My Lords, Amendments 8 and 9 are in my name and the name of my noble friend Lord Bach. Clause 5 refers to exceptions to the spending rules in the Political Parties, Elections and Referendums Act 2000 for the proposed referendum on the voting system for the House of Commons. Amendment 8, the first in this group, seeks to emphasise that the broadcasts that are exempted are referendum campaign broadcasts. We contest that referendum-related materials and party election materials must be differentiated. Our second amendment, Amendment 9, picks up the same point. If political parties are allowed to use their election broadcasts to argue the merits of the referendum, that could lead to claims that the argument has been weighted more on one side than the other. Once you can use an election broadcast to promote views on one side or other of the AV or non-AV debate, the playing field is no longer equal. Party election broadcasts, which are an opportunity for all parties, should be about the elections for individual office holders, not the referendum.
The Political Parties, Elections and Referendums Act 2000 and the Bill seek to create a level playing field where expenditure should not be the determinant of who wins. If that can be got around, because of the combination aspect, it leaves the possibility of the expenditure being distorted. Everyone agrees that the referendum result should be determined on its merits, not on who can spend the most money. The changes that are recommended by our amendments are important. It should be in the interest of all parties and none that clarity over the administration of press coverage and expenses during the election period is maximised.
"it is vital that we have a level playing field wherever possible during the referendum campaign".-[Hansard, 15/12/10; col. 617.]
I trust that your Lordships' House would agree.
"We recognise that there is an issue to be discussed".
I can inform the House that there have been no such discussions. We have not been approached by the Minister or by his officials, and I have seen no draft amendment. The noble Lord, Lord McNally, continued:
"There would have to be discussions without preconditions on either side. If the noble and learned Lord wishes to press the amendment, I shall resist-and that would be a mistake for both of us".-[Hansard, 15/12/10; col. 621-22.]
We withdrew our amendment in Committee, relying on the good faith of the Minister, but there has been nothing since then. I read the noble Lord, Lord McNally, whom I admire and like and am happy to see back, as being someone who would do something about this, so I would be keen to hear from the noble and learned Lord, Lord Wallace of Tankerness-I assume that he will be responding to this, only because there is no other Minister on the Bench apart from him-what has happened about this.
The position in Committee was that the Government were acknowledging that there was an issue-namely, that a political party could use its party political broadcast to promote one side or the other in the referendum campaign, thereby getting around the expenditure limits, which we all agreed to be equal for everyone. That is why I withdrew my amendment, but we have heard nothing. Perhaps the Minister could enlighten us about what happened.
I support my noble friend on Amendments 8 and 9; they are important. I do not want to spend time on this, but I re-emphasise what has been said; on several occasions we have been promised changes and concessions that have been needed throughout the Bill, but we have had nothing. This does not reflect well on the Government; it reflects very badly, and it is a large part of the reason why we have problems on this.
I shall address the issues in the amendment. There is no doubt in my mind that it is important to keep the funding and the financing separate between elections. My noble and learned friend has made that point. The issue is also covered by the Political Parties, Elections and Referendums Act 2000 in that-and I understand that the Electoral Commission has this view-the Act makes it clear that there should always be a distinction between the various elections in the funding available for them. Along with the Electoral Commission, we make the point-I certainly want to emphasise it-that we should continue to make sure that there is a separation in the funding of elections. A referendum should not be muddled up in a party election broadcast that is actually talking about the election of people as opposed to the outcome of a referendum.
The other thing that the Electoral Commission drew attention to-and this was the first time that I had had a chance to think about it-is that Section 127 of the 2000 Act to which we are all referring currently prevents broadcasters from transmitting,
"any broadcast whose purpose (or main purpose) is or may reasonably be assumed to be", to further a referendum campaign. That is what we want to avoid, and my anxiety-this is the point that the Minister has to answer-is whether that wording in the Act would cover all aspects of an inclusion of statements about the referendum in any party political broadcast. It would clearly exclude a party political broadcast that focused particularly strongly on the referendum. It would stop a party putting out an election broadcast that focused maybe 50 per cent of the time on the referendum. I am not sure, however, that that section of the 2000 Act would prevent a reference to the referendum in a way that might encourage people to vote one way or the other. For example, the party political broadcast could be almost entirely on that party's general policies but could end with a statement at the end that, for example, "We also believe that by voting this way or that on the referendum, you will assist our policies", or, "You will assist this change". In other words, it is not clear to me that one sentence in that broadcast would be excluded under the 2000 Act. We need some clarity on that.
You do not need to be too clever to work out that if you spend most of the time and argument on your party's policies, but then put in one or two sentences about how people should vote in the referendum, you can sway opinion. As well as generally supporting this amendment, I want to know whether it is true that Section 127 of the 2000 Act would exclude any reference at all to the referendum, or whether you could have one or two sentences in the broadcast that would support one view or the other. If Section 127 is not clear enough to exclude that, these two amendments are particularly important and ought to be supported. If the legal view is that Section 127 of the Act would exclude any reference to the referendum, we are covered, but I am not sure that it does. The wording, as I understand it, is a little weaker than I would like it to be.
My Lords, these are important amendments. I immediately take the point made by the noble and learned Lord on the follow-up to Committee. I regret any discourtesy that has been felt by the noble and learned Lord. While he was making his comments, I had the draft of a letter to him; I have now had it confirmed by the Leader of the House that it has been issued. It is dated with today's date, so he might not have received it yet, but it is a fairly comprehensive letter that runs to almost three pages. I will not read it out or put it on the record. I apologise if the noble and learned Lord has not yet received it.
I can only confirm the factual position. I fully take the point that the noble and learned Lord has not yet had an opportunity to consider the letter. I have no idea when it was put into the system. I saw a draft earlier but was not in a position until now to confirm that it had been issued. As I indicated, I apologise for any discourtesy to the noble and learned Lord.
I turn to the two amendments. On the first one, as we explained in Committee, the Government introduced the clause to which the amendments relate in the other place after the Political and Constitutional Reform Committee identified an ambiguity in the current legislation-the Political Parties, Elections and Referendums Act 2000-over whether publication of material about the referendum by a media organisation in favour of a specific result would be caught by the spending restrictions that apply to the campaigning groups. Clause 5 provides that the costs of covering and reporting on the referendum in the media are not referendum expenses. In the interests of the freedom of the press, it would be wrong for the spending restrictions to apply in this way. I think that is common ground across the House.
The amendment moved by the noble and learned Lord seeks to add "referendum campaign" before "broadcasts" to line 7 of page 4. This would go against Schedule 13 to the PPER Act 2000, which sets out that,
"agency fees, design costs and other costs in connection with preparing or producing", referendum campaign broadcasts are to be included as referendum expenses. I am not sure whether it was the noble and learned Lord's intention to exempt such expenses from counting, but the Government do not agree that this should be the case. Designated lead campaign organisations are entitled to free referendum campaign broadcasts in terms of airtime, but the expenses incurred in respect of the production of these referendum campaign broadcasts do and should count towards referendum expenses. Therefore, it would not be right to accept this amendment, which would exempt these production expenses from counting.
Another reason why we do not agree with the first amendment is that it would bring back the ambiguity that we sought to remove through Clause 5 by limiting the provision to referendum broadcasts only. It would not therefore cover other types of broadcast, as it was designed to when we added it to the Bill. The result would be to reactivate the question of whether any broadcast other than referendum campaign broadcasts would be caught by the spending restrictions as they are currently drawn. It would then be ambiguous as to what would and would not count as referendum expenses in other types of BBC or Sianel Pedwar Cymru broadcasts-such as news programmes and politics programmes-other than those for the referendum campaign. We all agree that the media play a vital role in building public awareness and presenting facts and opinions on the matters raised by the poll. This amendment could prevent media comment if the spending limit for referendum expenses was reached. This would not be right. That was also the view of the Political and Constitutional Reform Committee in the other place. We believe that accepting this amendment would go against the Committee.
We agreed in Committee to consider carefully the second amendment. I can assure the House that the Government have done so. I regret the lateness of the letter, but the position is set out in it. The Government agree with the principle that party election broadcasts should not be used as referendum campaign broadcasts. As was highlighted in Committee, there is a clear definition of what constitutes a referendum campaign broadcast under Section 127 of the Political Parties, Elections and Referendums Act-to which the noble Lord, Lord Soley, drew our attention. Any broadcast whose purpose or main purpose is to procure or promote an outcome in the referendum is a referendum campaign broadcast. Referendum campaign broadcasts can be made only by the designated lead campaign organisations. The current law therefore already provides that the purposes-or main purpose-of party election broadcasts must not be to promote or procure a referendum outcome. Therefore, we can be assured that party election broadcasts cannot be used by political parties as a significant referendum campaign opportunity. In a moment, I will come to the crucial point that the noble Lord, Lord Soley, raised.
Section 127 of the PPER Act provides a safeguard against a political party using a party election broadcast as a referendum campaign broadcast. However, it also provides appropriate leeway for broadcasters to make a judgment call as to whether material that a party might want to broadcast strays beyond mentioning the referendum in passing in an election broadcast and into the realms of what would become a referendum campaign broadcast.
Is the noble and learned Lord saying that, if one of the purposes of a political party's broadcast-though not its main purpose-was to encourage people to vote in a particular way in the referendum, it would infringe Section 127 of the Political Parties, Elections and Referendums Act?
What I said was that, as I understand it, under Section 127, any broadcast whose purpose or main purpose-there is obviously a difference; a purpose is not necessarily a main purpose-promotes a particular outcome, it would fall foul of Section 127.
The point I was trying to develop is that there is a judgment call to be made as to whether we recognise and accept that material that a party might want to broadcast strays beyond mentioning the referendum in passing in election broadcast and goes into the realms of what then becomes, in terms of the Act, a referendum campaign broadcast. In one view, a statement that briefly refers to the referendum-the fact that it is taking place and sets out whether the party supports a particular outcome-is merely an expression of the party's policy. Such a statement may be necessary to explain the policy platform of the party's election campaign and may not qualify as referendum campaigning in a wider sense. If that is right, this sort of content may have a legitimate and logical place in a party election broadcast. Going further than that-for example, by setting out the arguments in support of its favoured outcome-may cross the line and move towards it being a broadcast that is subject to the limitations in Section 127. Obviously the Government are not the ultimate arbiter here and the views of the broadcasters are critical. However, this amendment would remove any ability for the broadcasters to take a flexible approach to these sorts of issues.
Having spoken with the broadcasters, the Government think that this sort of flexibility can be sensibly administered without causing undue harm to the referendum or election campaigns. Indeed, not providing that sort of flexibility might cause undue harm to effective and fair campaigning. There will be party election broadcasts for the Scottish Parliament, the Welsh Assembly, the Northern Ireland Assembly and local elections on
We have discussed the technicalities of the noble and learned Lord's amendment and how these party election broadcasts would be regulated in practice during a referendum period with colleagues from the Department for Culture, Media and Sport, representatives from the BBC and the Broadcasters' Liaison Group, Ofcom and the Electoral Commission. It is clear that in matters of political broadcasting, particularly political advertising, broadcasters are frequently required to make a judgment about what constitutes correct practical interpretation of the legal requirements. The need for broadcasters to make a judgment in interpreting Section 127 of PPERA would not be unusual in this context.
I readily accept that on one view the amendment could be seen as helpful for broadcasters as it draws a black and white line in legislation as to what material can and cannot be included. The Government are concerned, however, that this approach would go against a well established system that is already in place for dealing with matters of party political coverage and would unnecessarily limit the ability of a party to show how its position on the referendum forms part of the wider policy platform on which it wishes to campaign in the elections on
I was trying not to intervene but I have to do so in view of what the Minister has just said. The type of statement that would worry me is if the party political broadcast was majoring on, for example, giving more power to the people-which might be about a range of things, local authorities or whatever- and it said, "If you vote this way or that way on the referendum, that will increase your power". I suppose that we need to go back to the broadcasters on this, but I do not think that that ought to be allowed. The Minister makes a fair point; we want to allow the broadcasters flexibility but they need to be aware that a statement like that would be seen as giving significant support to the referendum one way or the other.
I am grateful to the noble Lord for the way in which he presents a very tricky and complex issue. I think I indicated that one of the difficulties was the possibility of limiting the ability of a party to show how its position on the referendum formed part of a wider policy platform. The point I have been trying to make is that broadcasters have experience in this matter. It is probably invidious for Governments to decide what goes too far and what is on the right side of the line. There is also a question of whether legislating to such specificity on the content of party election broadcasts could risk limiting a political party's freedom of expression. I do not think that anyone here would wish that to happen.
I have had experience of this matter. Is not the reality that anyone preparing a broadcast will always err on the side of caution as it would be a very expensive scenario if broadcasters were told, "We think you are infringing the requirements of the 2000 Act", and they therefore had to amend dramatically, or even withdraw, the intended broadcast? Therefore, I should have thought that the present flexibility is much safer than the provision which the noble and learned Lord is trying to include in the Bill.
My noble friend makes a fair point. The last thing any political party wants is to find that, after having spent money, the broadcast has to be pulled. I shall discuss in a moment approaches that have been made to the political parties by the chair of the Broadcasters' Liaison Group. I suggest that the appropriate place for further rules on the content of party election broadcasts would be under the framework established by the Communications Act 2003, where existing regulation of political broadcasts lies. The chair of the Broadcasters' Liaison Group wrote to the political parties in November 2010, highlighting the existing provisions and opening lines of communication on the subject. It might be useful to read the content of the letter into the record. It states:
"If you are considering including any references to the referendum in your PEB, then we draw your attention to Section 127 of the PPERA. This section prevents broadcasters from transmitting any broadcast where it's purpose, or main purpose, is, or can be assumed to be, to further a referendum campaign for a particular outcome other than by the designated RBCs. Therefore if you intend to include any references to the referendum in your PEB, I'd be grateful if you could contact me well in advance so that the BBC is able to make a judgment about whether the proposed PEB may put it in breach of the statutory provision".
It is the Government's view that this established mechanism of communication between the broadcasters and the political parties will effectively manage the situation and answer queries from the political parties as to what they can and cannot include in their broadcasts. The broadcasters' guidance is the most appropriate place to deal with this matter, as for other aspects of political coverage.
These are important amendments. I again apologise that the noble and learned Lord saw the letter at a late stage, but I hope that, given what I have said, he will recognise that a lot of consideration has been given to this, including engagement with the broadcasters, the DCMS and others. I hope that the House will agree with the Government's conclusion that, after careful consideration with relevant stakeholders, the current provisions, along with the broadcasters' guidance, are the right way to deal with party election broadcasts during a referendum period, rather than amendments to the Bill. Against that background, I ask the noble and learned Lord to withdraw the amendment.
I am glad that the noble Lord, Lord McNally, is here and has recovered. He will remember what I said in Committee. I completely trust him, and I am more than happy to accept his assurances and to discuss the matter in the spirit in which he made the offer. I am absolutely sure that the two of us can reach a solution that is acceptable to both of us.
The noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord McNally, will also remember that the noble and learned Lord, Lord Mackay of Clashfern, intervened in the same debate and said:
"I think that I am right in saying that at the moment a party-political broadcast in connection with a referendum is allowed, so long as that is not the principal or main purpose, or some such phrase, of the broadcast. It may be that what the noble and learned Lord, Lord Falconer, and others have identified is a question of whether or not that general provision is wise or whether it should be modified. The question may go somewhat further than just this referendum and that issue needs to be looked at".-[Hansard, 15/12/10; col. 622.]
That was the issue to which my comments and the comments of the noble Lord, Lord McNally, referred.
I completely exonerate the noble Lord, Lord McNally, and the noble and learned Lord, Lord Wallace of Tankerness, of any fault on their part, but the consequence of what happened is that I have today been handed a letter, which I am reading while the noble and learned Lord gives what appears to be a wholly unsatisfactory answer. He appears to be saying that in order not to lose flexibility, it is important that political parties should be able to make a casual reference to the referendum in their party political broadcasts. He rejects my Amendment 9, which would mean that there would be certainty about the position and a level playing field. What would that protect? As I understand it, it would protect a political party's right to mention the referendum. Superficially and on the face of it, that would seem to be utter nonsense and something which, if I had had an opportunity to talk to someone of the stature of the noble Lord, Lord McNally, or the noble and learned Lord, Lord Wallace of Tankerness, before they gave voice to the note I have here, would perhaps have been modified. That was the impression left by the assurance I was given by the noble Lord, Lord McNally.
I am disappointed at the lateness of the letter from the Leader of the House. I make it clear that I am not remotely blaming the noble Lord, Lord McNally, and the noble and learned Lord, because they are under different sorts of pressure, but it is an unfortunate process, which means that assurances are being given which, because of the speed with which we are operating, are not being delivered on. Although it is unusual to do so, I will bring this matter back at Third Reading. I beg leave to withdraw the amendment.
Amendment 8 withdrawn.
Amendments 9 and 10 not moved.
Clause 7 : Interpretation
Amendment 10A not moved.
Clause 8 : Commencement or repeal of amending provisions
Moved by Lord Rooker
10B: Clause 8, page 6, line 19, leave out "must" and insert "may"
In that case, I will move it, but obviously I will not press it. I fully accept that this must be brought into order, which cannot be done by inserting "may" in place of "must". That is what the noble and learned Lord said. The evidence of that related to another issue, which was to do with the date. This may need a couple of hundred words from parliamentary counsel. I fully accept that while the two amendments are linked-I was questioned about this at the time; they should have been linked-this is not the solution. It does not solve the problem for the Government or parliamentary counsel. At some point, this has to be tidied up. I fully accept that Amendment 10B will not do this.
The amendment is re-moved but not removed-yet. I fully accept the spirit in which the noble Lord, Lord Rooker, re-moved it. As he recognises, this is not entirely consequential. We could get a turnout of 80 per cent and yet, with this change, we would still create a power rather than an obligation. I do not need to elaborate, as the point has been made. The Government cannot accept the amendment. In the spirit in which the noble Lord re-moved it, I ask him to withdraw it.
My understanding when I was a Minister was that, when an amendment was carried, the Government would bring forward amendments to tidy up the Bill to reflect the position in relation to the plain intent of the amendment-in this case, Amendment A1. We always did this and we expect the Government to make the rest of the Bill reflect the effect of the amendment of the noble Lord, Lord Rooker.
My Lords, perhaps I may assist the House from my memory of our long period in opposition, when the noble and learned Lord was a Minister. There were two occasions on which the Government might have taken action. One was when it was agreed in advance that an amendment was consequential on an amendment that was carried. I believe that that is not the matter to which the noble and learned Lord referred. He may be referring to the second occasion, which was that, when an amendment was carried, the sense of the rest of the Bill had then to be tidied up in order to reflect the spirit of the decision taken by the House.
Perhaps the noble and learned Lord would confirm that it is the second of those occasions to which he refers, because there was no agreement that this amendment was consequential on the first when the Division took place earlier today. That is not to say that the Government refuse to look at the implications of the Division's result. However, the noble and learned Lord will be aware that there was no undertaking to consider this amendment as consequential on the first and he will of course appreciate that there is a difference between the two positions.
"If less than 40% of the electorate vote in the referendum, the result shall not be binding".
The noble and learned Lord, Lord Wallace of Tankerness, says that if one puts in "may", one makes it unbinding even if the turnout is more than 40 per cent. Is that consequential or is it tidying up? I have no idea. I would like to know what the noble and learned Lord, Lord Wallace of Tankerness, is promising to do. With respect to the Chief Whip, I found the distinction meaningless, unhelpful and ill informed.
It is customary, when a noble Lord accuses another Member of the House of being ignorant, to give them the opportunity to reply.
I apologise. I was keen to find out the position of the Government in relation to this. What the Chief Whip said was unhelpful. It is important for the Government to state their position.
My Lords, the vote took place only a few hours ago and the Government are still to consider how they will respond to it. In answer to the noble and learned Lord's question, this is neither a consequential amendment, as the noble Lord, Lord Rooker, and I have indicated, nor is it a tidying-up one, because it does not tidy up. It goes much further than that. Indeed, it breaks the linkage, because it would make the power permissive rather than a duty. As I indicated, that could therefore mean that the power was there in any circumstance. Even if there was an 80 per cent turnout at the referendum with a 75 per cent vote in favour, the effect would not be to oblige the order to be brought forward to implement a yes vote. That was not what the House voted for and therefore I cannot accept the noble Lord's amendment, which I think he fully understands.
I do. I do not want to fall out with my noble and learned friend but I accept the distinction that the Chief Whip gave in respect of this amendment. The position is the same as with Amendments A2 and 7B, where one is consequential on a change in the date. This looks simple and it is simple. The point is that the House knew what the situation was with the date change, just as it does with Amendment A1. In the morning after they have slept on it, the Government may take a view and say, "We're going down the other place. We're going to get this kicked out anyway". That is a tough call when the support of the Cross Benches is taken into account. However, some rewriting of other parts of the Bill is required-it is not just a question of "may" or "must"-and I fully accept that. On that basis, I beg leave to withdraw the amendment.
Amendment 10B withdrawn.
Amendment 10C not moved.
Moved by Lord Davies of Stamford
11: Clause 8, page 6, line 21, leave out paragraph (a) and insert-
"( ) over one third of those eligible to vote in the referendum have voted in favour of the answer "Yes", and"
My Lords, this amendment has been very happily and felicitously overtaken by the House's decision to adopt Amendment A1 in the name of my noble friend Lord Rooker. I think that it is possible to produce substantive arguments in favour of a threshold before a referendum comes into effect and it is possible to produce another set of arguments in favour of a threshold before a referendum becomes mandatory. However, I suspect that the whole House will be unanimous on this. It would not make any sense whatever to have two thresholds in relation to a referendum. Therefore, I have no intention whatever of asking the House to vote on this or of taking the matter further. I just want to make one comment.
Whatever the substantive arguments for the two types of threshold that I have just outlined, my noble friend Lord Rooker seems to have won the argument in favour of his approach and his amendment. The House of Commons has not yet pronounced on that. It has considered the approach, although not the actual figures, that I suggest for a threshold and it has rejected it. It is right that this House should be very conscious of the views of the elected House on a matter such as this. My noble friend Lord Rooker has come forward with a totally original idea. It was not considered in the other place or by anyone in this place before he ingeniously came forward with it. Therefore, it is with great pleasure that I say that my own amendment ought, in my view, to be eclipsed, overtaken and indeed buried by Amendment A1, and I have no intention of taking it any further.
No, my Lords. That is not on. Amendment proposed: in page 6, line 21, leave out paragraph (a) and insert the words printed in the Marshalled List.
My Lords, this amendment is one of a group. Now that the amendment has been moved, I assume that we can speak to the amendments in the group, of which two stand in my name. I have no intention of saying anything about Amendment 12A, which would require a 50 per cent turnout in order for the referendum to be carried. Technically, I could probably push it a little further but I accept that my noble friend's amendment is an improvement on that and that it is probably more acceptable to the House, so I do not intend to say any more on that amendment.
However, I do intend to say a couple of words about Amendment 12B, which is not as printed on the Marshalled List. The gremlins got into that somehow. The way in which it is written in the Marshalled List makes no sense whatever. It basically states that the referendum will not be carried if 25 per cent of those who have voted in the referendum have voted yes. Obviously, by definition, if only 25 per cent of the people who have voted in the referendum have voted yes, the referendum would not be carried. The amendment as it stands is nonsensical, which is why there is a manuscript amendment that contains what I intended to say-that the referendum would not be carried unless one in four of the electorate voted yes.
I try to take a common-sense approach to legislation in a debate about a major change to our constitution. We have already decided that the electorate are not the real electorate but the people who are on the electoral roll; they do not include the hundreds of thousands, if not millions, who are not on the electoral roll. However, leaving that aside, I simply suggest that 25 per cent-one in four-of the total electorate should vote yes in order for the change in our constitution to take place.
I have done this at the suggestion of the noble Lord, Lord Tyler, in Committee. He is looking startled and I am not surprised. He put forward an objection to my amendment that required a 50 per cent threshold on turnout. He asked what would happen, given the 50 per cent threshold, if 49 per cent voted yes in the referendum and no one or less than 1 per cent voted no. He is looking puzzled. The point that he made is that, in those circumstances, according to my amendment, the referendum would not be carried. I hope that I am carrying the House with me at this stage. I am not even carrying the noble Lord, Lord Tyler, with me, which is particularly worrying.
I shall try again. His objection was to my 50 per cent turnout threshold-in other words, the referendum would be dead if half the electorate did not vote. He asked what would happen if 49 per cent of the electorate -which was wildly optimistic from his perspective-voted yes and no one, or one or two, voted no. He said that in those circumstances my amendment would be grossly unfair to the yes campaign because, despite getting 49 per cent of the electorate's vote, it would not carry. That was his point. Has the penny dropped?
The penny dropped a long time ago-many hours ago. The noble Lord, Lord Grocott, is wrong about the arithmetic. I was talking about the circumstances in which 45 per cent voted yes and 4 per cent voted no, so there would be no qualification. However, if 44 per cent voted yes and 6 per cent voted no, then it would carry.
Once you get into this game, the noble Lord's colleague in the other place, Mr Christopher Bryant, was absolutely right to say:
"I do not agree with the hon. Gentleman about thresholds in referendums because, broadly, they are not a good idea".-[Hansard, Commons, 2/11/10; col. 846.]
In fact, with one exception-the Scottish case-thresholds in referendums are a new development in our constitution and I honestly think that we should give them very careful consideration. Mr Bryant was right: this is just as much a change to our constitution as the big changes that we keep being told that this referendum is introducing.
I am quite hurt. I have brought forward an amendment that precisely meets the noble Lord's objection, which was-I repeat-that a huge number of people could vote for the yes campaign and it would still not carry if it was less than 50 per cent of the total turnout. So-having established that point, I hope-I have therefore brought forward this amendment which meets his objection. It states that it would require 25 per cent of the electorate for the yes vote to carry, which obviously completely removes the problem he identified in relation to my 50 per cent turnout threshold.
After my long preamble, far longer than I had intended, perhaps I may point out that all the amendment suggests is a change in our electoral system-which the Liberal Democrats, throughout my adult life and probably before then, have been saying is what the electorate is desperate for. I say simply that it would be a good idea if you could get one in four of the electorate to vote in favour because that would validate the referendum. Apparently, they are resisting that commonsense proposal as well.
We are in a silly position, unless someone wants to intervene from the Liberal Democrat Benches. I cannot believe that even Liberal Democrats would argue that if only three people voted in the referendum-two in favour and one against-that would be a valid basis on which we could change our country's constitution. If any of them thinks that that would be fair, right and sensible, will they please intervene? I am not filibustering; I want to get this over with as much as anyone else does. If they cannot tell me, the only difference between us is the level at which the threshold should be. In the absence of any intervention, I must assume that they are in what is, frankly, a silly position.
That would not matter to me too much, were it not for the fact that this referendum will not necessarily be the last one of this Parliament, because I have to take Nick Clegg at his word, confusing as that seems at times. He has described this as just part of the greatest reform package since 1832-greater than women's suffrage, universal adult suffrage, or anything of that sort. We have two more Bills coming down the line: one to establish fixed-term Parliaments and the other to abolish the House of Lords in its present form and replace it with a fully elected House.
It seems that, under the Bill, if three people in the United Kingdom vote in the referendum-two in favour and one against-we change the constitution. I ask those noble Lords who say that this is not as important a constitutional issue as abolishing the House of Lords in its present form the following question. Would any of them be happy with a referendum, should it come-and my word it ought to; it would surely be indefensible to have a referendum on a change in the voting system but not on one which effectively abolishes one of the two Houses of Parliament-on a two, one vote in the country? Or do they think, as I and other noble Lords do, that there should be a rather more convincing demonstration of the public will on abolishing one of the two Houses of Parliament? The danger of the present situation is that we have no threshold, which means that the precedent will have been set that future referenda on changing the constitution, however big that change may be, could be done on a very small turnout and a very small yes vote.
It is late, I do not intend to press this to a Division, but I am intrigued to discover that is no one, apart from the noble and learned Lord, Lord Tankerness, who is highly skilful and whom I assume will respond to the amendment, can explain that. I assume that the noble and learned Lord has a graphic explanation as to why he would be comfortable with a very low turnout and a very low yes vote changing our country's constitution.
I understand why those on the Lib Dem Benches do not rise to their feet to dispute the amendments. But, as one who, on the AV referendum, agrees with them, I shall do speak for a minute or two. I think that thresholds are a bad idea in referendums. I supported the amendment proposed earlier by the noble Lord, Lord Rooker, because it seems to me that, generally, a pre-legislative referendum is a good thing, but I do not support a threshold.
If there is a vote on this, if the threshold proposed by the noble Lord, Lord Davies, is to be reached, it will require 264 Peers to vote in the Content Lobby for it to be carried. If that of the noble Lord, Lord Elystan-Morgan, is to be reached, we will need a total turnout of 316 peers. And if that of the noble Lord, Lord Grocott, is to be reached-50 per cent, and 25 per cent yes- we need 395 peers to vote with 198 saying yes. I do not see why we should have a different test for the legitimacy of the vote in the country than we have for the legitimacy of the vote in our own House. Thresholds are arbitrary, they introduce bias, they distort debate and they have absurd consequences. I deal very briefly with each of these. As regards them being arbitrary, look at the range of numbers before us. They could be nice round numbers. As Sir Patrick Nairne, chairman of the independent Commission on the Conduct of Referendums, said, the main difficulty in specifying a threshold lies in determining what figure is sufficient to confer legitimacy. There is no answer to that. On the bias aspect, one side has to achieve only one thing-
I find that my amendment inadvertently has provoked a rather interesting discussion on this matter. I am listening to my noble friend with great attention. Of course, there is no scientific way of determining what the particular figure might be, but is my noble friend arguing that even if a major constitutional amendment is, say, passed by 6 per cent voting in favour, out of 10 per cent who vote altogether, that that would be an adequate degree of legitimacy justifying constitutional change?
It is a good point that my noble friend makes. The answer to it is that that is why I want a pre-legislative referendum, so that the judgment can be made in the light of all the facts after the referendum and not be made in advance in what is necessarily an arbitrary way.
On bias, one side has to achieve only one thing: it has to prevent a majority voting against the change it wants. However, the yes campaign has to do two things: it has to win more votes and to do better it has to make sure that the turnout is up. This also raises questions about legitimacy of the result. Would the side against which this bias exists really regard a result achieved in this biased way as legitimate? In my view, it would not, although it might rely on a verdict of Parliament after a referendum as a legitimate verdict in the circumstances.
My third point is that the threshold distorts debate. What we want in this referendum is both sides putting their strongest possible case in front of the electorate either for the proposed change or against it-whichever they want. But this case gives the no campaign an incentive to put two different arguments: "Vote no if you must vote, but we'll get just as many votes if you just don't bother to turn out". It is the sit-and-watch-telly no campaign. That does not seem to be a very good idea. The experience of Italy-I will not go into it in great detail-where abstentions are not a vote does not reflect well on this practice. Nor indeed does the consequences of the introduction of the threshold in the first Scottish referendum on devolution, which led to the issue being completely unresolved in fact until the 1997 referendum finally settled it. The referendum did not have the effect that everybody wanted it to have of settling the devolution process.
Finally, my noble friend Lord Grocott has just described one absurd result where two people vote for and one against. I accept that that is an absurd result. But it is no more absurd than the result that would stem-I am sure he was not intending this-from the amendment proposed by the noble Lord, Lord Davies, where 32 per cent vote yes, 1 per cent vote no, and yet the referendum automatically, and without further debate in Parliament, falls. That would be at least as absurd a result as the one my noble friend Lord Grocott predicates.
I have rattled through an argument that deserves more probing and profundity, because the noble Lord, Lord Rooker, came out with a perfectly viable solution to these competing considerations. I was, therefore, very glad to hear that the noble Lord, Lord Davies, was not going to press his views to a vote. However, I think that the House should briefly be exposed to the case against these thresholds as well as the case for them, if only to reinforce itself in its wisdom.
At one stage I thought about abstaining on my noble friend Lord Rooker's amendment because of my dislike of thresholds, which for once in my entire time in the House of Lords would have affected the result. It is a good thing I did not, so phew. The House of Lords might consider the argument that I have briefly developed and decide that, in view of it, we made a wise decision earlier this afternoon, albeit narrowly.
My Lords, perhaps I may say a word about Amendment 14 in the name of my noble friend Lady Hayter of Kentish Town. Her amendment would provide that if there is not a majority in support of changing the electoral system,
"in any one of the four parts of the United Kingdom", the proposition should fall for the United Kingdom as a whole. I certainly hope that there is common ground around the House that we wish to strengthen the Union and bind the peoples of the four parts of the United Kingdom in one coherent political system and, as far as possible, in one political culture. It would be singularly unfortunate and divisive, were the referendum to be lost in one of the four parts-let us suppose, for example, that the people of Wales were to vote no but those of England, Scotland and Northern Ireland were to vote yes-if the people of England, Scotland and Northern Ireland were then to impose their preferred version of an electoral system on the people of Wales. I think that that would be divisive, traumatic and very unfortunate.
Is the noble Lord really saying that it would be divisive in those circumstances when it is clear that what would be much more divisive is that if one part of the United Kingdom was able to veto the clear majority of the decision of the rest of the United Kingdom? That is a complete nonsense.
The noble Lord sees things in a mirror glass world and he is entitled to look at them from that perspective. However, I invite him to consider what the impact on the sentiment would be in Wales if, having voted against the proposition that, say, the alternative vote system should be used, it was none the less to be imposed by the rest of the United Kingdom on the people of Wales. I think that that would create a grievance and that it would be an unhappy development. The amendment in the name of my noble friend is well worth the House meditating upon.
My Lords, we have had another interesting debate on, as the noble Lord, Lord Lipsey, indicated, the difference between the amendments we are discussing here and those which were debated earlier. I only wish that the strength of the argument deployed by the noble Lord against thresholds had been sufficient to persuade everyone to abstention, even if I was unable to do that, but that did not happen.
The manuscript amendment from the noble Lord, Lord Grocott, which would mean that 25 per cent of the electorate would have to vote yes is a reflection of the amendment in the name of the noble Lord, Lord Davies of Stamford, which seeks that 33 per cent of the electorate should vote yes. We then have a straightforward 50 per cent eligibility to vote proposed by the noble Lord, Lord Grocott, and the amendment in the name of the noble Baroness, Lady Hayter, which the noble Lord, Lord Howarth, spoke to, regarding the individual constituent parts of the United Kingdom. I acknowledge also that the noble Baroness, Lady Thornton, did not speak to the amendment in her name and that of the noble Lord, Lord Elystan-Morgan.
I think the arguments against thresholds were put very eloquently by the noble Lord, Lord Lipsey, and are a cogent argument as to why the threshold against turnout, particularly although exclusively, does not necessarily lead to fairness compared with a straight situation where people are invited to vote and the majority wins. But the proposals that relate to a threshold that the yes vote has to reach are particularly pernicious. Earlier the noble Lord, Lord Lipsey, referred to the 40 per cent threshold that was imposed on the Scotland and Wales referendums in 1979. The Welsh referendum did not arise because there was a very strong no vote, but although 64 per cent of the electorate turned out in Scotland and a majority voted in favour of devolution, it was not implemented for another 20 years. It did not settle the question. It left, as the noble Lord, Lord Rooker, said earlier, a bad taste. Of all thresholds, it does not satisfy the electorate and particularly those who campaign and those who would seek a yes vote.
The amendment that the noble Lord, Lord Howarth, spoke to on behalf of the noble Baroness, Lady Hayter, would seek a requirement of a majority vote in England, Scotland, Wales and Northern Ireland, rather than a simple majority of all votes taken together. This is a UK-wide referendum on what the electoral system should be to elect the House of Commons in the United Kingdom Parliament. I believe it transcends particular localities or regions. The pros and cons of the system will be debated and considered by people regardless of where they live.
In Committee, the noble Lord, Lord Lipsey, uttered words of caution against this kind of amendment. He said that,
"to seek to set one nation within that kingdom against another kingdom is neither desirable nor wise". [Hansard, 20/12/10; col. 827.]
The noble and learned Lord, Lord Falconer, rejected this type of amendment because,
"we should do everything to promote coherence in the United Kingdom. That means that, where we are voting on a national voting system, implementation of any referendum should be guided by what the national vote is".-[Hansard, 20/12/10; cols. 843-4.]
If we were to find, for the sake of argument, that the rest of the United Kingdom-Wales, Northern Ireland and England-had substantially voted in favour of a change yet Scotland had a narrow majority against, it would be unacceptable that that one country with a narrow majority against should effectively exercise a veto over all other parts of the United Kingdom.
Noble Lords who have spoken to their amendments have indicated that they are not going to press them given the vote that was taken earlier. On that basis, I ask the noble Lord, Lord Davies of Stamford, to withdraw his amendment.
My Lords, at an earlier stage on the Bill, I described this as the buckle that linked the AV bit of the Bill with the constituencies bit. It is a slightly peculiar buckle as the constituencies bit goes ahead even if AV does not because the referendum is lost, but AV cannot go ahead if the constituencies bit does not. I suppose that reflects the bargaining strength of the two sides during the coalition negotiations.
I do not see any great point in labouring this issue any more. The Government are not showing any great willingness to split the Bill, as some of us suggested from the first that they would be wise to do. All I would like to hear the Minister say is that this is a political deal and so has to stay. I do not even ask him to say that this is a sordid, low, political deal between two unequal partners which should never have taken place. I do not expect anything like that from the noble and learned Lord. If he would just say that this is a political deal and would the House kindly accept it on that basis, I shall do so and withdraw my amendment.
My Lords, my name is on this amendment as well. To slightly increase the excruciation for the noble and learned Lord, it is impossible to understand what the basis of the conditionality is. Assume that 99 per cent of the population were to vote in favour of changing the system to AV, even if something happened to prevent the Boundary Commission changes being introduced, then, as I understand the Government's position, they will not introduce AV. Why is that? What is the logic? The only logic must be some sort of political deal. Honesty would help the noble and learned Lord a lot.
My Lords, these amendments, as the noble Lord, Lord Lipsey, has indicated, seek to undermine, even remove, the link between the commencement arrangements for the AV and for the constituencies part of the Bill. Anyone who has ever been a political realist would recognise that in terms of a coalition one part of the Bill-the first part-had greater salience and resonance with the Liberal Democrats, and the same applied to the Conservative Party when it comes to Part 2. I believe in equality of votes across the United Kingdom and I have not had difficulty, therefore, in arguing that case.
The issue of linkage has been one which we have debated from the outset. The noble Baroness, Lady McDonagh, raised an issue about it as we started Committee stage and withdrew her amendment, and the parties and the coalition Government have made it very clear that these two parts are linked. The question has been raised-it was hinted at by the noble Lord, Lord Lipsey-as to why, if the referendum does not produce as successful an outcome as the Liberal Democrats would wish to see, we are tied in, as it were, with the boundary change. Quite apart from the fact that, as I have already indicated, there is something right in principle about trying to seek greater equality among constituencies, as a liberal and a democrat I would find it very difficult to say, if the people had expressed their view in a referendum and said no, that somehow or other we should try and thwart another part of this Bill which is linked.
There is nothing wrong in parties entering into an agreement that they then make their best endeavours to deliver; in fact it is honourable and perfectly proper. I believe both parts of this Bill hang together and are linked. They give the people a say as to whether they want to change the way in which the House of Commons is elected while also ensuring that the House of Commons is elected, be it on first past the post or on the alternative vote, in constituencies that are much nearer to being equal.
On that basis I would invite the noble Lord, Lord Lipsey, to withdraw his amendment.
As the Minister was making his remarks the unworthy thought occurred to me that perhaps we should have a referendum on the constituency changes. You would get a jolly good turnout in Cornwall and people in the Isle of Wight would be flocking to the polls with those from Brecon and Radnor and Anglesey, all to say no to this. Then the Minister would be able to say, "As the British people have spoken, I cannot force this down their throats". That perhaps is a little too much. The boundary changes will no doubt, if agreed by this House and by Parliament, go ahead at the end of the day. There seems little point in pushing the matter any further and I therefore beg to withdraw my amendment.
Amendment 13 withdrawn.
My Lords, this amendment removes the power in Clause 8(4) to make a transitional or saving provision when implementing the AV provisions through an order made under Clause 8(1). Instead, it inserts the provision that any order made under Clause 8(1) will not affect any election held before the first parliamentary election following that day.
The Government have brought forward this amendment in response to the recommendation of the Delegated Powers and Regulatory Reform Committee that the power in Clause 8(4) should be subject to the negative procedure. This was on the grounds that,
"the power to include transitional and saving provision may determine which form of voting system is to apply in the case of a particular parliamentary election. That is a significant power, which ought to be subject to Parliamentary control".
This Government attach great importance to the views of this and other Select Committees, and we have reflected carefully on the committee's recommendations. As my noble and learned friend Lord Wallace indicated in Committee, we had envisaged that in the event of a yes vote in the referendum, this power might be used to provide that any parliamentary by-elections held between the commencement of the AV provisions and the subsequent general election would take place under the existing first past the post system. That is because the Government take the view that it would not be appropriate in the intervening period between the commencement of these provisions and the subsequent general election for by-elections to take place under the AV system, since that would have the result that the House of Commons would contain Members elected under two different electoral systems.
The Government are content to accept the committee's conclusion that the issue of the powers in Clause 8(4) should be addressed. However, the effect of applying parliamentary procedure to the powers proposed would run contrary to the Government's stated intention that the referendum on the voting system should be binding. Moreover, this House has already expressed its view on this issue by voting on the first day in Committee against an amendment to make the referendum indicative. In order to meet the Committee's concern, the Government have instead brought forward this amendment, which removes the powers in Clause 8(4) and instead makes the position on by-elections held in the period between the AV provision coming into force and the first parliamentary election on AV clear in the Bill. This provision goes further than the committee's recommendation by making the Government's intentions absolutely clear in the Bill. On reflection, we think this is preferable to leaving the issue to future secondary legislation, which would be the effect of following the committee's recommendation. I beg to move this amendment, and I hope that the House will support it.
I welcome the noble Lord, Lord McNally, back to front-line service on this exciting Bill. We have missed him a lot in every single respect. He has explained that very-
Since this is my only opportunity, I thank those on the Labour Benches for sending me a bouquet of cut flowers. After MI5 had dismantled it, it was put in a vase in my room.
And did they find what we hid in it? We genuinely welcome the noble Lord back. He is very popular on our Benches. He has explained this very clearly. We have no problem with it. We think the critical point that he is making is that by-elections after the passage of the Order in Council that brings the boundary changes into effect, which is the last stage in bringing in AV after a yes vote, will not be conducted under AV until after the first general election is conducted after AV. We have no problem with that.
Amendment 16A agreed.
Moved by Lord Howarth of Newport
16B: Clause 9, page 6, line 40, leave out from "preference" to end of line 41
My Lords, Amendments 16B, 16C, 16E and 16F are intended to substitute for the optional preference AV system the obligatory preference AV system. We touched upon this issue in an earlier debate, and on the first day in Committee my noble friend Lord Campbell-Savours spoke very powerfully indeed on this topic. I none the less ask your Lordships' indulgence to permit me to say a very few words about this because it is an issue of prime importance in this Bill.
My amendments, if they are technically valid, would replace the Queensland system, which is what the Government are proposing in the Bill, with the Australian federal system, and there is a very important difference. If you are voting in an Australian federal election to the Australian House of Representatives, you are required to vote for all the candidates on the ballot paper in the order of your preference. If you fail to do so, your vote is invalid. In the optional preference version of AV that applies in Queensland, you do not need to vote in order of preference for all the candidates; you may, if you prefer, vote for only one candidate. It is quite instructive to see what has happened in Australia over the years. The system that now operates in Queensland was introduced in 1992. Initially, when that was done, very few voters failed to express all their preferences in rank order, as had been their tradition-only about 20 per cent, initially. However, as time went by, more and more of them realised that they did not need to cast all these preference votes and they stopped doing so in very considerable numbers.
The turning point came in 2001, as my noble friend Lord Campbell-Savours told the House in Committee, when the Australian Labor Party ran a "just one vote" campaign, because it had realised that it was more likely to be in the interests of their candidates that they should discourage people from exercising all the preferences that they might. To concentrate all their votes on one candidate is termed "plumping", a term originally coined in 19th century England when elections to school boards were introduced. Under that system, an elector was permitted to exercise perhaps 20 votes-a vote for every member of the school board-but they were allowed to cast all their votes for the same candidate. The object of that provision was to try to ensure that representatives of Christian minorities were represented on school boards. However, what actually happened in practice, very interestingly, was that it was organised that people would plump or concentrate their votes in support of women candidates, because it was felt to be desirable that women should serve on school boards. That plumping was very beneficial to the feminist cause in the 1880s and thereabouts. The term has been borrowed in Queensland.
The result of the practice of plumping in Queensland, as we are told by the academic authority of Messrs Rallings and Thrasher from the University of Plymouth, is that in 2009, 63 per cent of those who turned out at the state elections in Queensland voted for just one candidate-and, in some constituencies, the proportion was as high as 73 per cent. Even when the political parties urged their supporters to use their preference votes in the manner associated with AV, they did so decreasingly. For example, the Greens urged their voters to exercise all preference votes, and to exercise their second preference in support of Labor, but very large numbers-46 per cent-of those who gave their first preference to the Greens did not do so but made no other choice. We have seen the same effect in the London mayoral elections, where there is a modified version of AV in the supplementary vote system. A significant percentage-perhaps one in five voters-vote for only one candidate.
I am not a supporter of AV, but if the proponents of AV want to see the benefits that they profess that AV would confirm, I suggest that they would do better to have the proper AV system-the obligatory preference system-rather than the one that is being proposed in this Bill. If we have only optional preference voting under AV in this country, it will rapidly turn into a pretty close replica of the first past the post system. People will scratch their heads and ask why on earth they have been through all this palaver, why we have had a referendum, and why-if they did so-they have voted for an alternative vote system that turns out to be remarkably similar to the first past the post system that they have rejected. This needs very careful thought, and it is not too late for the Government to give it that thought. I beg to move.
My Lords, the amendment moved by the noble Lord, Lord Howarth of Newport, would provide that, under the alternative vote system, voters would be required to express a preference for every candidate standing at the election. As he indicated in moving his amendment, we had some debate on a related issue earlier in the evening. In the Bill as drafted, by contrast, voters may express a preference for as few or as many candidates as they wish-indeed, as the noble Lord, Lord Foulkes, observed, even just for one. We believe that this approach gives maximum choice to voters. We would not support a system where voters were required to express preferences for all the candidates standing at the election.
In Committee, my noble friend the Leader of the House explained that the Government believe that the optional preferential form of the alternative vote system is the right form of AV to be put before the people. There is a genuine issue here and a genuine debate, but we believe that for elections to the other place, if voters are to be able to express preferences, it is only right that they should be able to express as many or as few preferences as they choose; their ability to limit their preferences should not be constrained in the way that the noble Lord suggests.
Furthermore, the optional preferential form of the alternative vote avoids putting voters in the position where they are obliged to vote positively and to give a preference for political parties that may be wholly distasteful to them, such as those on the extremes of politics. Indeed, it is not impossible that people might be dissuaded from casting a vote at all if they felt that they had to go to the ballot box and put a number beside a party that they found extremely abhorrent. That would be the opposite of what those who support the alternative vote would say is the aim of using it as the system for electing Members to the House of Commons.
The noble Lord, Lord Howarth, mentioned Australia. In those elections where a compulsory form of AV is used, voters must indicate an order of preference for every candidate on the ballot paper, as he described, in order for their vote to be valid at all. The noble Lord's amendment does not specify what would happen if a voter did not express a preference for all candidates. Would that vote be declared invalid? It is not clear what would happen in those circumstances. There is a danger, of course, that it could risk disfranchising voters who did not wish to express a preference for all candidates standing at the election. Against that background, I urge the noble Lord to withdraw the amendment.
I am reluctant, but I cannot resist this, because of what happened in Committee. The noble and learned Lord has just deployed the case against the compulsory system and I agree with him on that, but is it the case that when the AV system in the Bill, the optional system, comes to be deployed, the Deputy Prime Minister will not be able to cite a single other democratic country where it is used to elect the national parliament-not one? Have I got that right? I have missed something in the debate otherwise. In other words, we are saying that it is better than the compulsory preference system, but nobody uses it to elect a national parliament. All the examples given tonight-and the provincial elections in Canada can be used as well-are for state parliaments and state Governments in Australia, not for the national Parliament. The national House in Australia, of course, has the compulsory preference system. This optional AV system is not used anywhere else in the world, but that is what is going to be offered to the British people. Have I got that right?
The simple answer is that I do not know and I would not want to confirm something that I do not know.
The noble Lord, Lord Campbell-Savours, says from a sedentary position that it is right. Be that as it may, the noble Lord, Lord Rooker, prefaced his remarks by saying that he did not support the compulsory system and preferred the optional preferential system. If we believe that that is a better system than the compulsory system, I think that that is what we should stick with. If it is the case that there is not another national legislature that does it, so be it-we are devising a system for the House of Commons.
My Lords, I think that it is clearly implicit in my amendments that, if people did not use all their preferences, their vote would be invalid, as is the case in federal elections in Australia. The noble and learned Lord rejects what I suggest; be it on his own head. If Ministers in the Government wish to make a botch of their attempt at electoral reform, so be it. I beg leave to withdraw the amendment.
Amendment 16B withdrawn.
Amendments 16C to 16H not moved.