. In all large-scale elections in Britain in modern times candidates have been able to have free delivery by the Post Office of leaflets to help them get their message across directly to the voters. This is a large-scale election: more than 5 million people can cast their votes. It is the same electorate as that which elected eight Members of the European Parliament to represent London last June. Candidates then were collectively entitled to one free mailshot during their campaign.
I shall not pretend that there is any great enthusiasm on the part of the recipients to receive literature from candidates. I cannot imagine many people waiting impatiently behind their letterboxes, eager for the party leaflets to drop through their door. However, when the Government take away their right to hear directly from their candidates on such important issues in this way, I suspect the public will become even more cynical about the whole political process than they are at present.
The Government are trying to suggest that the election of a mayor and an Assembly for London is just another local election. I do not believe that this equates with the facts. Local elections will continue to be held in London for borough council elections, and there is no local councillor in Britain who will have anything like the power that the mayor of London will have. The present advertising campaign does not suggest that this is a local election. "The biggest job in London", as it describes the position of mayor, is not that of a local councillor. Indeed, if it was only a local election I am quite sure that the Labour Party would not have used the electoral college system to choose its candidate, which has caused it so much trouble. Very often I have heard that the justification for the Labour Party using the same system to elect a mayoral candidate as it used to elect its party leader, and indeed its party leader in Wales, is exactly because the London elections are not merely local elections. It does not require deposits such as the £10,000 which is required to stand as a candidate for mayor of London. So we are dealing with a large-scale regional election--an election the size of which justifies a free mailing.
The issue has again been raised as to whether this mailshot could be abused for possible commercial advantage. The standard Post Office regulations--I am very familiar with them--are very specific on this matter. They say that communications must contain matter relating to the election only and that a candidate must give a proof of his copy to the Royal Mail area manager and obtain his clearance before printing, so abuse by commercialisation can very clearly be prevented.
Can the cost be justified? The Government's initial rather absurd estimate of the cost has halved in approximately a fortnight, so that perhaps within a week I hope they may actually agree that the cost of allowing all candidates to have a leaflet delivered together will actually be rather less than the cost of their own advertising campaign, which simply urges people to vote in the election. The independent Electoral Reform Society suggests that one envelope containing all the free postings would cost something between £2 million and £4 million. That compares with the £4 million that I understand is within the Government's present budget to cover the fact that the elections are taking place.
I have a simpler suggestion. Why not deliver all the leaflets with the poll cards? The poll cards have to be delivered to voters, advising of the date of the poll, the polling station, the hours of opening and so on. In real terms the additional cost would simply be that of collating the literature and of the rubber bands that would be required. In any event, the costs of this operation are really only a payment from one part of the Government to another, namely the Post Office. The heart of this argument is fair, free and democratic competition. At a time when we are all concerned about lack of participation in the democratic process, I do not believe that there should be a weakening of that process by withdrawing healthy competition between candidates which results from free mailing. We should also bear in mind that it is especially necessary for large parts of London where many homes are inaccessible to private callers.
My Lords, what wonderful support from the noble Lord, Lord Williams! I thank him. I am always amused to see, when the Government are in deep trouble, that they call upon the noble Lord, Lord Borrie, to try to help them out. I was not going to make jokes about the "hapless Lord Bassam of Brighton" because it is a bit unfair but, I am terribly sorry, I could not resist it.
It seems to me that the noble Lord, Lord Borrie, made one fundamental historical error. He said that constitutions should not be made on the hoof. The whole point about the British constitution is that it has been solidly made on the hoof by people inventing precedents which did not exist to enhance the liberty of the subject. The on-the-hoof method of constitution making in our case has worked sublimely well.
That leads me to what happened with the last House of Lords Act. That was constitution making on the hoof--and an actually fairly bruised, unshod hoof at that--in that the Government did not then think of what would happen as a result of getting rid of all of us. What happened was that this House now has legitimacy, which it has not had since 1911. My peerage is not Walpole; it is not Pitt; it is Mr Anthony Blair. It is he who has given me legitimacy. He gave it to me by the House of Lords Act 1999. Therefore I can do what I would not have done when the noble Lord, Lord Peston, was on the Opposition Front Bench. Then, for a perfectly good reason, we did not vote against democratisation, because the House lacked legitimacy, and also because there was an imbalance in the House. The imbalance has been rightly destroyed and we have been given new legitimacy. The consequence of that legitimacy--
My Lords, the noble Earl talks of the House being in balance at the moment. Out of a House of 661 Peers, there are 181 who take the Labour vote and 480 who do not. Is the House still unbalanced?
My Lords, it is unbalanced in a sensible way. It is unbalanced in that nobody can rig it. My noble friends on the Front Bench cannot call in Earls and Marquesses of ancient lineage. One of my noble friends says "shame". I actually think it is right that they should not, but it means that the Conservatives cannot win a Division without outside help: nor can the Liberals, nor can the Cross-Benchers and nor can--
My Lords, that is just not correct. There are 233 Conservative Peers and there are 181 Labour Peers. You have 50 more votes than the Government.
My Lords, the way in which it arose is called constitution making on the hoof, which is the whole point of it. We have a Chamber which does not have the faults of last Session's Chamber. That, I suggest--as it has come about through an Act of Parliament introduced by the Government--gives us the right to alter convention. The terms of the Salisbury convention of 1945 were simple: you do not muck about with our programme; we do not muck about with the composition. The composition, correctly, has been mucked about with. Therefore, it is perfectly reasonable, but with immense responsibility and care, to argue with government and to bring better and more balanced constitutional--call it Whig--arrangements into our affairs. That seems a sensible way in which to approach the matter.
I hope beyond anything that if, in the--should I say unlikely event of the Conservatives returning to power?
Perhaps I should not say that. But should that happen, I sincerely hope that I should never hear the argument, if noble Lords opposite again have the pleasure of Opposition, that if they believed that the Conservatives were being idiots, they would not hesitate to say so, because as night follows day, all governments are idiots.
There is a wonderful letter in The Times today which states that it is interesting to see that the Iranians have run a better election than the Labour Party. I am afraid to say that that goes beyond saying for the arrangements for the London mayor. The fact that the contest is between someone who ruined the GLC and someone who ruined Camden Council is neither here nor there. The choice is not excellent, but there it is.
To deprive smaller parties of the right to send out their literature when the Government are--what does my brief say--printing an 11-page leaflet about the election--
My Lords, Ministers have briefs from civil servants, so we must also be allowed to read from them occasionally and it happens to be a brief with which I agree. It is based on fact and so there is no harm in using it. The Government are sending out an 11-page leaflet so that everyone will know how to vote. As the noble Lord, Lord Rennard, said, the cost can be nominal. To deprive the electors of London of that would be wrong and for us not to exercise our constitutional duty would be silly.
My Lords, I had not intended to speak in the debate but I have been provoked by the noble Viscount, Lord Cranborne, and others who seem to be using the debate on London local government to establish certain constitutional principles which are certainly in dispute. I do not want to argue today about whether this is a more legitimate House as a result of the partial reforms. That is a matter for another day. But we need to look carefully at what is being suggested.
It is being suggested that through secondary legislation this House should alter and amend primary legislation. It has been said that the automatic right of the House to vote on any issue should not be challenged. The House may vote on any matter on which it wants to. I should have expected that sensible people would at least have considered carefully why they were voting. It is not a question of the right to vote but of whether a vote should be exercised. I have been in the House for a short time, so I hesitate to discuss conventions, but my understanding in relation to orders is that secondary legislation may be challenged only on the grounds that it is not in accord with primary legislation. I have not heard it argued here today that the orders before us are not in accord with primary legislation.
That being so, the only reason for voting against the orders which makes sense, which was partially argued by the noble Viscount, Lord Cranborne, is that it is the duty of the second chamber to exercise a check on the lower House. The noble Lord, Lord Crickhowell, said that the Government were behaving with perversity and arrogance. If they were doing so, parts of the two orders would go beyond what the primary legislation allowed the Government to do. If that was the case, it would be proper and right to check the Government for exercising powers which they do not possess in primary legislation. But to say that the Government are not doing enough in the orders and to ask the House to say that the Government should go beyond that which is in primary legislation does not make good constitutional procedure.
Those words will not make any difference. I have been in the game long enough to know that speeches from any Benches are unlikely to sway anyone. One noble Lord might perhaps be swayed, but more than that would be unusual. If the Opposition have made up their minds to proceed and vote the order down either by passing the amendment or otherwise, they are of course free to do so. But it does not make good sense or good constitutional law. I believe that in their heart of hearts the Opposition Front Bench know well that they are being opportunistic. That is fine; good luck to them. But let us not allow them to pretend that they are defending some ancient right of the House of Lords, because they are not.
My Lords, I have a characteristically modest point to make. I listened to the noble Lord, Lord Peston, with great interest, because I always do so. As I understand him, he was saying that we are bound by a precedent to which we should keep until we have had a debate to justify its removal. But I do not believe that we are bound by a precedent. It is the Front Bench of each party that is bound by a precedent, not the rest of us. I give your Lordships an example of how that worked out some 10 years ago.
At that time, my noble and learned friend Lord Mackay of Clashfern, the then Lord Chancellor, specified by way of secondary legislation the characteristics of the conditional fee; in particular, what should be--if I may be allowed the horrible phrase--the extent of the uplift allowed to the winning solicitor. He suggested that the uplift should be 100 per cent. I objected to that figure on many bases, but on the main basis that his own advisory committee had said that 20 per cent was more than adequate and 100 per cent could lead to all sorts of abuses.
The net result was that I lost by five votes in a well-attended House. It later turned out that if the Opposition Front Bench had voted in my favour, as they encouraged their Back-Benchers to do, I should have won by 10 votes. A rather acid comment in the newspapers to that effect emanated from the Liberal Party the next day.
So this great convention, to which we should all adhere, applies only to the Front Benches. I asked why there should be such a convention, as it did not seem to make sense. I was told quite simply, "It is done because when the Opposition gain power they hope that the same will happen to them". It is a form of self-defence. It has no logical justification at all. It is not absolute. In a case which concerned Rhodesia, it was not applied. Its substance and its philosophy are so weak that I suggest to the noble Lord, Lord Peston, that he really need not worry his head about it.
My Lords, there is another convention which has not so far been mentioned and which is more important than any which has been mentioned. I refer to the convention that in a democracy the rules of engagement for the conduct of elections should in general be agreed between the parties. I am not saying that everything should be agreed by everyone. One does not want to turn a need to create consensus into a right of veto. But, in general, rules for elections should be agreed between the Government and at least one major opposition party, preferably including the Official Opposition.
Through the whole of my adult memory, I cannot find more than one case when elections have gone ahead under rules which were approved by the governing party and by no other party. In this case, the rules for the election are objected to by the Conservative Party, the Liberal Democrats, the Green Party and, I may now add, the UK Independence Party. It is not often that we on these Benches agree with the UK Independence Party. It is not often that the Conservative Party agrees with the Green Party. That elections should not go ahead on that basis is a more important convention than any convention about the management of this House.
We are told by another place that we lack legitimacy to interfere in these matters because we are not elected. I find it curious that the Government wish the majority of this House to remain unelected. Were they to make this point in order to procure an elected Chamber, we on these Benches would be happy to support them. But should they make this point in order to preserve the right of those who govern another place to do exactly what they like, we on these Benches would not support them.
I remember well the debate of 20th October 1994, to which the noble and learned Lord, Lord Simon, referred. My noble friend Lord Rodgers of Quarry Bank spoke from the Front Bench and I spoke from the Back Bench. I made the point in that debate that there is an interlocking between conventions. I described them as a roundabout. I agree that it was once the case that we did not vote on regulations. On these Benches we have done it three times since 1994. My noble friend Lord Avebury did it the first time and I did it the second and third times, with the full support of our Benches on each occasion. If the Government do not wish votes on regulations to happen, they must not put through highly controversial matters by regulation. I cannot think of anything much more controversial than to attempt to run an election according to rules acceptable only to the governing party. This is not a Labour Party selection.
My Lords, we have heard a good deal today about constitutional conventions and a number of authoritative contributions have been made. I take a rather simple view that it is the duty of your Lordships' House to consider as best it can its judgment on those matters which are properly brought before it. At least one very powerful argument has been made for why in the mayoral election, above all others, candidates should have the privilege of a free postal system. In local elections and parliamentary elections, most people would concede that the party system works reasonably well. Parties and other organisations with established structures work reasonably well in putting forward candidates and being able to mobilise supporters and distribute literature.
They work well because, on the whole, electors in those elections cannot often know individually the many candidates. When they elect a governing group to a council or indeed to Parliament, they need to know that there is a coherent set of policies. Therefore, the party labels or organisational labels have a great value. The organisational structures behind them work to put those views across to electors. If there is one argument for having a directly elected mayor, it is that it allows individuals of stature and individuals who can make a contribution to their city to come forward as valid candidates for mayor without the support or backing of that kind of organisational structure. That is one argument for having a directly elected mayor as opposed to simply the leader of the majority group.
It stands to reason that that kind of candidate cannot depend on the canvassing structure and local system that party politics provides. Therefore, if we want to have candidates of calibre outside the party structure put themselves forward for mayor, we have to have an electoral system that recognises their needs and encourages that kind of candidate to stand. At the end of the debate, I should like to understand from the Government whether they accept the force of those arguments. Will they accept the principle that, in order to support the notion of a directly elected mayor, such candidates should have a free postal system? If they do accept that, it is incumbent on them to explain how they will provide for it.
My Lords, I declare an interest in that I have been selected by my party as a prospective candidate for the Greater London Assembly. There has been a good deal of discussion within the Association of London Government, which I chair, about the issue and the principle of freepost. All of the parties represented on that association have taken the view that freepost would be appropriate for this election because, to use the words of my right honourable friend the Deputy Prime Minister, this is a local authority that is unlike any other. It would not necessarily set a precedent of that kind. But the principle of freepost has to be seen as part of a package with the other arrangements which would exist in terms of the way in which an election is conducted. What is unfortunate about the debate is that we have not looked at those other elements of the package. Clearly, a cost is associated with having freepost. However, the parallel issues about the threshold which enables people to stand have not been addressed by the opposition parties today.
We have heard some strange arguments which suggest that somehow a freepost is the only bastion that exists to protect a proper democracy and that somehow it is the only thing that enables small parties to flourish and to operate in an electoral system. The reality is that freepost is not free for the parties. It is some time since I was engaged in a parliamentary election. That was as a chair of a constituency party. However, if I remember correctly, the activities associated with a freepost require the printing of the material itself, the enveloping and addressing of that material, and the bundling of that material into the precise order that the Post Office requests, which is not necessarily an order which any of us would immediately recognise as being a logical way of putting it together. That is a quite complicated process which requires a substantial degree of resources and organisation. Those will not be readily available across London to a party which merely creates itself and has only a small membership, but it is a substantial consideration. A freepost is healthy for democracy, but let us not pretend that it is the bastion of democracy.
I found it surprising to be told by one noble Lord that we were taking away from the public the right to hear directly from candidates. That is a very strange statement. There will be a whole variety of ways in which the public will hear directly from candidates. I, too, have a nostalgic belief in the traditional process of knocking on doors and speaking directly to electors. But the mass media will be the method by which people hear from candidates, particularly in the mayoral election. So let us not get too excited about this. A freepost is helpful for the conduct of democracy, but it is not an essential requirement.
The issue of frivolous candidates concerns me. The noble Lord, Lord Mackay of Ardbrecknish, brushed aside the issue of a north London candidate in the European elections in 1994. I accept that north London is a long way from Scotland and that he may not have been familiar with the circumstances. The argument put by some noble Lords that there are rules that would prevent people promoting their business, for example, goes only so far. If one's claim to be an appropriate candidate for the post of London mayor or for membership of the European Parliament is that one runs an extremely successful driving school located in the Stroud Green Road, that is in effect a way of promoting that driving school. I do not suggest that that was the sole motivation of the candidate in this case--
My Lords, I am grateful to the noble Lord for giving way. Has he not just destroyed his own argument? He started by saying how much effort was required to take advantage of freepost. Is the truth of the matter that the only frivolous candidate he fears is Ken Livingstone, which is what all this is about?
My Lords, my point is slightly more complicated. I am suggesting that if a candidate who runs a commercial undertaking believes, perhaps erroneously, that the business can be promoted through this process, that candidate will put resources into ensuring that the leaflets are printed, bundled up and enveloped, and that the requirements of the Post Office are met. What one gets is a free postal delivery instead of having to pay a substantial cost over and above those extra costs.
I do not regard Ken Livingstone as a frivolous candidate. I think London could do better, but it will be fascinating to see what decision he takes. My only point is that I wonder whether the purpose of the Opposition's position today is not simply to delay matters to allow Ken Livingstone more time to make up his mind.
My Lords, I do not accept that. The location of the driving school would be described. I am sure that the noble Lord is familiar with the Stroud Green Road. It is not an extremely long road. Usually an address is added at the bottom under the heading, "Printed and published by", which would provide the clues for those with good eyesight. The point is that the mailshot would provide an opportunity that could be used in that way. It is a serious concern. It would be wrong for your Lordships to pretend that it does not exist and that there is not a cost to government in so doing.
The other elements of the package have not been mentioned. The threshold for entering the mayoral election is quite low. It is £10,000 and 10 signatures in each of the various London local authorities. That is not a large number of signatures. The most difficult requirement is to find 10 electors in the area of the Corporation of London, which has some 5,000 electors--so in order to stand as a candidate one would have to find one in 500 electors to provide a signature. That is the most difficult requirement that has been set. But if the same threshold of one in 500 electors were applied, which is close to the threshold that applies in terms of signatures to stand as a local government candidate: in practice, 10 signatures in an electorate of, say 5,000--it would mean a requirement of 10,000 signatures across the Greater London area. That would require serious commitment by a political party, and one which candidates who wanted to stand for merely commercial or frivolous ends would find quite difficult. Similarly, if the deposit were put on the same level as that for parliamentary elections, it would be a much more substantial figure, running into several hundreds of thousands of pounds. I do not suggest that those thresholds would necessarily be appropriate. What I am suggesting is that the question of freepost must be examined in the context of the threshold for putting forward a candidacy.
The key point is that the amendment moved and the points made are inappropriate for this order. I suggested, perhaps frivolously (a word that has been repeated a number of time in this debate), that the idea of the amendment was simply to give time for an individual to consider his position. However, I wonder whether this House wants to go down on record as voting against an order which could have the consequence of delaying the election in London, when we know that the people of London want the Greater London Authority and an opportunity to vote for a mayor and assembly. I wonder whether this inappropriate move is simply designed to postpone the election. I wonder why, when there are other opportunities on the parliamentary timetable to raise this matter in a more appropriate way, this strange device has been cobbled together for this occasion if it is not to make some rather silly and petty party political point.
My Lords, there was a breathtaking moment in the early part of the noble Lord's speech when I thought that he was going to oppose his Government. After that, he lost his sense of direction and went in quite another.
I shall not speak at any length because I understand that Front Benches are united in wishing to shut us up. I am always very diffident. If I have any reputation at all in this House, it is for being exceedingly diffident for the convenience of the Front Benches. I merely want to make some brief points. First, I am heartily sorry that there is to be an election for the post of mayor of London. I deeply regret it, and I believe that the Prime Minister will come to regret it. So far, the process has not been a source of great satisfaction to any political party except the Liberals, who have a quarrel regarding a certain anonymity on the part of a very worthy candidate.
As to the nonsense that has been talked about conventions, I entirely agree with the noble Earl, Lord Russell. A custom has grown up whereby, when there is to be a fairly large election--no one can doubt that an election for the whole of London is quite a large affair--there is a general expectation that there will be a free electoral mailshot for every household. It is astonishing to hear such a stalwart supporter of the Labour Party going so far as to say that the great democratic institution of a free mailshot is equivalent to junk mail. It may be treated as junk mail, but surely it does not come well from him to talk as though it were.
In these circumstances, the Government have no grounds whatever for denying this. To say that we are all being rather frivolous and that we are making party political points is absolutely misplaced. The Government have made a very serious error. They ought not to press it further. I hope that they will receive a sharp lesson in this House tonight.
My Lords, first I should make clear to the noble Lord, Lord Harris, that at least the Liberal Democrats have been ready for this election for the past six months. As far as we are concerned, the sooner it takes place the better. The noble Lord is such a Pooh-Bah that it is difficult to know in what capacity he addresses the House. However, it was clear from his speech that today he addresses the House as a Millbank loyalist. I would rather have heard him speak in his capacity as chairman of the Association of London Government, which I understand has called for a freepost.
We have had a debate of high quality which has gone some way to meet the requirements of the noble Lord, Lord Peston. A good deal of the debate has been concerned with the shape, powers and responsibilities of the reformed House. The crux of the matter was put by my noble friend Lord Rennard, who spoke of posters all over London. We are talking about the biggest job in London. It is true that the subject we are debating tonight--freepost--is not within the orders, but it can be argued that in such circumstances we can use the powers of this House to right a negative as well as a positive wrong. As has been put forward time and again, in the raft of reforms put forward London was always seen as being on a par with Scotland, Wales and Northern Ireland.
As to the views of the noble Lords, Lord Peston and Lord Hardy, about a free mailshot, that is not the only buttress to democracy. However, as politics becomes more expensive and we move into Internet democracy, the power and wealth of the big battalions become stronger and stronger. For that reason, it is very important that we retain those elements in our electoral process that assist smaller parties and individuals.
The Government's arguments about cost are pretty rich. This is a government who have spent more on publications and propaganda than any other in peacetime history. To start rolling out the cost element is almost the last refuge. I suspect that the last refuge is lawyers' niggles, to which the noble Lord, Lord Borrie, referred. As was pointed out, they are always brought out in an emergency. Today, they have been successfully blown out of the water collectively by the noble and learned Lords, Lord Simon of Glaisdale and Lord Ackner. The noble and learned Lord, Lord Ackner, let the cat out of the bag. We are all aware of the convention which the Government clutch to their bosom. As always, it is not a convention but a convenient old boys' Act worked out between Front Benches. The Government anticipate that they will need it at some time and so do not rock the boat for the Opposition.
I am concerned that this should have been done by the Labour Party in connection with its raft of constitutional reforms. A number of speakers, among them the noble Lord, Lord Hardy, spoke about the fall-off in democracy. Before the election the Liberal Democrats and the Labour Party had a committee which looked at a raft of reforms in an attempt to re-engage the public in the democratic process. I take pride in the speed with which most of those pledges have been carried out.
The noble Lord, Lord Peston, spoke about the Labour Party and democracy. No one doubts the party's long and historic commitment to democracy, but the chapter of incidents that have arisen as it tries to bring about these constitutional changes has, frankly, damaged its credibility. In Scotland we have seen the attempt to prevent Dennis Canavan from standing, which was quickly reversed by the will of the electorate. We saw the shambles in Wales involving Rhodri Morgan. We have also witnessed the farce in London over the past few weeks. The Labour Party is now becoming as much associated with fix and fiddle in elections as the Conservative Party was with sleaze, and it will do it as much electoral damage unless it cuts it out. My friends in the Labour Party--I have a few left--tell me that the problem lies with an over-promoted general secretary and a coterie of advisers around the Prime Minister who believe that they invented politics in 1997. If so, it behoves some of those on the Benches opposite to make them think again.
I was much impressed by the speech of the noble Lord, Lord Hughes. I hope that he will read the speeches of Diane Abbott, John McDonnell and Audrey Wise. He will be aware that when he was in the Commons he and they would have been part of the Tribune Group. There are now more members of the Tribune Group in this House than down the corridor. That is how matters develop.
The Labour Party organisation as I understood it was that of Sara Barker, whose slogan was "The triumph of ideals must be organised", not that the triumph of the Prime Minister must be obtained at any cost. It is time for the Labour Party to get behind its old principles. If by voting down this order tonight we give the Government time to think carefully as to whether in this election to provide London with new governance, which is a great achievement for the Labour Party, they should connive in such a shabby act as to deny a freepost, I believe that we shall be doing a service to that party as well as the country. The noble Lord, Lord Crickhowell, said that the electorate would give the Government a bloody nose. I believe that if they pursue this course much longer the electorate will do so. In the meantime, I believe that we should give them a bloody nose.
My Lords, we approach the point where the noble Lord, Lord Mackay of Ardbrecknish, must decide whether to press his Motion and other Lords must decide whether to follow him. This House has reached a critical point. The noble Lord, Lord McNally, may well be right that we have had an excellent debate; certainly, we have heard some excellent speeches. But it is also evident that none of those speeches has addressed the order that I moved two-and-a-half hours ago or quibbled with either that measure or the election rules, to which the noble Lord's Prayer relates. In other words, we have had a debate about a matter that is not actually before your Lordships' House.
I do not say that noble Lords should not conduct such a debate. In this House there have been a number of debates whose relationship to the Motion on the Order Paper has been remote, to say the least. However, I believe that when the House decides whether to use its undoubted constitutional right--which it rarely does--to vote down secondary legislation it should do so on the basis of the legislation before it, not legislation that is not before it. If this House did anything else it would not be exerting its constitutional role to ask the Government to think again or performing its role to improve legislation. It is, therefore, a slightly curious debate.
My Lords, the noble Earl has on many occasions objected to a Bill because of a clause that is not there. However, he has not broken a convention which, in the case of affirmative resolutions, has existed for 32 years. I do not often refer to great tomes such as Erskine May. However, I have checked Erskine May because the Library's research document does not answer the point definitively. Erskine May indicates that at no time has this House ever adopted a Prayer against a negative Motion. We are therefore in new territory. Of course the House has a right to do so. I have not denied that. The Leader of another place has not denied that. We have queried the wisdom of so doing. We have queried the prudence of so doing. We have queried the political implications of so doing. But we have not queried that right. Noble Lords now need to assess for themselves whether the wisdom of so doing is clear.
I referred to a period of 32 years. The last time this House voted down an order of this kind was on the basis of sanctions against Southern Rhodesia. It was a vote which I thought brought shame on the House. Nevertheless, it voted on the order that was before it. In 32 years we have not done the same. I believe, therefore, that we need to think.
The issue of the freepost is entirely extraneous to the matters in the rules and the order. The noble Earl, Lord Russell, shakes his head. He has said that it is the convention in these matters for the parties to be in agreement on the rules. These rules, which are fairly extensive, and this order, which is also fairly extensive in relation to the expenses, were subject to that convention: the parties agreed them.
Moreover, as I made clear to the noble Viscount, Lord Cranborne, not only does the noble Lord's amendment require us to do something which is not covered by the orders--this is not a lawyer's niggling point, something my noble friend Lord Borrie found himself condemned for saying--it also asks the Government to act ultra vires in terms of existing legislation. Noble Lords may well be of the opinion that the Government, this House (we are all partly guilty) and another place--Parliament as a whole--were remiss in not putting such a provision in the Greater London Authority Act. However, none of us did. The brief reference made in Committee in another place was passed over not only by my colleague, Nick Raynsford, but also by the Opposition in another place. It was not pursued. The matter was not raised in this place, so we did not make provision. The power, therefore, does not exist to do what the noble Lord's Prayer requires us to do.
This again is utterly and completely unprecedented territory. It is not a question of constitutional rights. It is not a question of breaking a convention, which I accept your Lordships have the right to break. It is moving into completely new constitutional territory. I hope that noble Lords recognise that.
Noble Lords raised the precedent of Scotland and Wales. I repeat--noble Lords seem to have missed this point--that in relation to Section 11 of the Government of Wales Act and Section 12 of the Scotland Act there is power for the Secretary of State to bring forward regulations which apply the national election provisions to the elections for that Assembly and that Parliament. I repeat: the equivalent provision does not exist in the Greater London Authority Act. We are therefore in totally new territory. I beg the noble Lord, Lord Mackay, and those who are tempted to follow him, to consider what they are doing.
It is legitimate for the noble Lord to raise the issue in a different context. He raised it at Committee stage of the Representation of the People Bill. However, it is not legitimate and verges on serious impropriety and abuse of procedure to debate an entirely separate issue which we are not allowed to raise under the primary legislation in this context, force through a Division and vote down secondary legislation on the basis of such a move.
This is not the House of Lords behaving like the watchdog of the constitution. The noble Lord, Lord Goodhart, put it better when he said that we are behaving like a Rottweiler, an undisciplined and undisciplinable animal. That is not the role of the House of Lords in any of our views of the future; and it should not be a role advocated by the Front Bench of the Liberal Democrats. I am rather surprised that the noble Lord did so.
What is to stop my noble friend Lord Stoddart of Swindon, for example--I see that he is not in his place--from moving to vote down secondary legislation on matters of education on the grounds, for example, that he objects to the common agricultural policy? Once we get into that territory, your Lordships are using one area of law, of regulation, to vote down another. It amounts to an abuse of the proceedings of this House and, I would say, leads us not only into very difficult territory but also territory which--if the noble Earl, Lord Russell, were not about to jump to his feet and accuse me of asperity of speech--I would suggest was close to a serious criminal offence.
However, for the record I address some of the points raised in relation to a freepost. I am sure that we shall return to the issue next Tuesday in relation to the Representation of the People Bill. I turn, first, to the question of cost. The figures referred to by my noble friend Lord Bassam of Brighton, quoted elsewhere, relate to the original proposition of the noble Lord, Lord Mackay; namely, that we adopt the same procedure as for national elections in the Greater London proposals. That would mean an addressed envelope to every elector costing £750,000 per party. On the basis that there might well be 20 parties contesting the mayoral plus the GLA elections, the cost could amount to £15 million or more. The proposition today is slightly less expensive in that the delivery is addressed to households. But even that would cost £420,000 per party and therefore over £8 million.
Not only do we not have the primary legislation authority; we do not have the budget to pay for that. Therefore the money would come out of the GLA budget. As my noble friend Lord Bassam rightly pointed out, the budget of £35 million is the administrative budget for the GLA. The £3 billion relates to all the expenditure by the police, the Greater London Development Agency and Transport for London and not the administrative expenditure of the GLA. We are suggesting, therefore, that we take £8 million out of that £35 million for the first year of the GLA'S operation. We have at the very least to consider the wisdom and acceptability of doing that in relation to London.
My Lords, that expenditure will come from central funds and we have the authority to pay. We do not have the authority to pay, nor do we have the budget allocated for us to pay, under the GLA Act.
I wish to raise one other point on this extraneous matter. It relates to abuse. A number of noble Lords suggested that we do not want a freepost in case my good friend Ken Livingstone decides to run as an independent and we would wish to stop him getting any publicity. I think that noble Lords recognise the somewhat absurd implications of that.
However, we wish to stop abuse in this area. We are talking about a circulation to 5 million people. My noble friend Lord Harris referred to a driving instructor somewhere in Camden. I have a more exciting example. In the recent Kensington and Chelsea by-election, the electors of Kensington and Chelsea--one might have thought that they had had enough excitement with having Nicholas Scott, Alan Clark and now Michael Portillo as their MP--were treated to 19 candidates. One of the candidates who took advantage of the freepost was a Ms Louise Hodges of the Daily and Sunday Sport Party. Some of her policies were quite respectable. However, the implication, to be frank, is not quite so respectable. She does not put her telephone number but only the address of the Daily Sport. I believe that that semi-commercialisation of the election and freepost process--the current procedures of the Post Office, to which the noble Lord, Lord Rennard, referred, were incapable of stopping it--is a possible abuse. To put it at its lowest, we should at least consider these implications before we move into this election, leaving it open to abuse of a mailing to 5 million people of that sort of material.
I return to the substance of what I have been talking about. The election rules that are before the House have been agreed between the parties. The expenses provisions that are before the House have been agreed between the parties. There is no dispute about that. Not one noble Lord who has spoken has raised any objection to that. Yet we are faced with a proposition from the noble Lord, Lord Mackay of Ardbrecknish, that we should vote against those provisions. If we stick with that position from the House of Lords, of course we shall have no rules for the election; we shall have no limit on expenses for the election. Is that really in the interest of Londoners or the interests of democracy?
My Lords, that is simply not true. All you have to do is reintroduce an order which proposes something slightly different. That canard is simply not a runner. That is a bad metaphor!
My Lords, as ever, I am grateful to the noble Earl for giving me guidance as to what I may unfortunately have to do later tonight. I hope that I shall not have to do it. Until we submit virtually equivalent orders and the House agrees those virtually equivalent orders, we have no basis on which to fight the election and no basis on which to limit expenses in that election. That would be an absurd situation in which to place the House.
I have contended throughout that not only does this take us into uncharted territory, which I submit your Lordships should be cautious of entering, but that it is also particularly inappropriate that we should do it today. The noble Lord is well aware of, and has referred to, the fact that an appropriate Bill is possibly going through Parliament at this time. We have very good arguments against his proposition, which we shall deploy on Report. It may be rather late in the day to do it. We should perhaps have included that provision in the GLA Bill. Belated though it may be, however, it must be within the scope of the Representation of the People Bill. My noble friend Lord Bassam will be taking the Report stage of that Bill on Tuesday. That surely will be a legitimate opportunity for the noble Lord to press these matters--not by effectively rejecting a basis for fighting the London election on which we are all agreed.
If the noble Lord wants to present any propositions, or indeed if we have any new propositions, which will avoid huge cost to the taxpayer and avoid the possibility of abuse, my noble friend Lord Bassam and I shall be quite happy to talk to him or to anybody else about sensible propositions which meet our criteria. We are not, however, prepared to be bounced--I might even use the term "blackmailed" at this point without impugning anybody's integrity in a personal sense--into surrendering our advocacy of this order and these rules on the basis of something which is irrelevant and on the basis of a Prayer which would bounce the Government into doing something which is ultra vires. I hope that the noble Lord, Lord Mackay, will mark my words well in this respect. I hope, therefore, that the House will also understand what it will do if it follows the noble Lord's lead.
My Lords, I wish I could say that I am grateful to the noble Lord, Lord Whitty, for his summing up. I am not sure that I can say that. I believe that we have been round the same sort of course which the media went round and which we went round last week on the Representation of the People Bill. The Government's case seems to be entirely that we cannot complain about the orders simply because something is missing. That is new. I have heard Labour Members complaining fairly vigorously about many matters being missing from legislation and yet it has never stopped them.
The more serious point made by the noble Lord, if I heard him correctly, is that there are no powers in the Greater London Authority Act. I have checked that the Scotland Act does not directly mention these matters, but it does give power under Section 12(4)(a) to,
"apply, with or without modifications or exceptions, any provision made by or under the Representation of the People Acts or the European Parliamentary Elections Act 1978 or by any other enactment relating to parliamentary elections".
Section 405(1) of the Greater London Authority Act seems to give Ministers powers every bit as wide as the powers that I have mentioned under the Scotland Act. It states:
"Any Minister of the Crown may by order make such amendments, repeals or revocations as appear to him to be appropriate in consequence of this Act, or of any regulations and orders under this Act ... in any enactment contained in an Act passed before the relevant day or in the Session in which that day falls".
That is a fairly extensive power.
My Lords, that is the standard clause which appears at the end of a number of pieces of legislation. The key words are,
"in consequence of this Act".
If it is not referred to elsewhere in the Act, one cannot invoke it for this purpose.
My Lords, I am not a lawyer, neither is the noble Lord the Minister, but it seems to me that it is a matter of common sense to suggest that such a freepost is in consequence of an election, and I believe that the public would agree with that. The Government may therefore find that they are able to try these powers. In any case, as we have said frequently, they could use the Representation of the People Bill. All that I derived from the last part of the Minister's statement is that we and the Liberal Democrats could put forward amendments to the Representation of the People Bill and take the temperature. We have now twice taken the temperature and I have not seen the patient--namely, the Labour Party--show any sign of responding to the medicine that we have tried to administer. It is simply not prepared to budge an inch. It is not even prepared to concede that there may be an argument in this respect or that there may be ways in which we could address this issue. I am not therefore terribly impressed by the Minister's point.
My Lords, I thought that I had made it clear in the latter part of my speech that if the noble Lord wished to pursue this matter in that context, my noble friend Lord Bassam and I would be willing to talk to him and to the Liberal Democrats to see whether there is a way of meeting their objectives which does not meet the objections that we have currently spelt out. I believe, therefore, that mine is a fair reaction to the points that have been raised in this debate. It does not alter the basic impropriety of pressing the Motion tonight, but it is a positive and a constructive reaction.
My Lords, it is possible that in that event we would make a tiny bit of progress but, of course, we would still have no guarantee that our position would be met any more sympathetically when we come to Report stage next Tuesday. It would give us more confidence in the noble Lord's bona fides if he simply decided not to proceed this evening with the affirmative order, but to withdraw it, in which case my amendment would fall and I would certainly withdraw my Prayer against the negative instrument. Those matters could then stand aside until we see what happens next Tuesday. In that way, the Government would have to produce some goods next Tuesday. If they do not produce any goods next Tuesday, we would still have some power.
The fact of the matter is that if I do what the Minister would like me to do, I shall be left tomorrow morning absolutely powerless. The Liberal Democrats and I would be left without any clothes at all so far as this battle is concerned. We want the Representation of the People Bill for other reasons, and the Government know that we would not play ping-pong in relation to it and invoke the Parliament Act. Frankly, the Government are asking me to give away what little weaponry I have to try to persuade them to come forward with a decent solution.
Far be it from me to advise the noble Lord on his powers; this is not the normal job of the Government Front Bench. Nevertheless, his Prayer is, of course, a Prayer against a negative resolution. If he withdraws it, it is still laid before the House and he can therefore bring forward his Prayer before the House at any time. He would not be bereft. I hope that he does not use it; I would expect him not to use it; and I would expect a constructive outcome. Nevertheless, it is untrue to say that he would be bereft of all power if he did not press his amendment tonight.
My Lords, I understand that, but we are left with the affirmative order. I do not believe that any damage would be done to the Government's position if we could genuinely make progress next Tuesday. No damage would be done to the Government's position if they withdrew their affirmative order and I withdrew my Prayer. That would put us on all fours and we could go on to discussions; see what conclusion we could reach; come forward with an agreed package at the Report stage, or even at Third Reading if the worst came to the worst, of the Representation of the People Bill; and then the affirmative order before us and the negative order would pass happily without further comment. That is a reasonable proposition, rather than asking the Liberal Democrats and myself to take on faith that we shall make a little more progress on Tuesday.
The Minister can withdraw his Motion, which means that my amendment falls. I shall then happily withdraw my Prayer. If the Minister proceeds with his affirmative order, I must ask my noble friends--and my new noble friends, too--to join me in the Lobby.