Parliamentary Voting System and Constituencies Bill — Report (1st Day)

– in the House of Lords at 3:17 pm on 7 February 2011.

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Votes in this debate


Moved by Lord McNally

That the Report be now received.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

My Lords, as we begin Report on the Bill, we believe that it is important that the House is updated on our position on the Bill. We invite no prolonged discussion at this stage on the timing of Report.

The Bill is acknowledged on all sides of the House to be a significant constitutional Bill that has not been the subject of what is regarded as the norm for such a Bill-either public consultation or pre-legislative scrutiny. Report has been brought forward without the 14-day gap that convention requires between Committee and Report. These conventions exist for a reason. That 14-day gap allows consideration and discussion in Committee and then the formulation of amendments for Report and preparation for their debate. There has been one sitting day between the end of Committee and Report. It is for your Lordships to judge whether the many issues raised by the Bill meant that it was never going to be possible to scrutinise it properly in the time sought to be allotted by the Government.

We think it right to register the point about the gap, but the mood of your Lordships' House has been to encourage the participants to resolve the problem by negotiation. The Opposition have supported and participated in this actively. They have been greatly assisted by the intervention of the Cross-Benchers. We have negotiated at all times in good faith. The Government indicated a basis for agreement on the main issues, to which the Cross-Benchers have responded, with our support, in accordance with the Government's suggestions. Cross-Benchers have discussed amendments with the Government in accordance with what they believed the Government were indicating, but no agreement has been reached.

Our system of self-regulation works only if the parties are willingly to negotiate honestly and skilfully and can reach agreement. However, we want to help the process and to do so we have agreed today that we will seek to complete Report on Part 1 of the Bill today. There is a way to go, but my sense is that your Lordships want to get on. It is a token of our good faith that we seek to complete Part 1 today. No one could suggest that that was not very reasonable progress. We want this House to consider these matters in a reasoned and reasonable way, and we very much hope that the Government will respond to this. We want this House to be able to consider and, as appropriate, vote on the key issues before us on Report to encourage resolution by agreement.

Photo of Baroness D'Souza Baroness D'Souza Convenor of the Crossbench Peers

My Lords, last week an amendment on public inquiries was tabled from the Cross Benches as a possible means of arriving at a compromise agreement between the Government and the Opposition. The Government promised to come back with a modified amendment. Following this there was an agreement that Committee on the Bill should be completed, as it duly was, last week. We are now on Report and we have further amendments on public inquiries, thresholds and the percentage variation. Perhaps this is an appropriate time to reiterate the role of the Cross-Benchers by laying particular emphasis on their being politically unaligned.

The amendments before us-some usefully tabled by expert Members on the Cross Benches-are to do with content, not process. As the current Convenor, I do not and cannot speak for one party or another in this debate, although as individuals, me included, we will vote according to what each of us thinks are useful amendments and what is an appropriate way forward. I can say that Cross-Benchers as a group wholly support the main task of this House, which is scrutiny. It follows that anything that might interfere with that role, be it a programme timetable, filibustering or flouting of the conventions of this Chamber, would probably not be supported. Thus the normal convention at this stage is that Report should go ahead, that reasoned arguments be put, that Divisions take place and that the Bill goes to the House of Commons by 14 February. I say with some confidence that this would be the view of the majority of the Cross-Benchers.

As your Lordships know, a great deal of negotiation has taken place. However, what is now called for is that the essence of these negotiations comes to the Floor of the House and that opinions be canvassed by means of voting. Whatever the outcome of the Divisions, the Bill would go back to the other place for consideration. This is the way in which this place has, for perhaps hundreds of years, conducted its business. Many of us might feel that we should now return to these practices and that necessary compromises are made at the final stage of the Bill, which is Third Reading, next week.

Photo of Lord Strathclyde Lord Strathclyde Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, I thank both noble Lords who have spoken in a most constructive way. I agreed with the noble and learned Lord, Lord Falconer of Thoroton, when he said that this should not be the occasion for prolonged debate. I very much welcome the reiteration by the noble Baroness of her role as Convenor of the Cross-Benchers, the role of the Cross-Benchers themselves and her interest in the process of scrutiny. Individual Cross-Benchers can take different views on the content of the Bill as it progresses.

It is true that there are normal minimum intervals, which have been shrunk on this occasion. The reason for that is plain. For the Bill to become law it needs to return to the House of Commons at the end of play on Monday 14 February. That has been well known by Members of this House. However, the House has flexibility to reduce minimum intervals, and that is what we are dealing with. Indeed, some of the amendments that we will deal with today were last dealt with in Committee on 30 November. The House will feel, therefore, that we will have plenty of time to examine it. Time is not unlimited. That is an important consideration. I respect what the noble and learned Lord said about completing Part 1 today. That is right, sensible and achievable. I am sorry that he did not go on to say that he would be able to complete Part 2 this week, but I have to hold out the hope that we will be able to reach agreement so that Report can be completed this week in time for Third Reading on Monday. We will also continue to work with the usual channels, because it is also the will of the House that we should try to focus the key debates on this Bill at a time that is most convenient for noble Lords to make their voices heard in a Division.

Report received.

Clause 1 : Referendum on the alternative vote system

Amendment A1

Moved by Lord Rooker

A1: Clause 1, page 1, line 5, at end insert-

"( ) If less than 40% of the electorate vote in the referendum, the result shall not be binding."

Photo of Lord Rooker Lord Rooker Labour

My Lords, it is best if I briefly state what this amendment does not do. It does not prevent the referendum taking place. It does not have a threshold that stops the proposed change in the Bill taking place. It simply allows the compulsory change in the Bill to be activated only if the turnout is 40 per cent plus. If it is less than 40 per cent, it still allows the change but requires the decision of a Minister to do so, which probably implies a debate in this House and the other place. In other words, if the turnout is 40 per cent plus, we get a binding compulsory change. If it is less than 40 per cent, it becomes discretionary. All my amendment does is to make the referendum effectively consultative if the turnout is less than 40 per cent. In fact, it takes in the debate that we had in Committee on an indicative referendum along with some of the debates on a compulsory threshold and compromises on both those issues-something that has been sadly lacking from this coalition-to try to put to the House an amendment that allows the Bill to operate in a more sensible way.

As I have said, I think that it would be controversial in some ways if the thresholds-on which there are amendments-were put in simply because people go back to what happened in 1979, which left a sour legacy. On the other hand, this is a major piece of UK constitutional legislation that affects every voter in the country. I am not clear that it is right to do this without more consensus than we have in the Bill. A high turnout and a small majority would be as bad as a low turnout with a large majority. Before we embark on this we should have an assessment of the result of the referendum. My compromise is that we can assess it only if the turnout is less than 40 per cent. If it is more than 40 per cent, there is no assessment and the result is binding. That is the way we have done it in the past. We have had a referendum, and then assessed the result before we make the changes. In this case there is a halfway measure-we do it only if the turnout is less than 40 per cent.

If the Government get their way-they want a high turnout on May 5-it is implied that probably the turnout will be higher. I do not prejudge that. If it is indicated by the people of this country that they are not actually four-square behind it, the amendment allows us, in certain circumstance, to have an assessment and to rethink the way forward.

The amendment is reasonable in the extreme-far more reasonable than anything I have heard so far. Twice in the past fortnight I have heard the Leader of the House mention at the Dispatch Box a package of concessions. There is no package of concessions on the Marshalled List as far as I can tell. Given what we said in Committee-we are not trying to repeat what we did but are taking part of two debates-I think that my amendment is frankly so reasonable that it should be passed on the nod. It would not wreck the Bill or the referendum and would allow a pause to assess whether the turnout is low. What is wrong with that? I beg to move.

Photo of Lord Blackwell Lord Blackwell Conservative 3:30, 7 February 2011

My Lords, I have been a loyal supporter of the Government on this Bill but I confess that this is one amendment where I have sympathy with the proposer given the role that referendums may have in other constitutional issues and the precedent that may be set. I ask myself how comfortable I would be with a referendum on joining the euro if less than one in five of the population-that is, 20 per cent-voted for it; or, indeed, with a referendum on leaving the European Union if a similar result emerged. Therefore, the Minister needs to address how the precedent set by a referendum on this issue might affect precedents set on other grave constitutional issues that might also be the subject of referendums in the future.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour

My Lords, my starting point is clear and I think has widespread acceptance throughout the House-namely, that what is proposed is a major constitutional change. I hope that the House is with me in saying that a constitutional change of this magnitude should have legitimacy, particularly as the hallowed rules of the game, which have stood the test of time over a long period, are being changed. Therefore, a means has to be devised to show that such a change has at least reasonable support among the electorate. The object is to make any such change as long-lasting as possible so that any future Government are not tempted to alter the rules of the game as they would recognise that there was a sufficiently broad consensus. Otherwise, there is a danger that the change will be deemed to be no more than the view of one Government which can be properly reversed by a successor Government. I warn the Government that if they steamroller ahead-already there have been great affronts to our normal conventions on this-a future Labour Government-such a Government will arise, although we do not know when-will be tempted to say that they are not persuaded that the change has sufficient support, and therefore that they are minded to change it.

Therefore, the key question for the Government is: do they seriously think that it is important that such a change has wide popular support? Putting it another, simpler way: do not most reasonable people in the House agree that it would be absurd if only 25 per cent of our electorate were to turn out and there were to be-if I have done my arithmetic correctly-13 per cent for and 12 per cent against? Would that be considered a sufficiently strong basis for a change of this nature to be agreed? I hope that most reasonable people agree that it would be absurd if such a change were to be agreed on such a flimsy basis. It would be contrary to the spirit of our constitution, the way that we work and, indeed, the way in which this House tries to ensure a reasonable response to proposals.

I fear that there could be quite a small turnout. Between now and the proposed date of the referendum we have but two months. However strong the efforts that are made by the umbrella organisations for and against the referendum and however strongly the Government try to whip up enthusiasm, I fear that there will be substantial apathy. There is widespread disillusion at government generally; and the Deputy Prime Minister, who has been most personally linked with this proposal, is not the most popular member of the Government. Whatever the merits of the case, people may find that a convenient way of showing their disapproval of the Deputy Prime Minister is by voting with their feet. This is perhaps part of the problem of a referendum; it very much depends on who is putting the proposal and the time at which it is put. We saw that, for example, in our own referendums. In 1979, an unpopular Labour Government put forward proposals for devolution in Scotland and Wales, which, certainly in Wales, were mightily rejected. Equally, in 1997, when the bliss was in that dawn, a new reforming Labour Government managed to get not a 4:1 rejection of the proposals, as in 1979, but a majority for them-just.

On a further point of sadness, it appears that the Government are probably not in a mood to make concessions. This rather wooden response of theirs may be part of the problems of coalition politics. I cite in evidence the debate on the Isle of Wight proposal. We understood, from the excellent speech of the noble Lord, Lord Fowler, that all parties on the isle were in favour of an exception being made. The noble Lord made an extraordinarily strong case for that. It was quite clear to all of us that whatever arguments we might seek to raise it was easy to see that the Isle of Wight would not provide a precedent for other areas of the country and was unique. That surely should have been an opportunity for the Government to say, "We are a listening Government; we have heard the arguments and we are minded to change our position". But no-the Government insisted on putting the proposal to a vote and were then roundly defeated. Worse, they then tried to claim some benefit, saying, "This is one of the great concessions that we have made", when clearly any listening or reasonable Government not bound by a coalition agreement would have made some concession on that point.

I turn speedily to the amendment on what happens if fewer than 40 per cent vote. This provides an escape route for the Government, and I return again to the Cunningham amendment in 1979, with which I had some experience, all those years ago. I make but two short propositions. First, in many countries, there is special provision when there are proposals for constitutional change. It is not enough to have a bare majority in one or both Houses of the legislature. Secondly, there is special provision in many countries where a referendum is held to ensure that more than a bare majority is required-hence the proposal for a threshold.

I could detain the House for a long time with the results of my research on this issue. My objective is not to detain, and to accept that practice varies from country to country. I shall give a few examples, if I may, of the two propositions. First, I cite Article 5 of the US constitution, which demands that before an amendment to the constitution can be made:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention", and so on. There is also a precedent in Germany, which I shall not quote, under Article 79 on amendment of the basic law. There is also Section 128 of the Australian constitution.

Again, because of pressure of time, I shall neither cite these amendments to constitutional provisions nor detain the House by going through a litany of other countries. I concede that all the examples that I have given relate to federal constitutions, but it can plausibly be argued that in this country we are sleepwalking toward a quasi-federal system. Already, Scotland has primary legislative powers. With the Welsh referendum in March, we have the prospect of substantially increased powers. As a slightly humorous aside, after the unfortunate rugby match on Friday one companion said to me: "Well, we may have lost the game, but we shall win the referendum". That may be a small consolation for the result on Friday.

The object of thresholds for referendums has always been to show that there is an appropriate majority in the country for the proposal: otherwise, as I have said, it could be short lived. It would be a temptation for a future Labour Government to return to the issue if there was not a basis of sufficient consent. Clearly, there are different forms of special majority. I concede that a number of countries have a different view. For reasons of time, I will refer to, rather than quote from, the 1975 Nairn committee proposals. In this country we had a referendum in 1975 on the EU without a threshold clause, but which produced a 2:1 majority on a very significant turnout. We had the threshold commitment in 1979: I believe that Hansard will show that the Leader of the House conceded to me that this was an opportunistic response on behalf of the then Conservative Government, which fully supported the Cunningham amendment of 1979 on a 40 per cent turnout. Perhaps consistency is not something that one should hang around the neck of any politician. However, there was a threshold for the proposal for a regional assembly in the north-east and for other matters such as tenants' choice and the education Bill.

Overseas examples are legion. Again, I will not go through the various constitutional proposals of Denmark, Ireland, Italy and Switzerland. The Government claim to be particularly close to Sweden at the moment. Sweden has strong constitutional provisions, which I will not quote, which related to proposed changes. So does Australia. The Government loudly say that they are very committed to the Commonwealth. Not only Australia but many other Commonwealth countries have appropriate provisions for constitutional change.

I end by saying that the principle is very clear. We want to avoid the absurdity of a low turnout and a lack of public interest determining a key change to our constitution. We must recognise the special nature of such a vote if we wish the result to last. If the rules of the game are to be changed, we must ensure that there is an adequate majority and an adequate consensus in our country as a whole.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour 3:45, 7 February 2011

My Lords, this is one of the most important issues before us on Report on Part 1 of the Bill. The amendment tabled by my noble friend Lord Rooker is eminently sensible. Surely we should all be able to agree that, where major constitutional change is concerned, there should be a search for consensus. Major constitutional change should not be made on a small participation in the vote.

I fear that turnout at the referendum will be low, partly because the question of whether we should switch from first past the post to the alternative vote system of elections is fairly obscure and technical, and partly-this is a very important factor-because this legislation, proposing as it does such important changes to our constitution, has not, as convention and normal practice require, been the subject of public consultation by way of a Green Paper or pre-legislative scrutiny. That means that there has not been an extensive debate, other than in your Lordships' House, where the extent of the debate has been well justified in these extraordinary circumstances. In the time that will be available between this Bill reaching the statute book and the day that the Government have appointed for the referendum, 5 May, there will be very little possibility of the Electoral Commission explaining to, informing and, indeed, educating the people of this country about the choice that it will fall to them to make. Those are significant reasons why we should insist that there should be a substantial turnout if the result of this referendum is to be binding, and I think that a minimum turnout of 40 per cent, as proposed by my noble friend Lord Rooker, is well judged.

I think that there should always be a high hurdle in a referendum. It would be intensely undesirable if Governments got it into their heads that referendums were a readily available, convenient way of introducing a change that they happened to think was desirable. I very much heed the advice of the Constitution Select Committee of your Lordships' House. In its report on referendums, it has made it very clear that it considers referendums to be in principle undesirable and inconsistent with the principle of parliamentary government. Although the committee concedes that referendums may be appropriate on significant constitutional issues, I am sure that the tenor of its recommendations is that we should not automatically reach for referendums as a convenient device for the Government of the day; rather, it should be rare and difficult for a proposition to be put to a referendum.

I take the view that, where there is to be a referendum, it should be advisory rather than mandatory. Again, my noble friend Lord Rooker has proposed to the House a very sensible compromise: if there is a majority on a genuinely substantial turnout, we accept that this referendum will be mandatory but, if the turnout is less than 40 per cent, the question of where we go from there will come back to Ministers and to Parliament. That all seems very sensible. Surely, when we are developing constitutional change, we should do all we can not only to achieve consensus between the parties in Parliament but to achieve a substantial consensus in the country. Therefore, I support the amendment.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

My Lords, I think it is only right for me to pay tribute to the noble Lord, Lord Rooker, who was regarded with much affection during his time as a Minister in Northern Ireland. However, that also leads me to my questions about his amendment. He was famed for his plain speaking and uncluttered thinking, but sometimes the simple response to a complex issue may not be the right one, and I think that that is the case with this amendment.

Two of the amendment's components trouble me. The first is the notion that it should be a non-binding referendum; in other words, we say, "This is so important that we must hear what the people have to say. But if we do not like what they have to say because of the numbers who turn out to vote, the Government will then do something different from what the people have said". I do not think that that is a very advisable to ask the people what they think but then for the Government to decide whether they will follow through on that. However, it goes further than that. The noble Lord, Lord Rooker, will be very familiar with the fact that the only elections in Northern Ireland which are not held on a proportionate basis of some kind-in fact, all the rest are held on the STV system-is the election to the House of Commons at Westminster. I could very easily see a situation where the turnout in Northern Ireland was much higher than in other parts of the United Kingdom-that is not unusual-and where there was overwhelming support for moving away from the first past the post system, as it is not used for any other elections and no one in Northern Ireland seriously proposes going back to it.

Of course they would rather have STV but that is not on the agenda at the moment. Northern Ireland could vote overwhelmingly for a move away from first past the post and the Government could say that the rest of the UK have not voted in such numbers-although the outcome is still clear-and have the freedom to ignore the situation or to espouse it. If this is what the people want, maybe we should move away from the first-past-the-post system in Northern Ireland-and perhaps in other parts of the UK-and argument could then begin to emerge that the Government had the freedom to bring forward different electoral systems for the one Parliament. That would not be a change because it is already the situation in our elections to the European Parliament. It would not help to bind things together in the United Kingdom if we had different forms of elections to the House of Commons.

I am seeking to show that what appears a simple, straightforward, elegant way of addressing a potential problem in fact opens up a series of other matters which have not been referred to in today's debate. I give way to the noble Lord, Lord Reid, who is also a much distinguished servant of Northern Ireland.

Photo of Lord Reid of Cardowan Lord Reid of Cardowan Labour

I thank the noble Lord for that. His argument would carry immense weight if not for the simple fact that the circumstances-historically, socially and constitutionally-in Northern Ireland are unique in the United Kingdom. Nowhere else has a referendum been held inside and outside the United Kingdom at the same time, as was the case with the Good Friday agreement; nowhere else is there a Chamber where automatically all of the parties must share a percentage; nowhere else are there constitutional arrangements which stand completely at odds with every other part of the United Kingdom, for very good reasons. Therefore, the arguments the noble Lord has made very eloquently fall on the simple point that Northern Ireland is already unique, and anything that added to that uniqueness would be marginal compared to the differences that already exist.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

I am grateful to the noble Lord for his intervention. However, I am sure he will not go back to Scotland to argue that Scotland is not unique in its history, culture and background.

The point is not the uniqueness of the situation in Northern Ireland but the importance of holding together a single system for election to the House of Commons so that various procedures do not enter into it which have the untoward effect of differentiating representation in the House of Commons. We need something which binds our United Kingdom together. That is why the simple and, on the face of it, not unreasonable proposition from the noble Lord opens up all kinds of other boxes. That is not his intention but it is a real possibility, and that is why I oppose the amendment.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

Like my noble friend Lord Blackwell, I have been a loyal supporter of the Government throughout this Bill. However, like him, the amendment gives me cause for concern and I feel there is a lot in what the noble Lord, Lord Rooker, has said. I share my noble friend's views about the danger of a precedent being created in this way without any threshold.

The noble Lord, Lord Alderdice, argued persuasively that we may not like what the people have said. However, as I understand it, under the amendment of the noble Lord, Lord Rooker, 60 per cent of the people will have said nothing. They will not have said that they are in favour of it; they will just have stayed away. That is hardly an argument for there being the high-level consensus for the change that it is proposed to bring in.

Even with the noble Lord's amendment, we could have a binding referendum with one in five people voting in favour of it, which seems a perfectly satisfactory threshold. My concern is more about different results from different parts of the United Kingdom, to which he refers. We may have different turn-outs in different parts of the United Kingdom because of the nature of the elections that are taking place on the day. We may have low turn-outs in one place and high turn-outs in another, and large parts of the United Kingdom may feel that they have had a system foisted upon them in circumstances where they have voted against it and there is not the level of consensus required.

For me, the danger of having no minimum to which we can point as giving a level of participation across the country represents a grave danger to the unity of the kingdom, because all parts of the kingdom may not feel that they have been treated fairly.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, I have, for my sins, tabled Amendments 11 and 15 in relation to a 40 per cent threshold, but I have considerable doubt whether those amendments are in any way superior to this one. The effect of my amendments, if I may so call them, would be completely to nullify the effect of the referendum. It would be as if it had never happened if it was carried by a yes vote but the turnout was under 40 per cent. That would be the end of it, it would be totally expunged.

The effect of the amendment proposed by the noble Lord, Lord Rooker, is very different. It states that the referendum stays. The referendum has no mandatory effect, but it has a consultative effect to which, obviously, the Government of the day would be under considerable moral and legal obligation to pay the highest heed. That is the difference between them.

The beauty of the amendment of the noble Lord, Lord Rooker, is that it gives great flexibility. It enables the Government to take into consideration all the matters which are relevant to its ultimate determination, including the level of turnout. For example, if the turnout was 39 per cent, it seems to me that it would be entirely proper for a Minister to say, "In the circumstances, we see no reason why we should not accept this as, effectively, the will of the people". On the other hand, if the turnout was 29 per cent, that might be very different. If there were special circumstances in relation to polling day, they, too, would be relevant factors to be taken into account.

The beauty of Amendments 11 and 15, however, is that they give certainty. There would be no question of any dubiety about whether the Government of the day were acting properly and fairly or were in any way tinged by partisan considerations. It would be absolutely certain. It is said that Sir Walter Raleigh, contemplating the axe that would put an end to his life, said, "It is a sharp but certain remedy". That is what my amendments would be: a sharp and certain remedy, possessing the merit of certitude but lacking any flexibility.

Three questions should be asked about the issue which are relevant to my amendments, and I shall not repeat them if I speak on those amendments. First, how serious would it be if only a derisory turnout supported a yes vote? Secondly, is a 40 per cent turnout threshold the right way to go about it? Is it fair and just? Thirdly, would any alternative in all circumstances be worse?

I start with a proposition which I suppose that everyone in this House will accept: this situation is unique. We have never been this way before. Only one all-UK referendum has been held, in 1975 on the question of whether Britain should depart from the European Union. That was not a mandatory referendum; it was a consultative referendum. I have read the Act again. There is nothing in the Act that says in any way that it is authoritative, so it could only have been consultative. I am sure that that is the correct constitutional judgment in the circumstances.

Therefore, we have the unique situation of an all-UK referendum that is mandatory. How serious would it be if there was a derisory turnout? I believe that that would eat like acid into the very roots of our parliamentary and constitutional system. I do not believe that one can exaggerate what would be the case. There is cynicism abroad already about this House and the other place. That cynicism would be multiplied many times if it were felt that changes had been made that turned only perhaps on a percentage of 10, 15 or 20 per cent.

It can be said that Governments are elected on very small majorities and with very small turnouts. That is certainly the case: I think in 2005 it was under 22 per cent, as has already been said. Governments come and go: massive features of the constitutional landscape remain. That is what we are dealing with.

The next question is whether this is the way to deal with this matter. Yes, I believe that it is. One could certainly consider the alternative of a majority provision, where a majority has to be x per cent. Many will remember the Cunningham amendment of 1979 which operated in Scotland and in Wales. The very eminent constitutionalist Professor Bogdanor laid the situation bare in the following way. With an 80 per cent turnout, you could achieve that 40 per cent majority with half of that vote plus one vote. With a 70 per cent turnout, you could achieve the 40 per cent majority with 57 per cent of those electors voting yes, which is a high percentage. However, with only a 60 per cent turnout, which would be very substantial-I think that was the turnout in Scotland in 1979-you would need 67 per cent of those electors to vote yes; a level so high as to be virtually impossible.

The idea of a threshold condition, therefore, is entirely proper. I am in grave doubts as to whether my amendment has merit over that of the noble Lord, Lord Rooker, or whether the amendment of the noble Lord, Lord Rooker, has merit over mine. But if the House is of the opinion that this is the way to do it, I would completely accept that.

As regards the 40 per cent, that is about right. With regards to Sir Patrick Nairne, I think there were two sittings-the 1997 and 2006 sittings-when turnout thresholds of 50, 60 and 70 per cent were discussed Bearing in mind that in no general election since time immemorial-as far as I know-has less than 50 per cent of the electorate voted, and that in the previous referenda referred to the turnout was always 50 to 60 per cent, 40 per cent seems to me to be right and proper.

I do not accept the canard that by having a threshold an abstention amounts to a no vote. That is utterly misplaced and misconceived. There is no evidence one way or another. It is as likely as not that, were there a threshold, persons who are mildly disposed in favour will be brought out to vote. But if one places oneself in the mind of an ordinary elector who had doubts about the matter in hand, one can ask whether he going to vote or to abstain. If he votes, there is a stone cast deliberately and positively against the proposition. That stone will be part of a pile that he hopes will be sufficient to defeat it. If he does not vote, there is uncertainty as he does not know whether the threshold will be reached.

Photo of Lord Tyler Lord Tyler Liberal Democrat 4:00, 7 February 2011

My Lords, does the noble Lord accept that in those circumstances an abstention counts as a no vote and so discourages participation in the whole exercise?

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I readily accept that an abstention can count as a no vote. Whether it would in most cases, with great respect to the noble Lord, I do not think anybody can say. I am quite certain that it is wrong to assume that an abstention is always equivalent to a no vote. That is my proposition. I do not think that I have anything useful to add to the matter, save to say that what is at issue is the credibility of the parliamentary system-credibility that would be greatly damaged if some provision of this nature were not resorted to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

My Lords, this is an important amendment, which goes to the legitimacy of any change to the voting system. First, I do not believe that the stages in the argument are substantially in dispute. The referendum deals with an important constitutional issue and I have not heard anyone say that we should not have a referendum. There are people who object to referendums but, by and large, if our country is having referendums, this is an issue to have one on because it changes the voting system.

Secondly, this is an unusual Bill in so far as a referendum is concerned because it provides for a compulsory referendum, not an advisory one. By that I mean that if the vote is passed, the consequence is not that Parliament would then produce another Act of Parliament, as it did with the Scotland Act and the Wales Act, but that there is automaticity in that the Minister is required to bring forward an order that would automatically, in the light of the vote, give effect to the change in the voting system.

Thirdly, the effect of the provisions is that if, for example, there was a turnout of 25 per cent in the referendum, which no one regards as an outlandish percentage, you could end up with what is regarded by all as a major constitutional change being produced by 12.5 per cent of the country supporting it.

Fourthly, the reason why a referendum is required is that in constitutional change of this importance-and no one disputes its importance-it should be harder rather than easier than normal to effect such a change.

Fifthly, this is a change that has the support of the Liberal Democrats, while the Labour Party is divided on it and the Conservatives are against it. The effect is that it is almost certain that unlike with, for example, the Scotland Bill, the Wales Bill and the European common market in the early 1970s, Parliament would vote in favour of these changes. That means that, if there is no threshold, you have a situation where, far from it being harder to bring about this constitutional change, it may well be easier than it would have been with a normal Act of Parliament.

The noble Lord, Lord Elystan-Morgan, said that if you ended up in a situation where the referendum was passed by 12.5 per cent of the electorate, which would be the position, the legitimacy of the change would be considerably in doubt. I agree with that. It would-I quote the noble Lord-"eat like acid" at its legitimacy and put our voting system in play for whoever next forms the Government. There needs to be some protection to ensure that a major constitutional change such as this is not easier to make than through a normal Act of Parliament.

I am aware of the history of this matter, which is coloured by the threshold that was inserted in the 1978 Bill in the House of Commons. At the Committee stage, there was an interesting debate on that, during which George Cunningham, then the Member of Parliament for Islington South and Finsbury, in a very powerful speech persuaded Parliament that it would be wrong to make such a major change without there being a threshold.

Photo of Lord Tyler Lord Tyler Liberal Democrat

Will the noble and learned Lord explain one point to me? His colleague in the other place, Mr Christopher Bryant, made a powerful speech against any threshold in this Bill, on which the Commons voted by 549 to 31. Why does the noble and learned Lord differ from his colleagues in the other place?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

I do so for two reasons. First, if one reads Mr Bryant's speech, one sees that he made it clear that this was a matter for the Lords to form a view on. Secondly, the amendment moved by my noble friend Lord Rooker does not provide that the proposal would automatically fail, which was what was voted on in the Commons. My noble friend has come up with what seems a sensible conclusion to make the referendum an advisory one, which, as noble Lords have heard from the quotes from the Constitutional Committee, is the norm in our country. My noble friend has found a way through in relation to that.

This is important. We were unsure what our position should be precisely on the point made by the noble Lord, Lord Tyler. We had a different position in relation to a drop-dead referendum, where, if you did not get a 40 per cent turnout, that would be the end of it. Instead, my noble friend has found a way through that.

I have listened with interest and respect to what was said by the noble Lord, Lord Alderdice, about the Northern Ireland position and to what my noble friend Lord Reid said. My view is that we are dealing with a voting system for the whole of the United Kingdom. Once one accepts the proposition that there needs to be something special in order to justify this change, there has to be support throughout the whole of the United Kingdom, which obviously includes Northern Ireland. Although I listened with respect, I do not think that the reason given means that the simple solution that my noble friend Lord Rooker has produced is inadequate.

The noble Lord, Lord Hodgson, said that there would be a differential turnout in relation to this referendum because there will be local, Scottish Parliament or Welsh Assembly elections in some parts of the country but not in others. If you have a UK-wide threshold for turnout, that assists in making sure that the differential turnout does not affect the result.

The Opposition support the noble Lord, Lord Rooker. We believe that what he has said will promote acceptance of AV, if that is the change, which is good for the country. If there is a majority among those who vote, but the 40 per cent threshold is not reached, it will then be open to Parliament to conclude that that is sufficient, but the matter would have to come back to Parliament. There would have to be a piece of primary legislation; it would not depend just on a statutory instrument. My noble friend's proposal does not rule out-

Photo of Lord Rennard Lord Rennard Liberal Democrat

Is the noble and learned Lord suggesting that it would be open to Parliament in that event to reject the result of the referendum if, say, on the mathematics that I have just worked out, 13.5 million people voted yes in the referendum-a greater number than have voted for any Government in recent general elections-and 4 million people voted against? If so, the will of 13.5 million people voting yes would not count, while the will of 4 million people voting no would. Ultimately, he says that the matter would go back again to Members in the other place to decide what the voting system should be for voters, rather than leaving it for the voters themselves to decide what system they have for choosing their elected representatives.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

The position would be exactly the same as it was in relation to the Scotland Act, where a massive majority voted yes in favour of Scottish devolution. It was open to Parliament to say no to all those people in the Act that followed, but of course Parliament said yes. Unless you take the view that one completely discounts Parliament altogether, it is unlikely that such a conclusion would be reached, but suppose that the position were that 5 million voted yes and 4.5 million voted no. Let Parliament decide what should then happen. That is the effect of the amendment moved by the noble Lord, Lord Rooker. With respect, that is a very sensible conclusion and one that is entirely in line with our parliamentary democracy. We on this side of the House will vote in favour of the Rooker amendment and I hope that other noble Lords will do so as well.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office) 4:15, 7 February 2011

I thank the noble Lord, Lord Rooker, for tabling his amendment and for allowing the House to have an opportunity to debate what I think has been recognised as an important issue. It was debated in Committee and we now have an opportunity to further debate it and other amendments.

The noble and learned Lord, Lord Falconer, indicated, as have many other contributors, that this is a serious constitutional issue. Its seriousness is marked by the fact that there is going to be a referendum at all. The noble Lord, Lord Anderson of Swansea, made reference to this House's Constitution Committee, whose report saw referendums as being used only for matters of the highest constitutional importance. It is fair to say that, with the exception of the proposal for a referendum on AV, the constitutional measures in the so-called CRAG Bill that we dealt with briefly before Dissolution last year were not deemed sufficiently important to trigger a referendum. The Government recognise the importance of this issue-hence the referendum.

The amendment moved by the noble Lord, Lord Rooker, would provide that, unless 40 per cent of the electorate voted in the referendum, the vote would not be binding. It would appear, therefore, that the intention is to make the referendum indicative should the turnout condition not be met. I am somewhat unclear what the consequence would be if the 40 per cent was not reached. I wonder, perhaps, whether the provisions in Clause 8 that mandate the Minister to make the order implementing the AV provision if there are more yes votes than no votes would remain unchanged if this amendment were taken alone. It is unclear what the ultimate effect would be. There is Amendment 10B, however.

Photo of Lord Rooker Lord Rooker Labour

Amendment 10B should have been linked to this.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

That is helpful. Originally it was linked and it seems to have been delinked. The amendment would change the obligation to implement the result of the AV referendum into a power to do so.

I thought that the noble and learned Lord, Lord Falconer of Thoroton, was suggesting that there had to be primary legislation, although I am not sure whether I heard him correctly. Amendment 10B deals with that, although I should say something about the difficulties there, because there is still a lack of clarity. In addressing these amendments, I never like to lean too heavily on the technical matters, but there are important technical issues here of which the House should be aware.

The new discretion in Amendment 10B, if it were to be carried, seems to apply whatever the circumstances and not just where the referendum is made non-binding by Amendment A1 because turnout is less than 40 per cent. We might, therefore, find ourselves in an odd situation if the turnout exceeded 40 per cent with the majority in favour of AV. One part of the Bill would suggest that the result was binding, but another would suggest that there was no obligation, because there would be a power rather than an obligation to bring forward the order. I am also unclear as to the effect of the amendment in the event that less than 40 per cent of the electorate voted in the poll and the result was against a change in the system. I strongly suspect that this is not the intention but, as it stands now, the provisions mandating the Minister to repeal the relevant clauses would still stand but the result itself would not be binding. I am sure that the noble Lord will have an opportunity to clarify that. There is a difficulty there at the moment.

In addition, the amendment offers no indication of what kind of process might be followed where less than 40 per cent of the electorate voted. Even if Amendment 10B were carried, there would be a heavy responsibility on the Minister and then on Parliament if there had been a yes vote. The Boundary Commission review would be complete but he or she may or may not bring the provisions into force. As we are all aware, the boundary review will not be completed until 2013 at the earliest. Is it really the case that we want to replace the current provisions in the Bill, which provide both clarity and certainty, with provisions that could leave us with no clear resolution for the two years following on from the referendum? I am not saying that that would be the case, but that is the possibility that we open ourselves up to with these amendments. I cannot believe that that lack of clarity would be healthy.

I assume that that is not the intention of the noble Lords who are making these proposals. Perhaps they envisage that the gap in their amendments would be filled by what the noble Lord, Lord Wills-I am not sure whether he is in his place-proposes in his Amendment 10C, which is that there would be a debate in Parliament. His proposal would introduce a statutory requirement for a debate in both Houses within 14 days of the referendum result, although as it stands it would not make the referendum indicative and so would have little practical effect.

Even if the amendments tabled by the noble Lord, Lord Rooker, provided for this or some other process, I would still find it necessary to oppose them. The Bill provides that the referendum result will be decided by a simple majority. We believe that that is right, because it is the simplest, clearest and fairest way of proceeding. When people make the effort to go to the polls on 5 May, they should know that, if they vote for the alternative vote, that is what they will get. To impose a threshold or to make a referendum indicative would be to offer some sort of consolation prize-people might get it at the very end.

Reference has been made in this debate and in the debates that we had in Committee to the 1978 situation, where, because of George Cunningham's eloquence and, perhaps, the Opposition seeing an opportunity, a 40 per cent threshold was introduced. The noble Lord, Lord Rooker, said that there was a bitter taste. As one who campaigned in that referendum, I know that that bitter taste lingered for a very long time. To go out and campaign in a referendum and get a majority for the yes vote and then to be told that the majority did not count and did not matter was bitter. In terms of the cynicism of voters, which was referred to by the noble Lord, Lord Elystan-Morgan, there would be a real danger of cynicism if people went out and voted and there was a clear yes vote and somehow or other that yes vote had to be held in suspension or might not be translated into action.

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative

If that argument is correct, why does it not also apply to general elections and constituency votes, which some noble Lords wish to alter?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

Is it not also right that it was an automatic no when the level was not reached in 1978, which is not what my noble friend Lord Rooker is proposing here?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

There is a difference because the 40 per cent related to something different. I am not entirely sure that I follow what my noble friend Lord Lamont said, because in general elections there is no threshold for what the turnout should be to make those elections valid and no one has ever suggested putting a turnout-

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative

The noble Lord is in favour of moving to an electoral system in which a simple majority is not enough. At the same time, he is saying that this referendum ought to be determined by a simple majority.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

There are different types of voting system and there will be later amendments with regard to them. This is a referendum with a straight yes or no. If in a general election there were two candidates, it would be a simple, straight case of whether you were or were not elected. The difficulty arises under our electoral system where there are more than two candidates. That is why there is a difference between a straight yes or no in a referendum, where by definition one side is going to get more than 50 per cent of the votes cast and one side is going to get less than 50 per cent.

I am aware that concerns have been raised here and elsewhere about the turnout. It is clear that we all want to see high levels of turnout. I believe that this will be the case. The fact that the referendum will be combined with other elections on 5 May will help to increase turnout. The campaigns in the run-up to the referendum will increase public awareness. The work of the Electoral Commission in promoting public awareness about the referendum and the media coverage about the referendum will help. In previous referendums, the turnout has generally been above 50 per cent. It was 64 per cent in the 1975 referendum on the European Community, 60.2 per cent in the Scottish devolution referendum and 50.1 per cent in the Wales referendum in 1997.

My noble friend Lord Blackwell expressed some concern about setting a precedent if there are any future EU referendums. It is precisely because of the precedent that we should not start setting thresholds. A procedural barrier such as this can lead us into uncharted waters, because someone might come along with different thresholds for future referendums. Surely it is better to have a single, straightforward vote where people know where they stand and what the outcome will be when they cast their vote.

My noble friend raised the question of the United Kingdom. We sometimes have different votes in different parts of the United Kingdom at a general election. Sometimes that leads to some tensions, but I do not think that it is suggested that it has weakened the fabric of our union in any way.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

Does the Minister really think that on 5 May, when we have a Scottish parliamentary election, a Welsh Assembly election and only local government elections in England, the level of turnout is likely to be the same in all three parts of the United Kingdom-not to mention Northern Ireland?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

It would be rash to predict the turnout, but I think I am right in saying that 84 per cent of the United Kingdom electorate will be engaged in an election as well as in the referendum. That gives every opportunity for the turnout to be higher as a result, and it is perhaps more likely to be better in all parts of the United Kingdom than if no election was being held at all that day, when there would very much be a doubt as to the turnout in different parts.

Photo of Lord Dubs Lord Dubs Labour

I only wanted to say that London did not have elections, which is surely crucial.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

I know that, but I think that the figure that I have seen is 84 per cent. It is recognised that London does not have elections, which is probably all the more cause for those who wish to stimulate participation to ensure that it is particularly well focused in London.

As my noble friend Lord Tyler pointed out, when the question of a threshold was considered in the other place, Members there sent a very clear message indeed, voting by 549 votes to 31 votes against the proposal. I note in particular that Mr Christopher Bryant, speaking from the opposition Front Bench in the other place, said that he did,

"not think that it is appropriate to bring in a threshold".-[Hansard, Commons, 2/11/10; col. 849.]

His colleagues followed him into the Lobby.

The noble Lord, Lord Sewel, is in his place. During the debate on the 1997 referendum on devolution, he said:

"The threshold, as we have demonstrated, is one of the most dangerous introductions into the democratic process that has been engineered".-[Hansard, 7/7/97; col. 467.]

I hope that he will confirm that.

Photo of Lord Sewel Lord Sewel Deputy Speaker (Lords)

I do confirm that. I also confirm that that was an advisory referendum.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

Indeed, and I do not think that that takes away from the point. As the evidence in paragraph 193 of the Lords Constitution Committee report said:

"Despite referendums in the UK being legally advisory, a number of witnesses pointed out that in reality referendums might be judged to be politically binding. Dr Setälä argued that 'in established democracies, it seems to be very difficult for parliamentarians to vote against the result of an advisory referendum'".

It might also have been advisory, but the noble Lord, Lord Rooker, recanting on his vote in 1978 in a debate on the Regional Assemblies (Preparations) Bill on 8 April 2003 in this House, referred to the vote after the George Cunningham speech and said:

"The result was a botched referendum in Scotland, which resulted in a "Yes" vote that could not get over the hurdle ... We are now in the position where we are following the precedent set in Scotland, in Wales"- that is, a more recent precedent in Wales-

"in Northern Ireland and in London. It would be absolutely crazy and unfair if we were to change the rules for any proposed regional referendums when we have already held referendums in so many other areas of the United Kingdom".-[Hansard, 8/4/03; col. 188-89.]

The noble Lord spoke powerfully on that occasion.

The Bill offers simplicity. Above all, it offers certainty. Every vote will count and will not be distorted by any artificial barrier or threshold. My noble friend Lord Tyler asked the noble Lord, Lord Elystan-Morgan, about abstentions counting in no votes. During our debates last week on postal votes and whether people could vote by post if they had voted in person, it was clear that a number of Members of your Lordships' House were registered in two places. They can exercise only one vote, so the other vote will technically, de facto, count as a no vote. Those who have died since the register was made up will count as a no vote, because nothing here allows the register to be recalibrated to take account of people with votes at second homes or those who have, sadly, passed on. I recall very well that these unfairnesses were highlighted time and again in the 1979 referendum in Scotland.

The certainty of the will of the people should be given effect without further complex procedures or further parliamentary debate or political wrangling, so that when people go to the polls on 5 May, whatever their view on the issue at hand, that view will be heard and given effect to. I ask the noble Lord to withdraw his amendment.

Photo of Lord Rooker Lord Rooker Labour

My Lords, I did not expect words that I used as a Minister from that Box to be thrown back at me during this debate. Given that it has been a bit of a rush since we finished Committee, I would have thought, to be honest, that the Minister's advisers would have been better getting ready the package of concessions that we have been promised than trawling through my old speeches-which, I would add, were on regional referendums. This is different.

The other thing that I want to make absolutely clear is that this is not a threshold in the normal use of the word. This is not what the House of Commons voted on, or against. It is not the threshold. If it is not 40 per cent, it does not stop it going ahead. I do not wish to do that, but with all the arguments and permutations that one can think of, one can imagine lots of reasonable cases to be made to proceed accordingly after the result. All I am saying is that, given the binding nature of this, as others have said, and not knowing what is going to happen in only the second-ever national referendum, and on a key issue of changing the voting system-not like elections, where Governments come and go, as someone said-it just gives Parliament an opportunity to think again, and Parliament would be well advised to take the will of the voters. I do not argue with that at all, but I simply say that the Bill is too black or white, all or nothing.

By the way, I do not claim any credit for this amendment. I wrestled last week with how I could bring back the issue of a consultative indicative-which failed in a vote on, I think, 6 December-and deal with the idea of thresholds, which I am intrinsically against for the reasons that many noble Lords have explained. Nevertheless, we have to have this as a back-up. I was wrestling with this with a very bright young person in the back of a taxi when the solution was offered to me: join the two together-make it indicative only if the voter turnout is different. We can still proceed accordingly; we can still have the referendum, still have the result, still make the change to AV, whatever the voter outcome. I am just saying that if the voter turnout is less than 40 per cent, Parliament could say, "Hang on, we had better think about this again".

We have come a long way since those who originally proposed the alternative vote-the Electoral Reform Society and company-actually said, "It is so small a change, you do not need a referendum". That has been their case virtually all along-that we did not need a referendum on this. I do not support the AV system in the Bill anyway, but that is not the issue. I have back-up amendments, in response to the noble Lord, Lord Alderdice, because I genuinely think that you have to get a yes vote in the four countries of the UK. That is not implied in this amendment; it is there in Amendment 11A.

I accept that there is clarity and certainty in the way in which the Bill is drafted. There is too much clarity and certainty when we are dealing with an electorate of well over 40 million. It is true that on election day, as has been said-I have not yet checked the figure- 84 per cent of people are eligible to go to the polls. When you have, among the 16 per cent who are not, a massive block here in the capital city-it is not as though they are spread out all over the country-we will end up with a massive block that will get the chance to vote only in the AV referendum.

I am simply saying that this gives us an opportunity. It does not wreck the Bill-I repeat this for those who will deliberately misunderstand and misreport what we say-it does not wreck the idea of the AV referendum, it does not stop the outcome. Whatever the outcome of the election, it can still proceed if there is a yes vote. All I am saying is this; let us give ourselves, as a Parliament, the opportunity to have a rethink.

My final point is that I know that it looks simple. It is a few words-and Amendment 10B should attach to this to give discretion in Clause 8-but the general will is there. Everyone understands what we mean. If this were carried, parliamentary draftsmen would knock the other clauses into shape tomorrow to make it work. I can give noble Lords a classic example of that. The next two amendments after this-

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

I am grateful to the noble Lord for giving way. It seems to me, and I am grateful to him for it, that in his remarks about subsequent amendments on the four separate parts of the United Kingdom, which would introduce a whole load of complexities such as vetoes, and on the question of the simplicity having to be addressed overnight by parliamentary draftsmen, he has said in effect that what I said is correct: that this is not as simple as it appears and that all sorts of complexities are introduced by opening this particular box. Therefore, I think it would be best for him to withdraw this amendment.

Photo of Lord Rooker Lord Rooker Labour

I said that they were a back-up. I do not speak for anyone else. If this amendment were carried, virtually half the rest of the amendments to Clause 1 probably would not even be moved-I certainly would not move mine. I am simply saying, "Let's give ourselves a chance to think again". If we are not prepared to do that and the House is prepared to rollercoaster on to a binding referendum in which we do not know what the result is going to be and it could be carried by a majority of one on a small percentage, then I will say, "Hang on a minute, I think I want to build some more checks into this". However, those amendments are a back-up. If this amendment were carried, more of my amendments would disappear, so the noble Lord's point carries no weight at all.

It is in the House's own interest to take the opportunity to give us the chance to think again. This amendment would not destroy the Bill or the referendum and would not stop the outcome being implemented, whatever the result. I think that we should test the opinion of the House.

Division on Amendment A1

Contents 219; Not-Contents 218.

Amendment A1 agreed.

Division number 1 Parliamentary Voting System and Constituencies Bill — Report (1st Day)

Aye: 217 Members of the House of Lords

No: 216 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Amendment A2

Moved by Lord Rooker

A2: Clause 1, page 1, line 6, at end insert-

"(2A) The referendum is to be held on 5 May 2011 unless before then an order is made under subsection (2B).

(2B) If the Minister is satisfied that it is impossible or impracticable for the referendum to be held on 5 May 2011, or that it cannot be conducted properly if held on that day, the Minister may by order appoint a later day as the day on which the referendum is to be held.

(2C) Where a day is appointed under subsection (2B), the Minister may by order make supplemental or consequential provision, including provision modifying or amending this Act or another enactment (and, in particular, provision modifying or amending this Act as regards the meaning of "voting area" or "counting officer").

(2D) An order under this section may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament."

Photo of Lord Rooker Lord Rooker Labour 4:54, 7 February 2011

My Lords, in moving Amendment A2, I wish to speak also to Amendment 7B, which I shall move later. In line with what I have said previously, I give notice that I shall not move my other amendments. I have to move Amendments A2 and 7B as they are government amendments to make the decision that was taken on 6 December to hold the referendum before 31 October 2011 work.

The noble Lord, Lord Alderdice, interrupted me when I was winding up. I was about to say that when the House makes a change with a few words that we all understand, the parliamentary draftsmen have to draft a provision to make it work. Back on 6 December the House voted by four votes that the referendum must be held before 31 October 2011. I am told that to make that work parliamentary draftsmen have drafted Amendments A2 and 7B. The referendum is planned for 5 May. As far as I am concerned, that was always okay, but my view is that in case something prevents it happening on 5 May, the Government need a lifeboat to enable it to take place before 31 October. Therefore, on behalf of the coalition, I am pleased to move Amendment A2 now and Amendment 7B later.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

First, I congratulate my noble friend Lord Rooker, who knows the mood of the House much better than anyone else in it. It was a splendid victory. Perhaps I may also say how much I agree with his request for the list of concessions. I can help him on that. I was handed them at 2.29 pm this afternoon, and I have to say that they do not amount to very much, I am afraid. I obviously support the amendments that my noble friend is proposing. In effect, they make whole the amendment passed in Committee.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

My Lords, I thank the noble Lord, Lord Rooker, for moving the amendment, as he said, on behalf of the coalition. He described the reasons for it. The Bill as it stood was defective, because, while the noble Lord specified that the referendum had to take place before 31 October, there was no means for identifying when the date had to be set-hence the need for an order.

The amendment also sets an appropriate test for Ministers to satisfy before using any order-making power, whereby,

"it is impossible or impractical for the referendum to be held on 5 May 2011, or that it cannot be conducted properly if held on that day".

The test is right, because the referendum date can be moved away from 5 May only for practical reasons. It would be wrong, and have very serious implications, if the reason for that was the result of some delay that had not allowed consideration of the Bill to be completed in time.

The associated amendment to Clause 4 is also necessary in this context to ensure that the scheme which the noble Lord, Lord Rooker, envisages is properly workable. It provides a new power to make provision in secondary legislation to take account of a situation in which other polls are due to be held on any other referendum date set by the order.

Clause 4 as it stands will ensure that any poll which that clause already mentions is automatically combined with the referendum if it takes place on a new date set for the referendum. Any polls which Clause 4 does not mention would not be combined with the poll. It is impossible to say at this stage whether it would desirable to combine a referendum with other polls. A decision on that would need to be taken at the time and will depend on the types of polls.

In conclusion, I reassure noble Lords that, given the flexibility that these powers need to provide, any order made using the new powers will necessarily be subject to the affirmative resolution procedure. I end on a note of caution, because I cannot speak on this subject without saying how unfortunate it would be if the referendum were not to take place on 5 May.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, can my noble friend comment on the concern expressed north of the border about the coincidence of the referendum and the elections to the Scottish Parliament, and the difficulties that returning officers will have in ensuring that the count is available? The results may not be available on the Friday and be delayed. Will this be a problem, and have the Government any plans to avoid the difficulty whereby Members of the Scottish Parliament will not know for some time whether they have been elected and the position of the Administration in the Scottish Parliament, because of the difficulties of counting both polls at the same time?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

The noble Lord, Lord Foulkes, has an amendment later that will give us an opportunity to discuss the linkage of polls. I repeat what I said in Committee last week: it is certainly intended that the votes for the Scottish parliamentary election will take precedence over the counting of the votes in the referendum. Inevitably, there will have to be verification, because Scottish election votes may be found in ballot boxes intended for the referendum. It must be for returning officers and counting officers to determine their own arrangements, because issues of tiredness have come up in the past. It is certainly anticipated that we will not have to wait until Saturday for a result.

My noble friend Lord Forsyth expressed concern about the forming of an Administration. I have been involved twice in forming an Administration after a Scottish election. If the result had been known on the Saturday or even the Sunday, it would not have made much difference. However, that is by the way, because the intention is that the counting of votes for the Scottish election will take priority over the referendum.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 5:00, 7 February 2011

I do not wish to detain my noble friend. I understand what he said in Committee, namely that the counting of votes for the Scottish election will take priority. However, the issue is whether the process of validating the ballot papers will result in the election result being delayed. I have no idea what the results of the election will be, but it is conceivable that one political party will have a majority. It does not follow necessarily that there will be a period of the kind that my noble friend described. Given that the Government have decided to hold the referendum at the same time as the Scottish elections, they have an obligation to make sure that the result of the Scottish elections are delivered on time and are not disrupted.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

I will add that they should also be delivered accurately. Therefore, this is a matter for the returning officers and counting officers, who are best placed to judge whether counting should start immediately or the following morning.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

For once, I agree 100 per cent with the noble Lord, Lord Forsyth-the noble Lord, Lord Baker, looks very worried. I draw the attention of the noble Lord, Lord Forsyth, to Amendment 5F on page 3 of the revised Marshalled List. If the Government were willing to accept the amendment-or even better, if the Committee were to accept it-that would deal with what the noble Lord, Lord Forsyth, wants, for exactly the reasons that he put forward, which are sound and sensible.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

My Lords, we will return to this issue when we debate Amendment 5F. I look forward to the contributions of the noble Lord, Lord Foulkes, when he moves it, and of my noble friend, Lord Forsyth. We will debate this more fully at a more appropriate time.

Photo of Lord Kilclooney Lord Kilclooney Crossbench

We now know the order of priority in Scotland, but the situation in Northern Ireland is getting more confusing. In the past few days, there have been many complaints about having three elections on the one day. Will the Minister tell the Committee the order of the three counts in Northern Ireland?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

When we debate Amendment 5F, I will be able to give a clear answer to that. I do not wish to hazard a guess at this stage. I think that there has been a statement from the chief counting officer, who is the chair of the Electoral Commission, that the counting of the referendum will start at 4 pm on the Friday. I will confirm that that statement has been made, and what the order will be in the Northern Ireland elections. I think that I am right in saying that some of them are conducted on the single transferable vote, which itself takes time-I put it no higher than that. Amendment 5F does not necessarily include Northern Ireland, but now that the point has been raised I will certainly be in a position to answer the noble Lord when we come to debate it.

In conclusion, the Government still wish to see the referendum take place on 5 May. The Electoral Commission and the electoral administrators are ready. The public also will be ready, and the Government would consider it a very grave matter indeed if the referendum did not meet the 5 May timetable. In the spirit with which the noble Lord, Lord Rooker, moved his amendment, I am happy to accept it and thank him for his constructive engagement.

Amendment A2 agreed.

Amendments A3 and 1 not moved.

Amendment 1A

Moved by Lord Campbell-Savours

1A: Clause 1, page 1, leave out lines 10 and 11 and insert-

"Should that system be changed and a different system of electing MPs be introduced at the next general election?"

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

This amendment would amend the referendum question to read, "At present, the UK uses the 'first past the post' system to elect MPs to the House of Commons. Should that system be changed and a different system of electing MPs be introduced at the next general election?". This is a particularly important amendment because it goes to the heart of the question that I believe will be in the minds of the electorate.

I start from the position that we are entering a period of entrenched multiparty politics in the United Kingdom. We have at least three major parties and a number of other parties on the fringe. At this stage, we should all stand back and consider the work of Professor Patrick Dunleavy of the London School of Economics and Professor Helen Margetts of the Oxford Internet Institute, who have repeatedly pointed to the break-up of the two-party system. In their 2005 paper, they pointed to the fact that in 2005 the two-party share of the vote fell below 70 per cent for the first time. At a meeting held in the Jubilee Room some three months ago and attended by a number of Members of this House of all political and Cross-Bench persuasions, Patrick Dunleavy set out the basis on which he was arguing the splintering of party support within the United Kingdom. It seems to me that Maurice Duverger's law that plurality rule systems induce smaller numbers of parties is now being turned on its head. The fact is that plurality systems are increasingly turning in chaotic results, and this is now drawing us into a period of proportional representation and alternative systems.

I also believe that we are now undergoing a period of prolonged transition with the Scottish Parliament, the Welsh Assembly, the European Parliament, the London Assembly, the Northern Ireland Assembly and the mayoral elections all introducing new systems to British electoral arrangements. I believe, too, that the whole process is unstoppable. Indeed, when the debate on Lords reform comes to this House, it will no doubt be dominated not only by the issue of powers but by the question of which electoral system will apply in our case.

The question is: how can we manage change in relation to the House of Commons? Against the background of a break-up in the way that the electorate cast their votes, the multioptional, preferential voting scheme now on offer in this Bill can only be described as a grubby little compromise, in the sense that it is the ill-considered product of a backroom deal which in my view electoral reformers will live to regret. The fact that the Labour Government, in their dying days, tried to introduce this system in the Constitutional Reform and Governance Bill is no justification for its introduction in this Bill. Indeed, I am convinced that it would have been similarly treated if they had tried to introduce it here in this House.

I have reflected objectively, as many others will have done, on why the Liberal Democrats did the deal that they did. They probably thought that they had no option, but I believe they were wrong and that they made an historic miscalculation. They were clearly desperate to secure a deal on electoral reform at any price. There was an alternative and I think that they completely underestimated their clout during the coalition talks.

What should the negotiators have done during those discussions? First, they should have recognised that the Conservatives needed them as part of the coalition; secondly, they should have sought assurances as to continuity of the coalition, as indeed they did with the Fixed-term Parliaments Bill; and, thirdly, they should have sought and secured a May referendum but with the much simpler question that my amendment provides. The advantage in asking my question in the referendum is that the public will not get hung up on AV. In my view, AV is a complicated system which the public will never understand.

Furthermore, by asking a simpler question, we will be able to avoid rubbishing the AV system as currently proposed. If in the referendum the answer to the question I ask in the amendment was no, that would end the debate. If the answer was yes, that would mean there would be another system at the next general election. A no answer would mean that the issue was dead; a yes answer would open up every possibility imaginable. If the answer was yes, all alternative systems would have to be evaluated by some kind of inquiry and Parliament would be required to approve a new system for the next election-but, crucially, not the first past the post system, which would have been ruled out by a yes answer to the question in my amendment. Parliament could not duck the decision as it would have been mandated by the electorate in the referendum. All we need to know is whether the electorate want to end first past the post.

So who would do the evaluating and what would they evaluate? A Speaker's conference could evaluate the system or systems in the event that the referendum was to provide a yes vote. A similar form of committee inquiry-and, in certain circumstances, even the Electoral Commission if its remit was widened-could evaluate the various systems. What would they evaluate? They would evaluate AV and its variants-that is, SV and the Australian federal system-AV plus, SV plus, AMS and STV-and they would also evaluate first past the post plus, which has never as yet featured on our agenda and which, in reality, was the system that formed the background to the Jenkins commission's inquiry.

As to the timetable, under the question in the amendment the referendum would be in May 2011; an inquiry would be established in July 2011; and the report to Parliament would be in November 2011. It would be a factual report based on the various systems and the arguments both for against; it would not necessarily make recommendations. The legislation could be introduced in the Session beginning April 2012, which would be three years before the end of the five-year fixed-term Parliament and two years before the end of a four-year fixed-term Parliament in the event that that was approved by Parliament. The Parliament Act would not apply because the people would have mandated the Government to introduce a system based on the inquiry, which would be approved by Parliament before the next general election.

The programme could be allowed to slip six months. The referendum could be held in October-which I would prefer and which was proposed in the Labour Government's original legislation of early last year. Parliament would take the final decision, and even then there would be an opportunity for pre-legislative scrutiny.

From a Liberal Democrat point of view this has one huge advantage: once the people say yes to ending first past the post and introducing a new system by the next election, the least you will get is AV. That is the least you get, because the mandate from the people requires a change in the system prior to the next general election. Therefore, automatically, the minimum change would be to AV and, because all options are open, the real debate would then take place.

My amendment puts everything back on the table, but in a way whereby, in the event that there was a yes answer to the referendum question, all systems would be evaluated, so we might have the opportunity to introduce a system which, in my view, is more likely to deal with the problem that exists within the United Kingdom of disproportionality in representation.

This is the last chance saloon. I hope that, although we are late in proceedings on the Bill, Ministers will consider the issues that I have raised.

Photo of Viscount Ullswater Viscount Ullswater Deputy Chairman of Committees, Deputy Speaker (Lords) 5:15, 7 February 2011

I must advise your Lordships that if Amendment 1A is agreed to, I will not be able to call Amendments 2 or 2A because of pre-emption.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, Amendment 2A is in my name and was grouped with Amendment 3 in the name of my noble friend Lord Rooker, who did not move his amendment. If I may say so, I think that he was right not to move his amendment, because I think that the amendment that has just been moved by my noble friend Lord Campbell-Savours is the best of the bunch of the amendments before us.

I think that it is helpful to voters to disentangle the two questions-first, do you want change; secondly, what you want to change to? That would enlarge the range of choices that could be considered. There is a difference. My noble friend Lord Campbell-Savours would have Parliament determine which of the other systems which was not first past the post should be the one to go for, whereas my noble friend Lord Rooker wants to offer an à la carte menu to the electors straight away on the day of the main referendum. I like the scheme that my noble friend Lord Campbell-Savours has put forward.

It seems absurd that if we are to go to all this trouble, to have this enormous national debate, and to give the people of this country a unique option to decide whether or not to change our electoral system, a proportional option should not be made available to them. I find it bizarre that STV, which I have always understood to be the preferred option of Liberal Democrats, will not be on the ballot paper at the referendum.

Noble Lords on the Liberal Democrat Benches have told me that I need to be more realistic, that it was not possible for the Liberal Democrats to secure that outcome in the negotiations in those few days when the coalition was formed last May. I do not believe that. At that point, the Liberal Democrats could have secured the inclusion of a proportional-in particular, an STV-option on the ballot paper.

The reality was that David Cameron and the Conservative Party had lost the election. The Conservative Party-and, I assume, Mr Cameron-was frantic to get into government. We know what the Conservative Party does to leaders who it deems losers. We have seen the fate of Mr Hague, Mr Duncan Smith and the noble Lord, Lord Howard of Lympne. I do not think that Mr Cameron would have wanted to go the same way. I think that he would have been prepared to concede something that was dear to the hearts of -canonical to-the Liberal Democrats but which they apparently did not have the nerve or the skill to insist on in those negotiations. In failing to press their advantage at that point, they did the country a major disservice. If we are to have this referendum, let us have all the sensible and serious choices-or at least a selection of them-put before the people. If it is to be only a selection of them, surely it must include STV.

We know the inadequacies of the alternative vote system-I will certainly not go into them in any detail-but the sheer unpredictability of the effect of using the second, third, fourth and fifth preferences on the part of voters casting their vote means that it would be more rational to have a lottery than to resort to this system. Moreover, there are varieties of AV. For some reason, the variety of the alternative vote system that those political parties and political leaders in this country who favour it have alighted upon is the system known as optional preference ordering. As my noble friend Lord Campbell-Savours explained very tellingly in the first day of our Committee proceedings all that time ago, the evidence from Australia is that, once you cease to insist that everyone voting under the alternative vote system has to fill in all the boxes stating their preferences, the upshot is that you get a large proportion of electors only casting a vote for their preferred party. In practice, therefore, the optional preference-ordering version of AV is very little different from first past the post. It does not seem to be a sufficiently worthwhile alternative to offer the voters in the referendum. I do not mind it being there, but other serious choices ought to be on offer as well.

Photo of Lord Rooker Lord Rooker Labour

Although I am not going to move anything, I shall use my notes. When the New Zealand Electoral Commission looked at this in respect of AV, it said:

"while the alternative vote might represent some improvement over plurality ... we do not consider this improvement would be significant and do not regard it as the best alternative to our present system".

The introduction of this would not be so much a reform but a complicated reshaping of what it already had. That is why it ruled it out. It was not even considered. It was one of the four options, but as far as the Electoral Commission in New Zealand in the early 1990s was concerned, it was not even a runner.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

It must be wise to learn from the experience of other countries that have been ahead of us in considering these matters. I contend that STV, above all, should be a major option. My own amendment simply would have added it to the question that is set out in Clause 1 of the Bill: do you want first past the post?; do you want AV? I would have added the option: do you want the single transferable vote system?

I certainly do not intend to discuss at any length the merits and the demerits of STV. The virtues of proportional representation are that it is perceived by some as being fairer and that it tackles the problem-which I think is a very real problem and one of the explanations for the disaffection with our parliamentary system and our political culture that is so widely felt in this country-of the feeling that most people's votes are wasted, that elections are determined by small minorities of voters in small minorities of constituencies, and that other voters hardly need to take the trouble to vote because it is not going to make any difference to the eventual outcome as to who forms a Government. That feeling of unfairness-the feeling that the system at the moment does not give adequate and equal force to everyone's vote-is a real problem. To that extent, there is a case for STV.

People will not, however, agree about what fairness is. Some will say that a fair system is a system that creates representation in Parliament that is in exact proportion to the distribution of votes between the parties in the country as a whole. Others say that a fair and representative system is one that expresses and represents communities in Parliament. That has been our tradition. The defect of PR is, of course, that it ignores people's sense of identity in their constituency. It means that you no longer have the single member constituency-the constituency in which one person of whatever party is elected to represent and serve all the constituents-which is a very precious and valuable part of our system.

Another unfortunate consequence of STV can be that it leads to a great deal of fratricide within parties as candidates seek to persuade people to vote for them rather than for other candidates in their own parties. I will not go on about the pros and cons, except to say simply that they are numerous on both sides.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour

Before my noble friend leaves the disadvantages of proportional representation in any form, does he agree that among its most serious problems is, first, that it dilutes individual responsibility, and secondly, that it greatly enhances the power of party bosses because of their power to move an individual around in the list on which the party is elected?

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

I agree entirely with my noble friend that these are further defects, which condemn us to a perpetuity of coalition Governments and give disproportionate power to third and lesser parties, as we have seen for many years with the Free Democratic Party in Germany. I would not wish to vote for it, but my point is that people should be allowed the opportunity to vote on all the serious choices that ought to be considered when we are contemplating the possibility of changing the electoral system. I am confident that first past the post would prevail and I would campaign for it, but it would be a salutary exercise in our democracy if we were to reconsider what our electoral system should be, with every reasonable option being available to the people.

I am surprised, therefore, that what Mr Clegg thought of as a "miserable little compromise" in offering the option of voting only for AV now appears to him to be a happy little compromise. I fear that he regards it as a stepping stone towards another referendum, which he hopes will not be long delayed, in which people, finding that they have been sold a pig in a poke with AV, decide that they do wish to move on to STV after all. In an earlier debate I quoted the Constitution Committee of your Lordships' House, which deprecated the resort to referendums. Indeed, I think that to lead us from one referendum to the next because the first referendum offers an inadequate choice to the people that they quickly find unsatisfactory would be a thoroughly bad thing.

For these reasons, I support the amendment in the name of my noble friend Lord Campbell-Savours, and I hope that he will want to pursue it with all the vigour he can muster.

Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative

My Lords, I do not particularly want to follow the remarks of the noble Lord, Lord Howarth of Newport, not least in that I would not want to go down the partisan path he took in the middle of his speech, no doubt unintentionally. I do, however, want to find out exactly what is being asked because I found myself getting a bit open-mouthed at some of the things that the noble Lord, Lord Campbell-Savours, said. Do I understand that he wants a proposition that says, "Do you want change?", to which in any normal circumstance, even if your wife says that you need a new dressing gown or pair of slippers, you ask what the alternative is? Then, when they ask you what the alternative is, you say, "We do not actually have an alternative. There are a dozen, 15 or 20 of them". Once you have decided whether you want an alternative, the politicians will decide what alternative you want. I am bound to say that that totally lacks credibility, and I could not conceivably vote for it.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

My Lords, at the heart of the amendment in the name of my noble friend Lord Campbell-Savours is the proposition that there has not been sufficient examination of what the right system is. It reflects the thump-thump-thump throughout this debate that there has been no adequate examination of the various voting systems. I notice that the noble Lord, Lord Newton of Braintree, who is very much to be admired, is indicating from a sedentary position a word that suggests he does not necessarily agree, but I do not invite him to express it.

That is not just my view; it is the view of the two Select Committees in both Houses of Parliament, it is the view that underlay the amendment of my noble friend Lord Wills calling for a commission of inquiry, and it is the basis upon which my noble friend Lord Campbell-Savours has put his amendment now. Like everything on Report, it is a refined version that says, "Let us have it, but only if there is a desire for change". The fact that when Lady Newton of Braintree proposes that the noble Lord, Lord Newton of Braintree, buys a new dressing gown, he says yes, does not indicate that everyone, when confronted with change, says yes. Indeed, most people, when confronted with change on important political issues, tend to say no, so I will be interested to hear the view of the noble and learned Lord, Lord Wallace of Tankerness, on this issue, and the answer to the proposition that if the public want change, we should examine what the right change is before we give them only one choice.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench 5:30, 7 February 2011

Before the Minister answers that question, I must confess to being slightly baffled by where we are moving to. The Long Title of the Bill is that it is a Bill to:

"Make provision for a referendum on the voting system for parliamentary elections and to provide for parliamentary elections to be held under the alternative vote system".

The amendment that the noble Lord, Lord Campbell-Savours, is putting forward drops those words about the alternative vote system. The question becomes, "Should the first past the post system be changed and a different system of elected MPs be introduced in the next general election?" We know from the many speeches that have been made that there are a mass of alternatives and variants. The population-the voters-are potentially voting for a whole series of different amendments. You have not then got the answer that you were meant to get. The Long Title goes on to say that it will provide for voting,

"under the alternative vote system if a majority of those voting in the referendum are in favour of that".

They may be in favour of three or four different things. There is no single system for which they are voting. I find that a puzzling result and some thought needs to be given to it.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

The noble Lord, Lord Campbell-Savours, has, as the noble Lord, Lord Neill of Bladen, has indicated, proposed an amendment which would take out the option of the alternative vote in a referendum and ask whether the system should be changed and a different system of electing MPs be introduced at the next general election. As the noble Lord said, a variety of different systems have been suggested.

I do not believe for a moment that this would lead to any clear outcome, even if this was the question that was asked. The public might reasonably be confused. What other system of elected MPs would be introduced? What kind of campaign would take place where perhaps a variety of different systems were being canvassed? How would the campaigns in this referendum marshal their arguments and present their case? You would get differing factions, with those who might want a single transferable vote, those who want the supplementary system and those who want the alternative vote. It would result in more questions being asked than answers being provided.

However, I can see that the main point that the noble Lord is trying to make is that there should be further thought on the system, if any, that should replace first past the post. I always find it touching when noble Lords opposite make speeches which appear to have the best interests of the Liberal Democrats at heart. It is very moving but, frankly, those who think that somehow the outcome of the negotiations might have been different were not actually there. Even to mention the possibility of the 1922 Committee being invited to endorse the single transferable vote only needs to be stated to show how unlikely an event that would have been.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

Is it not a grievance to the Conservative Party that it can win more votes across the country, particularly in England, and still not be able to form a Government? Is the solution to its problem not then a system of proportional representation?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

The noble Lord invited me to look to the best interests of the Liberal Democrats. I would not tread anywhere on looking at what might be considered the best interests of the Conservative Party.

If the referendum was on the question proposed by the noble Lord, Lord Campbell-Savours, and if the answer was yes, what would then be the follow-on from that? Would the Government propose a system that would have to be debated by Parliament? My noble friend Lord Newton of Braintree made a good point that you can ask the public if they want a change and if, they say yes, you then leave it to politicians to foist upon them what that change might be. Even if it was a question of, "Vote yes and we will set up a committee", that is not really an appealing slogan on which to have a referendum campaign. Voters could reasonably claim that they had been cut out of a significant decision.

In moving his amendment, the noble Lord, Lord Campbell-Savours, said two things: that Parliament would take the final decision and that, inevitably, the next general election in 2015 would be fought on a different system from first past the post. Yet nowhere can Parliament be mandated to pass a Bill to make it an Act. We all know that a change in the electoral system would require primary legislation for it to come into law. If the voters have voted yes to wanting a change, what guarantee will there be that both Houses of Parliament would then manage to coalesce around what that particular change might be? It could be the worst of all worlds, with people voting for change and then finding that politicians have frustrated the change that they seek.

As has been made clear on a number of occasions, the attraction of the approach taken in this Bill is its clarity. We set out how the alternative vote system would work, as comprehensively done in Clause 9 and Schedule 10. Any questions about how optional preferential AV works can be resolved by looking at the Bill. That would not be the case with the noble Lord's amendment. I urge him to withdraw his amendment and, if he seeks to push it to a vote, I invite noble Lords to vote it down.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

Perhaps I can apologise for the somewhat staccato nature of presenting my amendment because I was caught short and could not work out finally which notes I had to refer to.

Let me answer the critically important question raised by the noble Lord, Lord Newton of Braintree. The facts are that no one, anywhere, has done any homework on how AV works. Maybe the Liberal Democrats have done some, to work out to what extent it will benefit them. In the event that the amendments had fallen in a different order today, I would have been able to produce earlier during our proceedings the evidence that I will produce under the next amendment-that is, figures which show that a complete miscalculation has been made by the Conservative element in the coalition as to how AV operates, drawing on the Dunleavy material from 1997. A lot of people have not done their homework and are presuming, because there is an item on the agenda that says "AV is presentable and works", that somehow that is enough authority for Parliament to carry the legislation in the form that it has. No work has been done and, until it has been, it is highly irresponsible for any Government to present to the British electorate a question in the form in which this is currently being submitted. No work has been done.

All I was doing in my amendment was drawing attention to the fact that no work has been done and that all the electorate have to say is, "We do not want first past the post any more". Then, Parliament could, by whatever means, with the aid of Government, establish inquiries to examine and evaluate all the systems and then come forward with recommendations. Let me be absolutely frank: once you have got rid of first past the post, due to the complexities of alternative electoral systems, it needs Parliament to decide on what system is selected. You cannot leave that very complicated question to the public. A complicated series of options-a whole of spectrum of systems-has to be placed in the event that you widen that offer to the electorate.

I stand by my amendment. Unfortunately, for whatever reason and the time factor, I will not have the opportunity of voting upon it today. After the next amendment, when I produce evidence of what happened in 1997, some Members of the Committee might well think, "I wonder what we are doing". If I might put it bluntly, they know not what they doeth. I beg leave to withdraw my amendment.

Amendment 1A withdrawn.

Amendment 2

Moved by Lord Campbell-Savours

2: Clause 1, page 1, line 10, leave out ""alternative" and insert ""supplementary"

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

I had hoped to speak at some length on this amendment on Report but understand that agreements have been made on Part 1 so I do not intend to delay the debate. Perhaps I can start by explaining why I have been pushing SV during the course of this legislation.

The supplementary vote is a variant on the alternative vote. It is one of the three systems which we have discussed at length in Committee. We have the Australian system, the Queensland system, and the supplementary vote system. It is not my favourite system for electoral reform-my favourite is a PR list system or an AMS system-but is a compromise. If you have two options on the agenda-alternative vote, Queensland, or alternative vote, supplementary vote-then I will always pick the supplementary vote. The reason I want to present the preamble to my case today on that basis is that I intend to criticise some aspects of SV along with AV. I am criticising a family of systems which generally come under the alternative vote.

To get the preliminaries out of the way, the supplementary vote is already used in 13 cities in the United Kingdom. It is used in the mayoral elections, and it was used in the London election to elect Boris Johnson. Many people think when they walk into the polling booth in London and vote for a mayor for London they are voting under an AV system. They are not. They are voting under a particular system within the family of AV systems, the supplementary vote, which is not what is on offer in this legislation.

The key question we have to ask about those 13 mayoral elections is whether the supplementary vote changes election results as against a first past the post system. It has done on four occasions, where the second-placed candidate on the second count has won the seat and where the first-placed candidate on the first count has, therefore, lost. In that sense, therefore, it can influence election results.

Furthermore, the supplementary vote was the recommendation of the Plant commission, which was established by the Labour Party in 1990 to evaluate different electoral systems. In Committee I read on to the record a part of the Plant commission's report and its recommendations.

The next debate that took place on the supplementary vote took place in 1998, when London mayoral elections were established in the system in legislation. Nick Raynsford, who was then the Minister, in conjunction with many outside bodies which lobbied him on behalf of the various systems, decided that the supplementary vote was the appropriate system. It is a used and tried system within the United Kingdom.

I now want to move the debate from pushing my system within the family of AV to another argument. Within the family of AV systems there is a problem which has never been debated in Parliament. To know what the problem is you have to look at a paper produced immediately after the landslide victory for the Labour Party in the 1997 election. It was called Remodelling the 1997 General Election: How Britain Would Have Voted Under Alternative Electoral Systems by Professor Patrick Dunleavy, Helen Margetts, Brendan O'Duffy and Stuart Weir. This is the only piece of good, clear evidence of what happens when you introduce alternative vote systems within the United Kingdom. Again, however, it is an extrapolation.

I could spend an hour quoting from the paper but I have taken out the salient paragraphs which should influence opinion. The writers simulated what would happen under AV under the landslide victory for Labour in 1997. They said:

"Our simulation approach developed over the two 1990s elections seeks to get as close as possible to how a new system might work via several innovations ... asking survey respondents to complete alternative ballots for the rival systems, immediately after they have voted in a general election".

In other words, after they voted in a general election they then asked them questions. The paper continued:

"In 1997 ICM Research interviewed a sample of nearly 8,447 people across 18 regions of Britain for the project, achieving a response rate of 82 per cent".

That is a very substantial sample, asking questions about how people would have voted under AV in 1997. They combined,

"regional responses for each type of voter and information from the general election on first preferences to extrapolate how second and subsequent preferences would be structured under the alternative voting systems at the level of local constituencies".

The authors then took Queensland AV and SV and found:

"To simulate an SV outcome" -

Remember we are talking about a sample of 8,500-

"we looked at all 301 constituencies where the winning MP in 1997 had only plurality support, identifying the top two candidates who would go to the second stage of the count, and also those candidates who would be eliminated ... The outcomes were dramatic".

Tory MPs should read this stuff because it then says:

"Across the country as a whole the Conservatives would have lost"- a further-

"55 seats, cutting their representation in Parliament to just 110 MPs".

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

My noble friend might ask, "What's wrong?", and there may well be people in the Labour Party all over the country repeating, "Yes, what's wrong?". I will tell you what is wrong: we know it is wrong. We know if we were being reasonable, we could never have cut back the Conservative Party to 110 seats in 1997. It would have been a ludicrous result, producing, as the paper states,

"less than 19 per cent of seats in Britain compared with their vote share of 31.4 per cent".

So here we have it. This system, we are told, is about fair votes; it is about somehow matching the number of seats with the votes cast in a general election, turning out in 1997, in the Labour landslide victory, 19 per cent of seats in Britain compared with their vote share of 31.4 per cent. That is a huge difference, and it is wrong that we should be introducing a system that potentially can lead to results on that scale.

"Such an outcome would be the most severe under-representation of the Tories in British history. The biggest reduction in Conservative seats would occur in the south west".

It might well be there would be those who would argue, "Well, they are only Conservative seats that are being lost", but it works both ways because AV exaggerates results and swings. You can get huge swings against a party which could just as well be the Labour Party and we, too, could be reduced to a rump. The Conservatives have simply failed to understand the dangers inherent in the system they want to introduce.

The paper goes on to point out:

"Under SV the Liberal Democrats would have won another 38 seats on top of their existing 46".

We now know why they want to introduce the system. It clearly distorts. Then what does it say?

"Under SV Labour would also have gained 17 more seats, buoyed up by extra transfers from supports of eliminated Liberal Democrats, further boosting their already disproportionate majority, giving them over 68 per cent of British seats in Parliament on the basis of 44 per cent of the vote".

This is this super system that we are introducing. This is the system we are told is fair votes. On the basis of the 1997 general election, the landslide victory for Labour, we would have won over 440 seats. What a ludicrous system. What a ludicrous proposition has been put before Parliament.

I go back to the amendment and the question posed by the noble Lord, Lord Newton of Braintree. People have not done their homework, and something needs to be done about that. We need a referendum question that invites people to say no to first past the post. Then let us get the inquiries established because the homework has not been done.

On the classic Queensland AV, the authors go on to say,

"We assessed AV's impacts by examining whether the tiny differences in second preferences from the SV ballot would have changed any of the SV simulation outcomes in any constituency but we could not identify any such cases".

The proposition before the House is that we do something we should not be doing. The Tory Government should stop this, and stop it now. We are on Report. They should go away and come back at Third Reading having fully considered the implications of the Dunleavy work from 1997. I know that the Minister will get up and say, "It doesn't matter. It's all gone through. It was approved by the House of Commons", but they did not know what they were doing. They did not understand the implications of this system. We are dealing now with a major change in the constitutional arrangements of the United Kingdom. If we produce exaggerated results that would have given Labour 444 in 1997 and a massive majority much larger than we actually had, we are making a major error, and I appeal to the Government to think again before it is too late.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

That was a very powerful speech by my noble friend Lord Campbell-Savours. He certainly does his homework very effectively. Like him, I wish that some Members of Parliament had done it. In the past few weeks, I have listened to a number of Conservative Members of Parliament and to some Labour Members of Parliament, and I am not sure that they know exactly what they voted for and its implications not just in terms of the voting system, as my noble friend Lord Campbell-Savours said, but of the reduction in the number of Members from 650 to 600. That is something we will come to later. The purpose of a revising House is to try to draw attention to this, so I am really grateful to my noble friend Lord Campbell-Savours, as I am sure the House is.

I want to raise one point. What can we do to stop this misapprehension that everyone elected under this system of AV has achieved the support of 50 per cent of the electorate? We discussed this in a previous debate, and I think it was my noble friend Lord Rooker, in his usual eloquent way, who pointed out the various systems. As I understand it-I am open to be corrected if I am wrong because I do not want to go on if I am-if the system used is that everyone is required to use all their votes, so that if there are 10 candidates, they vote from one to 10, that does apply. However, as I understand it, in the system that has been proposed and that we are being asked to approve, that is not required. You can vote one, two or one, two, three or one, two, three, four and so on-

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

Or just one, which my noble friend Lord Grocott and I would prefer. Yet again last week, in spite of the fact that this House has said it on a number of occasions and other people have said it, the Liberal Democrats-and I absolve the Tories of this-were saying, and the Guardian was repeating, that everyone elected under the system being proposed will have the support of 50 per cent of their constituents. That is manifestly untrue, and it is about time that the Liberal Democrats stopped spreading these lies.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

My Lords, the noble Lord, Lord Campbell-Savours, has moved an amendment which would change the referendum question to ask voters whether the supplementary vote system should be used instead of first past the post rather than the alternative vote system. It will come as no surprise, because it is the content of the Bill, that the Government are committed to providing for a referendum to be held on whether the alternative vote system should be introduced for elections for the other place. We had these debates on a number of occasions in Committee.

I know the noble Lord, Lord Campbell-Savours, has a degree of authorship of the supplementary system that is used in the London mayoral election. We have heard on a number of occasions his concern about the alternative vote provisions in the Bill. It is always very invidious to say how people might hypothetically have voted when that was not the system that was used. The comments made by the noble Lord and the noble Lord, Lord Foulkes, were quite legitimate points to be made in the referendum campaign, when the parties and the different participants will take their own view about the merits and demerits of the alternative vote system. I can confirm that under the provisions in the Bill, which the noble Lord, Lord Foulkes, accurately described, voters may express a preference for as few or as many candidates as they wish or, indeed, for one. As the noble Lord rightly said, that could mathematically mean that not all Members elected to the other place had secured 50 per cent. As we debated last week when we were considering the material now on the website of the Electoral Commission for discussion, which will be sent out to stimulate interest and to explain the proposition before the voters on referendum day, that point is made in the material that it will be putting out.

Clearly the noble Lord's amendment to adopt the supplement vote system will limit voters' choice in expressing preferences for candidates standing at the election as they would be able to express a preference for one or two candidates only. The Government are not persuaded that the AV provisions in the Bill should limit the number of preferences that any voter may express at an election. We consider that not limiting the number of preferences that a voter may express under the alternative vote will enable MPs to be elected with a broader level of support, although I make the qualification that as you can cut off and do not need to vote for everyone, it will not necessarily mean that an MP will achieve 50 per cent.

As my noble friend Lord Strathclyde explained in Committee, the Government believe that the optional preferential form of the alternative vote is the right form of AV to be put before the people. For elections to the House of Commons, voters will be able to express preferences and should be able to express as many or as few preferences as they chose. They should not have their ability to express preferences constrained in the way proposed in the noble Lord's amendment. The optional preference form of AV avoids voters being forced to vote positively for political parties that might be distasteful to them, such as those on the extremes of politics. There is no indication in the amendment about how in detail the supplementary vote system would work. The attraction of the Bill as it stands is that for all the arguments that might take place about how AV works, the Bill sets out that process in Clause 9 and Schedule 10. Questions about AV works can be resolved by looking at the Bill. That would not be the case with the amendment, which lacks clarity. I therefore urge the noble Lord to withdraw it.

Photo of Lord Bach Lord Bach Shadow Spokesperson (Justice)

I understand that the supplementary vote system is used in mayoral elections. Indeed, on 5 May, there will be a mayoral election in what I describe as God's own city, Leicester. It is the first mayoral election that will presumably be under the supplementary vote system. If the Government get their way on this, it will be slightly ironic that at the next general election the public will also be asked to vote on whether an alternative vote system in the manner set out in the Bill should be adopted for the United Kingdom for future general elections. Do the Government intend to do anything about the way SV is used for mayoral elections, or are they content with it for that but not for AV generally?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), Lords Spokesperson (Wales Office), The Advocate-General for Scotland, Lords Spokesperson (Scotland Office)

I think the noble Lord, Lord Campbell-Savours, helped to devise the system for mayoral elections that we have inherited. There are no proposals to change it. We are talking about elections to the other place. I have made it very clear that we see the merit of a system where preferences can be expressed as far or as little as individual voters wish. For the purposes of electing the House of Commons, we prefer it to the supplementary vote which by its very nature limits the extent of the preferences that the individual voter can indicate. On that basis, I ask the noble Lord to withdraw his amendment.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

My Lords, the noble and learned Lord, Lord Wallace of Tankerness, said that the Government believe that it is the best system. I dispute that. If he looks at his notes, he will see that that is what he read: the Government believe that it is the best system. Perhaps he would like to check his notes, but I wrote his words down. I will stand corrected if I misunderstood what he said.

All I am saying is that the Government may believe it, but Conservative Back-Benchers in the House of Commons have never been confronted with a real discussion. People do not know how this system works. I challenge any Conservative Back-Bencher here today to tell me, to assure the House, that Conservative MPs in the other place know how this system works. When these matters were debated in the other place, there were about five Conservatives in the Chamber. Everybody was whipped in to vote as part of a contractual agreement within the coalition. There has been no discussion. I cannot understand why Ministers are not listening to their own people. Why not carry out a consultation even in these last days of dealing with the Bill. Why do they not carry out a consultation on their own Back-Benches? They may even, if I might modestly suggest, send them a portion of the contribution that I have made to the debate, drawing on the statistics that have been produced following the sample poll of 8,500 people in 1998. Maybe it is then that they will realise what they are doing. Ah, finally we have tempted one out of the box.

Photo of Lord Tyler Lord Tyler Liberal Democrat 6:00, 7 February 2011

If the supplementary vote is so persuasive and so self-evidently the best system, how was it that the noble Lord was unable to persuade his own party over many months that it was the best system? On several occasions, his own party produced proposals for the alternative vote, in the Constitutional Reform and Governance Bill, at the general election and then following the general election. If the noble Lord wants to be persuasive, why does he not start with his own colleagues?

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

I can give the noble Lord a very honest answer. It is because I, like many people in the Labour Party, woke up one day-I think that it was in December 2008-and read in the Guardian newspaper that we were going to insert an amendment into the Bill to introduce the alternative vote. We had no notice whatever that that was the intention of the Labour Government. That is the answer to the noble Lord's question. We did not know anything, and if we had known we would have set out to block it-as happened in 1998 when Nick Raynsford was faced with having to take the decision on whether we picked SV or AV.

I shall deal with one point that the Minister raised, when he talked about giving everyone the opportunity to use all their additional preferences. In the work by Dunleavy with the 8,500 samples, this was the conclusion that he drew on exactly that question-that AV would have produced the same results as SV in 1997, so far as could be determined. That conclusion raises an interesting question about whether the multiple ranking of candidates under AV is really a worthwhile feature, compared with the simpler and perhaps easier-to-explain ballot paper and counting methods used in SV. The noble Lord, Lord Tyler, shakes his head, but that is based on a sample of 8,500 people in 1998. Where is the evidence to the contrary? There is none, because the homework has not been done.

I have made my case. If I am still alive in 10 years' time, and if this referendum question comes back in the affirmative on the AV system, I will have the pleasure of saying, "I said that it wouldn't work and I was able to forecast that freak results would completely discredit the system and lead to a further review of it". I beg leave to withdraw the amendment.

Amendment 2 withdrawn

Amendment 2A not moved.

Amendment 3

Moved by Lord Howarth of Newport

3: Clause 2, page 2, line 9, after "constituency," insert-

"( ) the persons who, on the date of the referendum, have attained the age of 16 and who would be entitled to vote as electors at the subsequent parliamentary election,"

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, my noble friend Lady Hayter of Kentish Town is unable to be in the Chamber this afternoon. She expresses her regret and asks if I might move Amendment 3, which is down in her name. I have another amendment in the group, Amendment 3A, which is intended to provide words to the same effect as my noble friend's amendment, although my noble friend's amendment does so more felicitously than mine.

Noble Lords will recall the arguments that my noble friend Lady Hayter put forward in Committee and the eloquence with which she did so, urging the House that those,

"who ... have attained the age of 16 and who would be entitled to vote as electors at the subsequent parliamentary election", should have the right to vote in the referendum that will determine the electoral system under which the subsequent parliamentary election will be fought. For my part, I do not favour lowering the voting age to 16 for general elections. However, I submit to the House that the situation at this referendum will be entirely exceptional. I imagine and rather hope that it will be the only such referendum for many years, although one must acknowledge the possibility that if the choice of electoral options is not widened people may find themselves deeply dissatisfied, as my noble friend Lord Campbell-Savours has warned. So it is possible that there would be a public move to hold a further referendum before so very long, but at least we would not expect another referendum this side of the general election.

The future constitution and electoral system under which candidates are returned as Members of Parliament is the constitution and the system that will belong to the new generation in this country. It would be appropriate that those who have attained the age of 16 by 5 May should be entitled to participate in making this particular decision so that when they come to be able to exercise their vote for the first time at a general election, presumably in May 2015, they will have shaped the decision that determines how the election will be fought and what the voting system will be on that occasion. It is a simple matter of fairness. It would do something useful in engaging the interests and involvement of a new generation of young people, and I hope very much that the proposition will find favour with the House. I beg to move.

Photo of Lord Dubs Lord Dubs Labour

My Lords, I shall speak to the amendment in my name, Amendment 4, which is on a somewhat different issue, although it has been put in the same group-so, for the sake of speed, it is probably better that we discuss them as part of the same thing. I would not normally want to raise an issue like this, but there are two reasons why I feel it appropriate to do so on this Bill. First, we are being asked to agree to a referendum-and we as Members of this House will be allowed to vote in that referendum-that will determine how the voters of this country choose their MPs. Yet we in this House are not allowed to vote for MPs. This is a total anomaly. I do not want the Government to say, "That's fine", that they are persuaded by my argument, and then take away our right to vote in the referendum. But it is an anomaly in terms of logic; in the way that the provision is drafted, we have reached this somewhat illogical position.

My second reason for raising this matter is that I had the privilege of serving on the Joint Committee on Human Rights. The chair of the committee wrote about the issue of Members of this House voting and received a reply from the Deputy Prime Minister. I shall quote three sentences from the letter, because they are relevant to this Bill and this amendment. I quote from the middle of the letter from the Deputy Prime Minister to the chair of the Human Rights Joint Committee on 25 January. He said:

"The Lords sit in their own right. The Commons are elected by the remainder of the estate of commoners to represent them in Parliament. There was therefore no case for the Lords to vote to elect representatives, since they were able to sit in Parliament anyway".

He goes on to say:

"The fact that members of the House of Lords have a voice in Parliament makes it legitimate to deprive them of a right to have their voice also heard through their elected representative in the Commons".

That is also not a very logical argument, I say with respect to the Deputy Prime Minister. The issue about voting in elections is about choosing a Government, not about having a voice here. Of course, we have that after the election, but this is about deciding and helping to influence who will vote. I appreciate that if we did have the vote, the turnout of Lords voting in elections would be pretty well 100 per cent, because I know that we would jolly well rush off and vote. But that is not the key point in the argument. It is rather anomalous, when many of us here canvass hard for our parties in elections, that we have to admit to our fellow canvassers that we do not have a vote at all-"I'm just doing it for you lot". That is how it works. It is an anomaly.

I do not think that the Government will bow to this argument now but I hope that they will accept that the Bill is illogical in this respect, and say that it is something that we should be able to consider at an early stage in order to put right this anomaly. If the House of Commons decides to give prisoners the vote-I hope that they will, although many people do not agree-it will be even more anomalous for us to be left out of the equation.

Photo of Lord Strathclyde Lord Strathclyde Leader of the House of Lords and Chancellor of the Duchy of Lancaster

I am grateful to both noble Lords who have spoken, and I wholly understand why the noble Baroness could not be here to move her amendment. It will be no surprise to the noble Lord, Lord Howarth, that the Government have no current plans to lower the voting age. I recognise that there are different views on the question of whether the voting age in this country should be lowered to 16, but if we are to have that debate, it needs to be had in relation to elections more generally, and the passage of the Bill does not provide the right platform. It was ingenious of the noble Lord to say that, because the referendum is of constitutional interest, the voting age should therefore be lowered on this one occasion, but I am afraid that it cut no ice with me.

We do not think that these amendments would be practically sensible in the context of this referendum. No doubt, when the dust has settled on the Bill, there will be opportunities seriously to debate longer-term issues on voting age. Although the noble Lord has had a good go on the Bill, we do not believe that this is the right place for such a provision. The same goes for the noble Lord, Lord Dubs. He very carefully avoided the trap of saying that if we were to be logical, we should not give Peers the right to vote on the referendum. If we had done that, of course, he would have been the first to say that we should; and I think it is fair enough that we should.

The noble Lord, Lord Dubs, may not have realised, and I do not think that it was his intention, but the way his amendment is drafted would in effect make it impossible to run the referendum properly. The amendment leaves the date for the referendum intact, but because of the way it is written at the moment, no one would be able to vote in the referendum. The amendment's intention is that Peers cannot vote in the referendum until the restriction on their voting in parliamentary elections is removed, but, taken on its true legal meaning, the amendment would effectively mean that we would have to postpone the referendum entirely until such a time as Peers are no longer disqualified from voting in a Westminster parliamentary election.

These two amendments are grouped because we believe that it is right that we should not muddy the water on the Bill by dealing with these issues differently from the way that we have done. The House knows that the Deputy Prime Minister hopes to come forward soon with proposals on the future of this House and that he is chairing a committee which comprises Members from all three major political parties. I am sure that in the course of debate on that subject we will, over time, reach greater clarity on the subject of Peers voting-if they are still to be called Peers-in general elections and in other elections as they come up. I hope that, on that basis, noble Lords will feel able not to press their amendments.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

The Leader of the House is a hard man to cut any ice with, as he has shown consistently throughout proceedings on the Bill. He has stated rather than made his case that eligibility to vote in the referendum should be determined by the same principles as eligibility to vote in a general election. However, faced with his adamantine opposition, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendments 3A and 4 not moved.

Amendment 5

Moved by Lord Knight of Weymouth

5: Clause 4, page 2, line 32, leave out subsection (1)

Photo of Lord Knight of Weymouth Lord Knight of Weymouth Shadow Spokesperson (Work and Pensions) 6:15, 7 February 2011

My Lords, Amendment 5, in my name and that of my noble friend Lord Boateng, seeks to remove subsection (1) from Clause 4 and returns us to our debate in Committee on whether it is appropriate to combine the referendum with other voting: in this case, local authority elections in England, a local referendum in England or a mayoral election in England. I confess that I am currently not sure how I would choose to vote in the referendum. In many ways, I would like more time to consider the issues and balance up my feeling that the current system is probably not that fair with my unwillingness to get that worked up about it. Probably, therefore, I should just let the status quo ride, given that I am not that fussed about the change, but I need to think about that.

That is one basic, straightforward argument for not having this on 5 May, but we have had that debate already. There are specific problems with combining the poll with other elections that come down to two principal things-confusion in the campaign and confusion at the ballot box. Taking the first, I put a scenario to your Lordships, many of whom are familiar with political campaigning and the process on the ground-for many of us, that is partly how we got here. We are dependent these days on a large number of volunteers delivering leaflets, knocking on doors, phoning people up, tweeting and doing whatever else we do in modern campaigning and being, by necessity, partisan about how they do it when they are fighting things like local government elections here in England.

All this activity is geared towards polling day, when electors are to be turned out in one's cause behind the candidate of one's choice. I am concerned as to how, if there is a referendum on the same day as all that activity, political activists on the ground can simultaneously campaign on one or the other side of a very important question about how MPs get into the House of Commons and for their political party. They will be simultaneously what we might describe as comrades and opponents. It is very difficult to understand how that will work in practice.

I know that he is not in his place, but the noble and learned Lord, Lord Wallace of Tankerness, told us that he does not pay too much attention to Members on this side of your Lordships' House trying to be helpful to the Liberal Democrats. I do not believe that this combination is at all in the interests of the Liberal Democrats. Among political activists, those volunteers on the ground who one would expect by and large to do a lot of the work in a referendum campaign, I do not believe there will be so many in the Conservative ranks or massive numbers in the Labour ranks-I do not believe that the majority of Labour activists will be campaigning for a yes vote. That will leave the Liberal Democrat activist base having to carry a substantial part of the workload in the yes camp in an AV referendum, and it will simultaneously have to defend actions that I will not go into but which have proved slightly controversial in their association with this coalition Government. I do not think, therefore, that this gives this question the chance to be properly debated and put to the country, because I do not think we will have a sufficiently resourced and balanced set of campaigns on both sides. Thinking through the practical implications, noble Lords, with their understanding of how elections and referendum campaigns work, will see that this is not very practical.

My noble friend Lord Bach of Lutterworth raised the Leicester mayoral election on 5 May. The same issues will arise there-this is not just about trying to combine local council elections on the same day as the referendum. Mayoral candidates might be asked to take a position on the referendum, and their political parties feel that it is appropriate to put on leaflets what their position is on the referendum question. We then get into complicated questions as to how election expenses are accounted for on those leaflets. Should a mayoral candidate be endorsed, we could continue to go on and on about the consequentials, and that is not the order of the day.

There is a fundamental danger that the referendum will be ignored by electors in terms of thinking about it, but they will participate in the end because they will turn out to the poll, the paper will be given to them and they will feel that it is their duty to vote. They will not have had the opportunity to give the proper consideration that this question deserves. Like me, at the moment, they are probably pretty much undecided, although they might have a bit of a gut feeling about which way they will go, and they need more time to think about it.

The second question is confusion for electors in the ballot box itself. Most of us are not used to referenda. I voted in the referendum-no, I did not; I was not old enough to vote in the referendum for membership of the European Union, and I do not think that a referendum question has been put to me since in any of the areas where I have lived, so I have never taken part in a referendum and I am not used to that scenario. It is probably straightforward enough to work out how the mechanism of the ballot paper works, but I am familiar with the scenario of being given quite a few ballot papers on polling day.

I live in a wonderful area of Dorset where we have both a borough council and a county council, and I have lived in areas where I have served on a town council. On 5 May, in parts of the constituency in Dorset that I used to represent-Purbeck-there will be town council elections and district council elections. I do not think that there will be any local referendum questions, but I would not put it beyond the wit of the people of Swanage to want to have a referendum on whether or not they want a free school in the town, because there are some people campaigning for that, so they might already have been given a third ballot paper. To add a fourth starts to create logistical challenges for the people who are administering the elections. How many ballot boxes do you need? Should you separate them off at the point of the votes being cast? In that case, you will need four in each of the polling stations. Should you go for one ballot box and then separate them all out, with all the potential for error that goes with that? Doing this creates all sorts of logistical problems for running an election and, most importantly, it has the potential to confuse electors with all these different pieces of paper that they will have to express their opinion with.

Clearly, this referendum should go ahead. It is very important that the question should be properly debated, with a well informed campaign. I do not believe that we can have that well informed campaign by 5 May. Thanks to the excellent work of my noble friend Lord Rooker, we now have the possibility of being able to have it between now and 31 October, with a whole set of amendments voted on by this House to make that feasible. I encourage the House to say that as a matter of principle it is too confusing to combine the polls. I beg to move.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, I agree with my noble friend Lord Knight of Weymouth. The issue at the referendum is simply too important for it to be right to confuse it with all the other campaigning issues that will be abroad in the land on 5 May. Campaigning armies stir up a great deal of dust, and we should not cloud this issue. It is a most important moment in the national life when people have the opportunity to decide whether they wish to change the electoral system for returning Members of Parliament. They should be allowed to consider that question in isolation, calmly and at reasonable length.

As we have noted again and again, there has simply been too little earlier and wider debate as a prelude to holding this referendum. There was no Green Paper or White Paper and no adequate scrutiny in the other place, while Select Committees of both Houses were obliged to produce their reports in some considerable haste. The quality of journalistic discussion of the issues of the referendum remains poor; as my noble friend Lord Foulkes observed just now, it is still being trotted out as a commonplace that the virtue of the optional preference system of the alternative vote will be that at any rate every Member of Parliament will be returned with no less than 50 per cent of the vote. That is not true, but journalists keep on recycling this inaccurate account of what the optional preference system of the alternative vote will provide, so we and the Electoral Commission will need longer to inform the people about what is at issue. If the people are distracted and confused by a whole lot of busy, energetic vocal contention about a series of other electoral issues, I do not think that they will be able to reflect with the care that they need and gain the clarity of view that they ought to have when they take this immensely important decision.

One of the Government's justifications for holding the referendum on the same day as other elections on 5 May is that it will improve turnout. I question that. There will of course be plenty of voters willy-nilly in the polling booths-they may or may not wish to use all the different bits of paper that are handed to them as they go towards the booths-but I am not sure that, not having had the opportunity to consider with the care and thoroughness that responsible citizens would wish, they will necessarily be disposed to vote in the referendum as well as in the other elections. In all events, we will get a better quality of turnout and a more thoughtful one if we have the referendum on a separate date.

It seems wrong in principle and particularly inappropriate that the case should be made that having a referendum on the same date as other polls will cause a higher turnout when in London, this capital city, there will be no local elections on that day. There will be differential turnout and there will be the most detrimental effect; if the proponents of the argument that it should be held on the same day in order to improve turnout are correct, it will follow that Londoners will have less of a voice in this crucial decision.

Additionally, there is the question of respect to the Scottish Parliament and the Welsh Assembly. The Scots have expressed themselves already in no uncertain terms; they consider that it was disrespectful to them that the coalition Government simply decided that they were going to impose a requirement to hold a referendum on the same day as the elections to the Scottish Parliament, and your Lordships' Select Committee on the Constitution was also censorious on that point. The Welsh, similarly, do not like it; they had already decided that the other referendum to be held in Wales in the early months of this year, on the question of whether there should be an extension of primary legislative powers to the Assembly, should be held separately in March so that it should not be confused and clouded by the other campaigns and the other voting on 5 May.

There will be problems at a practical level for returning officers and counters, and in determining what expenditure is to be attributable to which campaign. These are not negligible considerations either. Even at this stage, it would be the right thing for the House to recognise that it would be detrimental to all the campaigns-detrimental to the clarity of conduct of the referendum campaign, but equally so to the clarity of conduct of the local, Scottish parliamentary and Welsh Assembly election campaigns-if they were all to be cluttered and confused on the same day. It would be better to draw back, have a better quality of campaign over a more sensible timescale for the referendum and hold it on any of the dates that are now made possible in consequence of the amendment that the House made in Committee about the requirement regarding the date on which the referendum should be held.

Photo of Lord Touhig Lord Touhig Labour 6:30, 7 February 2011

My Lords, briefly, my Amendment 5B would leave out subsection (2) and prevent the AV referendum being held on the same day as the Welsh Assembly elections. As in other parts of the country, the people of Wales will face voter fatigue. On 3 March, as my noble friend Lord Howarth has mentioned, we have the referendum on more powers for the Welsh Assembly. That is very important; it could change the way in which the Assembly works in its relationship to the Government and Parliament and might have long-term implications for our constitution. On 5 May, we have the elections for the Welsh Assembly, and now the Government want to hold the AV referendum on that date as well.

It is with a heavy heart that I say to the Government that throughout this debate they have shown nothing but contempt for Wales and its people. Wales is to lose one-quarter of its parliamentary constituencies. Twenty per cent of the whole reduction in the number of parliamentary constituencies throughout Britain is expected to come from Wales. However, despite our debate on Wales, which some noble Lords said was the best debate we had in the House throughout this Bill, the Government were not prepared to move. I say to the noble Lords on the government Benches that Wales is not a colony run by governors-general. We are used, with the exception of the noble Lord, Lord Crickhowell, to Conservative Secretaries of State who do not represent Welsh seats sitting in London in government, but Wales is not a colony. We are part of the United Kingdom and a nation in our own right. We deserve to be treated better than this.

The Government have so far been unwilling to move. If they are not prepared to move on this matter, households in Wales will, over the next few months, face a deluge of material through their letter boxes-material saying yea or nay to more powers for the Welsh Assembly, material for the Assembly elections from all the parties and material saying yea or nay to AV. Our National Assembly is still young and still growing. It still has a long way to go to win the hearts and minds of the people of Wales and establish itself in the way that its Members would wish. However, its role may change even further after the referendum on 3 March. We should give the Welsh Assembly election the dignity and status it deserves. It should be held alone, without any other election that day.

What really annoys me about this whole issue is that the Conservatives do not support AV; the Prime Minister says that he will campaign against it. The Liberal Democrats do not support AV; their leader has described it as a "miserable little compromise". Yet such is the Government's opinion of Wales that they are prepared to treat its people in this most disrespectful manner and push through holding a referendum on AV on the same day as the election for the Welsh Assembly. I say to the noble Lords on the other side only that if they persist in this way, the Conservatives and the Liberal Democrats will pay a heavy price come the next election-and they will certainly deserve to.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, that is almost a reason not to support the amendment to which my noble friend Lord Touhig has spoken. I will say just a few words in support of Amendment 5D in my name and that of my noble friend Lord McAvoy. As my noble friend Lord Howarth said, the Scottish Parliament, by a substantial vote of 90 to 30, called on this Parliament and the Government not to hold the referendum on the same day as the elections to the Scottish Parliament. The Prime Minister Mr Cameron, when he was elected, spoke about an agenda of respect-of mutual respect-for the Scottish Parliament. However, one of the first things that the Government did was to ignore the views of the elected Scottish Parliament-the people who know best because they are there on the ground and will campaign in the election. That is one strong argument in favour of the amendment.

The second is that there will be two confusing campaigns. In a previous debate, when I indicated my total support for the sane and sensible remarks of the noble Lord, Lord Forsyth, even Members of this House drew a sharp intake of breath at that unusual alliance. That alliance will be there again-campaigning in Scotland against AV, which the noble Lord, Lord Forsyth, and I are both against. However, we will be campaigning on opposite sides in the Scottish parliamentary election, and that will cause confusion. I use the noble Lord, Lord Forsyth, as just one example. There will be many such people. Indeed, I previously said that the noble Lord, Lord Strathclyde-whom I remember saying he was against AV early in the debate-and I could be tramping the streets of Mauchline together on the same side in the referendum but on entirely different sides in the campaign for the Scottish Parliament. That will cause confusion. The posters will be confusing, as will the campaign with loudspeakers. I am not allowed to repeat arguments but, as I said previously, the two campaigns will cause confusion.

My last point is about the franchises. I have made the point before but will make it in a different form now because the Ministers have still not addressed it. There will be difficulty in dealing with two substantially different franchises when in Scotland, as my noble friends know, many Polish, German and French people will be entitled and able to vote in the Scottish Parliament election but not in the AV referendum. It will cause great confusion, which would not arise if the polls were not held on the same day. Respect for the views of the Scottish Parliament and the confusion caused by two campaigns and two franchises are very powerful arguments that should make the Government think again.

Photo of Lord Dubs Lord Dubs Labour

My Lords, my noble friend Lord Knight and others have indicated clearly why it is not appropriate to hold the referendum on the same day as these other elections. My amendment refers to Northern Ireland, and I briefly add a Northern Ireland dimension to further the arguments that have already been made. I remember, about 11 years ago, the referendum in Northern Ireland on the Good Friday agreement. It also took place in the Republic on the same day. The build-up to that referendum was enormous. Everyone in Northern Ireland knew what the issues were. A brochure on the Good Friday agreement had been put through their door. Friends of mine who lived there discussed at home how they would vote in the referendum. It was very clear. It was a single issue and one of crucial importance to the people of Northern Ireland.

I contrast that with what will happen this time. Very important elections for the Northern Ireland Assembly and for district councils are to take place in Northern Ireland. A great deal has happened since the last Assembly elections to the balance of power between the DUP and the Ulster Unionists and so on. These elections will be very important and rather different in tone, content and substance from a discussion on the voting system for general elections.

The political parties in Northern Ireland are also entirely different from those here. I am not sure where the Conservative Party and the Ulster Unionist Party will stand in the future. They were together at the previous general election; that agreement may or may not last into the future, but this is not the occasion to debate that bit of folly. The parties are different, so there is no carry-over from, say, Lib Dem policies to what will happen in the referendum.

As was mentioned earlier in a brief discussion between the noble Lord, Lord Alderdice, and the noble Lord, Lord Reid, the voting systems in Northern Ireland are different anyway. STV is used for both the Assembly elections and, as the noble Lord, Lord Alderdice, said, the district council elections. The starting point is very different, and that is what will be in people's minds-not the election process for general elections. The possibility of confusion will be enormous. The Northern Ireland argument is at least as strong as, if not stronger than, the arguments that have been put forward by my noble friends. It will be confusing and I do not think we should do it.

Photo of Baroness Liddell of Coatdyke Baroness Liddell of Coatdyke Labour

My Lords, I support the amendments of my noble friends, but I also ask a specific question of the Leader of the House. Over the weekend the Scottish media brought to my attention the speculation that the budget of the SNP minority-controlled Administration in Scotland could be defeated, and that that could lead to an early dissolution of the Scottish Parliament. Given that everything we have debated in Part 1 of the Bill is predicated on the Scottish Parliament elections taking place on the same day as the referendum, what is plan B if it transpires that the Scottish Parliament elections take place in March? There is speculation that it could be in March. As an Ayrshire man, the noble Lord, Lord Strathclyde, will recognise the expression,

"The best-laid schemes o' mice an' men

Gang aft agley".

Things frequently "gang aft agley". Will the noble Lord reflect upon this and give us some indication of what would happen?

The noble Lord deployed a very powerful argument that the reason for putting both on the one day was because of the £12 million cost of the referendum. It would seem that we might have a general election in Scotland in March and then a referendum on 1 May at a quite disproportionate additional cost. I would therefore be very interested in plan B.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

My Lords, I understand the current position to be as follows. The AV referendum can, but does not have to, take place on the same day as the other elections that we have been referring to in this group of amendments. As I understand it, Clause 4(8) deals with the position if they do not occur on the same day. The amendments on the local authority elections, local referendums, Northern Ireland Assembly elections, Welsh Assembly elections and Scottish Parliament elections would all, in effect, forbid those elections to take place on the same day as the alternative-vote system. That is the issue; we should not be allowed to combine. The Opposition support all the amendments that would prevent combination, in effect, for the arguments that we have already heard.

First, there is a swamping of the AV issue. The Constitution Committee of this House wrote a report that said that, where you combine elections with a referendum, the evidence from other experiences shows that there is a tendency that the elections to Assemblies that affect peoples' lives will swamp the question. This is a bad conclusion to reach because we all agree upon the importance of the question. Secondly, if you have so many elections in so many places, it puts pressure on the organisation-see what happened in the 2007 Scottish elections as a result of more than one occurring on the same day. Thirdly, there will be differential turnout-namely, some places may have higher turnouts than others because there are elections. It would be wrong for the result of something as important as this to be determined simply by the coincidence of elections of another sort being held. Fourthly, there is a lack of clarity. It becomes more difficult for the public when a person who is standing for election says one thing that people support and then opposes a particular proposition that the public might otherwise agree with. Fifthly, there is a lack of respect. Respect between the Parliaments is important. The decision was made to combine without there being any consultation whatever.

There appears to be only one argument in favour: the saving of approximately £12 million. This is a significant amount of money. It is worth ensuring that having a clear and simple vote on the question of whether there should be an alternative vote system is dealt with properly and with clarity. The Opposition support the whole range of amendments that would prevent combination.

Photo of Lord Strathclyde Lord Strathclyde Leader of the House of Lords and Chancellor of the Duchy of Lancaster 6:45, 7 February 2011

My Lords, noble Lords opposite have expressed a clear and consistent view about combining these elections on the same day. The noble Lord, Lord Howarth, used the word "confusing". The noble and learned Lord, Lord Falconer, used the word "swamping". The noble Lord, Lord Foulkes, also said that it was confusing and so on. There is this thought-this idea that I have picked up loud and clear-that it will be difficult and awkward for the electorate to take a view and for the various organisations to campaign effectively. I am not saying that noble Lords opposite do not have a point, but I think that we have dealt with them. Indeed, the Electoral Commission said recently:

"We have always recognised that there would be both advantages and disadvantages associated with holding elections and referendums on the same day ... On balance, we believe that it should be possible to deliver the different polls proposed for 5 May 2011 if the key practical risks to the successful conduct of the scheduled elections and a UK-wide referendum are properly managed".

We have worked with the Electoral Commission and others in government on the combination of provisions in this Bill to make sure that the combination rules are conducive to well run polls on 5 May.

There are good reasons to combine them all on the same day. It is significant that we will increase turnout. That is one of the many good reasons for holding a referendum on this date. The noble Lord, Lord Dubs, mentioned London. It is true that there will be no elections in London. However, in other parts of the country, there will be, which means that 84 per cent of the electorate of the United Kingdom will be going to the polls on 5 May. This strikes me as an important and significant reason to have them on that day.

Crucially, all the amendments seem to misunderstand the nature of combining polls. I know that some noble Lords would rather not have the referendum on 5 May. However, preventing it from being combined with other polls is not the way to express these concerns. The simple administrative process of combination allows polls that are happening on the same date to be taken together, polling cards and polling stations to be shared and so forth. The consequences of these amendments would be that the referendum and scheduled polls could take place on the same day but that they would not be combined administratively. Naturally, this would result in a waste of money, in logistical difficulties for electoral administrators and in inconvenience to voters.

What is the reason for combination? The first is money. It will save the taxpayer approximately £30 million, which is a significant amount of money when compared with the cost of holding the referendum on a day when no other polls are taking place. The savings will be made because the costs of particular relevance can be shared between different polls being held on the same day. For example, costs of providing polling stations, hiring premises and equipment, paying polling station staff, and the savings can and will be shared between the referendum and the other polls taking place on 5 May. I also advise that the referendum will be administered on the same boundaries as the elections that are scheduled to take place across the whole of the UK on 5 May. From an administrative and cost point of view, it therefore makes sense to run them as combined polls.

The noble Lord, Lord Touhig, specifically mentioned the situation in Wales, where, unusually, there will be a referendum and then elections. My understanding is that the coalition Government and the Welsh Assembly Government agree that it would not be to anyone's advantage to ask electors to vote in three polls-for the Welsh referendum, the AV referendum and the Welsh elections-in the space of a few months. The so-called respect agenda in Scotland is also an important question, but again I think it was right for the Government to make the announcement to Parliament. This showed a respect for Parliament rather than to the devolved Assemblies and Parliaments.

There will be the scope for confusion. However, I believe that those who are running the yes and no campaigns have ability and judgment. In fact, the noble and learned Lord is taking part in one of those campaigns. I am sure that he and his colleagues will be able to see their way through this and run a successful referendum combined with the other elections on 5 May.

Photo of Lord Knight of Weymouth Lord Knight of Weymouth Shadow Spokesperson (Work and Pensions)

My Lords, the Leader of the House has attempted to justify this combination and has tried to respond to some of the points made in the debate. However, his central argument hangs around money and convenience more than anything else. He said that the Electoral Commission considered that the situation we are discussing is just about possible provided all the risks are managed, but we needed to hear more about what those risks are and how they are to be managed. The noble Lord, Lord Howarth, referred to differential turnout, and the noble Lords, Lord Touhig and Lord Foulkes, discussed competing franchises, the problems with the respect agenda in Wales and Scotland and the acute confusion in Northern Ireland. However, I did not hear how those risks, and the ones that I raised, would be managed. Therefore, I am not minded to withdraw the amendment. I wish to test the opinion of the House.

Division on Amendment 5.

Contents 154; Not-Contents 232.

Amendment 5 disagreed.

Division number 2 Parliamentary Voting System and Constituencies Bill — Report (1st Day)

Aye: 152 Members of the House of Lords

No: 230 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Amendments 5A to 5E not moved.

Amendment 5F

Moved by Lord Foulkes of Cumnock

5F: Clause 4, page 2, line 40, at end insert-

", but the count for the Scottish parliamentary general election shall not be delayed as a consequence of the combination of polls."

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 7:07, 7 February 2011

My Lords, I move this revised amendment in substitution for the original Amendment 5F. I thank the Clerks in the Public Bill Office for helping me to revise the amendment and bring it into order. It appears before noble Lords rather late in the day, but that would not have happened if there had been the normal period between Committee and Report stage. I hope that the House will forgive me for moving this revised amendment. I am most grateful to the Clerks for their speedy revision on my behalf.

Last Monday, following a report in the Scotland on Sunday, I said that there was great concern throughout Scotland that-as the noble Lord, Lord Forsyth, said earlier, and as my noble friend Lady Liddell of Coatdyke has also said-if the count is not taken immediately after the close of polls in the Scottish parliamentary election, some of the excitement, and a speedy follow-up with the announcement of the result, could be lost as a result. As noble Lords who have participated directly in elections will appreciate, the public's interest in the election is important. It is an entirely separate issue, as the noble Lord, Lord Forsyth, pointed out, from the question of whether the count for the parliamentary election is held before the referendum count. We accept the sequence-the noble Lord, Lord Wallace, explained it on a previous occasion, although it is the subject of another amendment in this group-and we accept the explanation. The question relates not to the order in which the counts are taken but to their immediacy.

As noble Lords from Scotland will know, I am not one to kowtow to the Scottish media-far from it. There are some people in the Scottish media for whom I have great respect. There are others for whom I do not. Nevertheless, it is an important part of elections that, immediately after the casting of votes, people go to the count with adrenaline coursing wherever adrenaline courses. They take part in the count and see the way things are going, and the result-in particular in Scotland in the 73 first past the post constituencies. As the noble Lord, Lord Forsyth, rightly said, after this election there may not be a coalition that will take some time to form; there may be a clear result. The way that the polls are going, with a substantial lead for Labour, a clear result is becoming more likely. People will want to know how things are going in the constituencies.

This would not be an issue, but some-although not all-returning officers have said that it will be difficult to carry out the count immediately because the counters will be too tired. They may have been polling officers in polling stations before moving on to do the count. Of course, that problem can be dealt with if different people are used for the count. Fresh people can be brought in, if necessary, so that we get the result. The candidates, agents and supporters of the parties will stay up late into the night for the results to come through. It is part of the British and Scottish tradition that we see the results come through. The TV will cover it. It will get more people interested in the Scottish elections and make them more likely to take part in future.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

Perhaps I have misunderstood this. Obviously the noble Lord has studied it more carefully than I have. Perhaps he can explain why this could not be resolved simply by having two ballot boxes, one for MSPs and one for the referendum. Would that not resolve the problem of tiredness? I do not think that people will be waiting anxiously for the result of the poll on AV.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

That question was raised on a previous occasion in Committee. The Minister-I think it was the noble and learned Lord, Lord Wallace of Tankerness-said the problem was that some electors might inadvertently put a ballot paper for the election into the ballot box for the referendum. The noble Lord, Lord Forsyth, sighs and shrugs his shoulders, but that was the explanation given by the Minister. I agree that the first thing that needs to be done is the validation of ballot papers. However, once they have been validated, which should not take very long, the referendum ballot papers can then be put aside for whenever that count will take place, and the count can be started of all the ballot papers for the Scottish Parliament elections. I do not think that opening ballot boxes and verifying ballot papers will cause much delay. It will delay things a bit, but not as much as stopping the count altogether and starting the next day, which is what some returning officers have suggested.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 7:15, 7 February 2011

I return to the point about people putting ballot papers in the wrong boxes. Surely it is not beyond the wit of returning officers to organise a polling station in such a way that that is avoided.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I agree with the noble Lord. I was going to say "my noble friend": that is the way things are going. There are some strange bedfellows already in the coalition, but I am not suggesting that there should be any others. If the amendment is passed, accounting officers and returning officers are more likely to ensure that all the ballot papers go into the appropriate boxes. It will put greater pressure on them if, in the terms of my revised amendment,

"the count for the Scottish parliamentary general election shall not be delayed as a consequence of the combination of polls".

If that is agreed by this House and by Parliament, that would put pressure on the returning officers to make sure that people cast their votes in the appropriate ballot boxes.

Photo of Lord Kilclooney Lord Kilclooney Crossbench

My Lords, if the count for the Scottish Parliament gets priority over the count for AV, does that mean that the results for AV in Scotland will be revealed much later than the results for AV in England?

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

No. In England, Northern Ireland and Wales, the sequence is that the AV count will follow. The sequence is the same in each part of the United Kingdom. I propose not to change the sequence but to bring further forward the AV count in Scotland, because we will have the Scottish parliamentary election count earlier. If that takes place immediately, the AV count will be brought forward. This excellent amendment has that limited advantage as well. I am most grateful to the Public Bill Office for advising me. Strong views on this are held in Scotland. I know that the noble Lord, Lord Strathclyde, who is replying to this debate, takes as much interest in the Scottish parliamentary elections as I do. I have seen him at counts in Ayrshire on occasions. Usually I am smiling and he is not, but I am sure that he will not worry about that and will give the amendment sympathetic consideration.

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, my Amendment 35 in this group has much the same purpose, namely to deal with the worries that have been expressed in the Scottish press and in this House about the count in Scotland. It has had the effect of flushing out some reassurance. The Electoral Commission has publicly stated that instructions to the returning officer in Scotland will be that the count on the AV referendum is not to start until 4 pm. There may still be a case for putting this in the Bill. I look forward to the Minister's response to this short debate.

Photo of Lord Martin of Springburn Lord Martin of Springburn Crossbench

My Lords, I was interested to hear the noble Lord, Lord Foulkes, say that he did not kowtow to the press. He agreed to sponsor me in this House. We had a discussion a fortnight beforehand and I said: "George, try to keep your name out of the newspapers". He did, but hard as he tried, he could not keep his name out of the papers. He certainly does not kowtow to them, but he does make sure that he is in them.

There is an important principle here about the count taking place in a few hours after the close of the poll. Every political party represented in this House and in the other place depends largely on volunteers giving up their time to help in the political process. Without them, we would not have the political parties or the democratic process that we have. These men and women work months in advance-they are working now-to try to win their party a seat in their constituency or, in Scotland, on the list. They give of their time and sometimes they take holidays in order to do so. They negotiate with their employers to take a holiday that they are due and, when election day arrives, they take the day off. For manual workers and blue collar workers, that means giving up a shift, and they can well manage to stay on till the small hours of the morning and hear the result for which they have worked so hard. Sometimes they are disappointed; on other occasions, they are over the moon. However, it would be different if the count were left until later. It would not be practical for people who are paid an hourly wage to stay on and lose another day's income. For that reason, it is important that we keep the tradition.

There is also the comradeship that one finds at the count. It is a great gathering place. Perhaps you will not have seen party workers with whom you are friendly other than at a conference and you ask how things are going in their constituency. There is banter and even friendly rivalry between the parties. It is a good time for political people to all be under one roof, and I think it is a tradition that we should keep. For young people, it is a way of learning about the political process-how to take guidance from the agent or how to be a count agent-and to see the process in action.

I do not think it will have been forgotten that the last count at the Scottish elections was an absolute shambles. Electronic equipment had been brought in to do the counting, although everyone was used to manual counting. The machines did not work and, as a result, at certain constituencies the counters and returning officers had to seal the boxes and even the whole building, allowing the workers to go home to rest and come back the following day. I ask the Minister to ensure that that shambles does not happen again.

During the debates on this Bill, I have mentioned the Electoral Commission. I have no reason to pick on the commission but it will have to learn from its mistakes. It had some input into the decision to use electronic equipment at those Scottish elections and, because of that, it was not possible for independent adjudicators to find out what went wrong-in other words, they could not carry out an investigation. The taxpayer had to pay for a gentleman called-if my memory serves me right-Mr Gould to come from Canada to do the investigation, and the cost involved was substantial. That would not have happened had the Electoral Commission had some foresight. My criticism is that it tends to jump in without thinking through the consequences. Therefore, I hope that the counts that take place during the night and the wee hours of the morning continue and that we will learn from the mistakes of four years ago.

Photo of Lord Kilclooney Lord Kilclooney Crossbench

My Lords, earlier I raised the concerns that exist in Northern Ireland. I can understand the concerns of the noble Lord, Lord Foulkes, regarding how the count will proceed in Scotland, where two elections are held on the same day. The position in Northern Ireland is more confusing because we have three elections on the same day. I warned that this could cause confusion and over the past few days I have certainly experienced increasing unease in Northern Ireland about the count following these three elections. Two will be based on STV-one to the Northern Ireland Assembly and one to the district councils-and the third one on AV.

When I raised this matter with the noble and learned Lord, Lord Wallace, he said that when he came to respond to this amendment we would get an answer on what priority would be given to the counts for the three elections in Northern Ireland. Therefore, I should like to know in which order the counts for the three elections in Northern Ireland will take place, and whether we will have to wait for the result on AV to come through in Northern Ireland or whether it will come out at the same time as in England, Scotland and Wales.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice)

We support the principle behind these amendments, which is for the AV count to take place after those for the Welsh Assembly, Scottish Parliament and local elections, the local elections count being caught by the amendment in the name of my noble friend Lord Lipsey. Whether that requires an amendment to the Bill or whether it can be dealt with by a clear statement from the Minister depends on what the Minister says, but we support the approach of these two amendments.

Photo of Lord Strathclyde Lord Strathclyde Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, it is useful to have had this short debate on this subject and I hope that what I say will be welcomed by the noble Lords, Lord Foulkes and Lord Lipsey, in whose names the amendments stand, and by others who have spoken in the debate. It is always good to hear the noble Lord, Lord Martin of Springburn, talk about great traditions. He finds great comradeship-if that is the right word-on traditional matters. In the dim and distant past I have been present at Glasgow counts, as well as at Ayrshire counts, so I understand what he means about the comradeship that occurs.

We debated this matter in Committee, when my noble and learned friend Lord Wallace made it clear that the parliamentary polls will, once everything has been verified, be counted ahead of the referendum poll. That is the principle that will underlie everything. The Government's policy is very clearly that the votes relating to the elections, wherever they take place, will be counted before those of the referendum. The referendum count will come last, and the chief counting officer can, using her power of direction under paragraph 5(5) of Schedule 1, direct counting officers in the discharge of their functions or require them to take specified steps.

I refer noble Lords to the paper published by the Electoral Commission in December 2010, which is also available on its website. It sets out the chief counting officer's intention to direct that the referendum count should not begin before 4 pm on Friday 6 May. The noble Lord, Lord Lipsey, referred to that. The decision to start counting the ballot papers cast in the referendum poll at 4 pm was reached in the light of discussions with the senior returning officers from all areas of the UK and followed consultation with a number of interested organisations and affected parties, including electoral administrators.

The timing of the count is ultimately a matter for the chief counting officer to direct. I understand that the Electoral Commission is satisfied that the assumptions underpinning this direction will mean that the referendum count should not delay the results of the scheduled elections. I am also aware that specific discussions between the commission and administrators are taking place to ensure that counting officers in Northern Ireland are equipped to carry out concurrent counts and that, in any event, this should not result in a delay in the results being announced for any poll. Therefore, I do not consider that this issue needs any further clarification in the Bill.

To those such as the noble Lord, Lord Foulkes, who would like a quick result, I say that the Gould report, which he will know well and has prayed in aid, considered overnight counts and came out clearly against them. Gould said:

"We recommend that if the polls continue to close at 10:00 pm, there should be no overnight count of the ballot papers ... To achieve the highest level of confidence in the counting process, it is essential that the emphasis is on the quality of decision-making related to the count, not on the speed with which the count is conducted".

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 7:30, 7 February 2011

Perhaps I am mistaken, but did not the Gould report also recommend that we should not combine referenda or other electoral tests with elections to the Scottish Parliament?

Photo of Lord Strathclyde Lord Strathclyde Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, different bodies have said different things on different occasions. We are entirely happy that we have the confidence of the Electoral Commission and other bodies to do it in this way.

The noble Lord, Lord Kilclooney, asked about later announcements-how they would be made across the United Kingdom and whether they would all be made at one point. I can confirm to the House that there will be one announcement for the whole of the United Kingdom. That is one of the reasons why the Electoral Commission is organising the counts.

Any provision that seeks to add specific provisions to the timing of the count may well be complex and would be apt to confuse administrators at this late stage. It is likely that any amendment would need to be replicated for each election on 5 May. We have a clear statement of government policy and the clear view of the Electoral Commission. I hope that that is sufficient for the noble Lord, Lord Foulkes, to withdraw his amendment and for the noble Lord, Lord Lipsey, not to move his.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I have received the Minister's response with mixed feelings. He prays in aid Lord Gould-it was the noble Lord, Lord Martin, who mentioned Lord Gould-and I remind him that, although the noble Lord, Lord Tyler, was shaking his head, the noble Lord, Lord Forsyth, was right to say that Lord Gould recommended that the polls should be separate.

Photo of Lord Martin of Springburn Lord Martin of Springburn Crossbench

The person I referred to was not the noble Lord, Lord Gould; he was a Canadian gentleman. He certainly was not a Lord.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I have a noble friend Lord Gould, whom I absolve of any responsibility for this.

Mr Gould, the Canadian, suggested that the elections should be separated. In fact, the Scottish Parliament took a decision to delay the local government elections for a whole year as a result of that and suddenly it finds the referendum spatchcocked in to create extra problems for it. Although extra problems will be created, they are not in any way as bad as the problems described by the noble Lord, Lord Martin, where the electronic counting came on top of the voting on two ballot papers, one of which was the most confusing I have ever seen in my lifetime-and I have seen ballot papers in the Soviet Union, the United States of America and elsewhere. It was a crazy ballot paper. I hope and expect that these ballot papers will be simpler and that the count can take place.

I am disappointed that the Minister still presses that the count should not be held overnight. I am worried that the chief counting officer will have responsibility for this. As I understand it, the chief counting officer is the chair of the Electoral Commission. What the noble Lord, Lord Martin, said about the Electoral Commission will be echoed by a number of Members in this Chamber. However, it has improved with the recent addition of political members and, I hope, will now be more sensitive.

Notwithstanding what the Minister has said, I hope that the chief counting officer and the chair of the Electoral Commission will have heard this debate loudly and clearly and will recognise the pressure to have the count overnight, not only from this House but also from all political parties in Scotland. Although I accept that, as the Minister said, it may not be best to have that written into the Bill, I hope that it will be taken into account-otherwise the chief counting officer will be even more unpopular in Scotland than Mr Alex Salmond. I beg leave to withdraw the amendment.

Amendment 5F withdrawn.

Amendments 6 to 7A not moved.

Amendment 7B

Moved by Lord Rooker

7B: Clause 4, page 3, line 31, at end insert-

"(8A) Where a day is appointed by an order under section 1(2B)-

(a) if that day is the same as the date of a poll mentioned in subsection (1), the Minister may by order make provision disapplying that subsection or any of paragraphs (a) to (c) of it;

(b) if that day is the same as the date of a poll mentioned in subsection (2) or (3), the Minister may by order make provision disapplying the subsection in question;

(c) if that day is the same as the date of a poll mentioned in subsection (4), the Minister may by order make provision disapplying that subsection or either of paragraphs (b) and (c) of it.

(8B) Where a day is appointed by an order under subsection 1(2B), and that day is the same as the date of a poll not mentioned in subsections (1) to (4), the Minister may by order-

(a) provide that the polls are to be taken together, and

(b) make provision for and in connection with the combination of the poll.

(8C) An order containing provision made under subsection (8A) or (8B)-

(a) may make supplemental or consequential provision, including provision modifying or amending this Act or another enactment (and, in particular, provision modifying or amending this Act as regards the meaning of "voting area" or "counting officer");

(b) may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament."

Amendment 7B agreed.

Consideration on Report adjourned until not before 8.35 pm.