Parliamentary Voting System and Constituencies Bill — Consideration of Commons Reasons and Amendments

– in the House of Lords at 11:36 am on 16th February 2011.

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Votes in this debate

  • Division number 1
  • Division number 2
    A majority of Members of the House of Lords voted against allowing geographical considerations or local ties to justify greater variation from the mean number of electors in a parliamentary constituency.

Motion A

Moved by Lord Wallace of Tankerness

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

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

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) 11:37 am, 16th February 2011

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

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

Noble Lords:

You voted for it.

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

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

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

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

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

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

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

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

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

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

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour 11:45 am, 16th February 2011

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

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 am not sure whether the noble Lord is advocating that kind of threshold.

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

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

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

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

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

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

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

Amendment A1 to Motion A

Moved by Lord Rooker

As an amendment to Motion A, leave out from "House" to end and insert "do insist on its Amendments 1 and 8".

Photo of Lord Rooker Lord Rooker Labour

My Lords,I do not propose to rehearse the arguments again, although I thank the Minister most sincerely, because that is the first time that anybody has ever officially explained what my amendments to the Bill do. In the Political and Constitutional Reform Select Committee in the other place, nobody challenged the point. What the Minister has said also contradicts this morning's Times leader, which is completely inaccurate. Frankly, that contradicts the reasons that we have been sent from the Commons. The Commons say:

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

That is simply not true as a reason. I have said all along that if the turnout was less than 40 per cent, the House could decide to implement AV, and I would not argue with that.

I am seeking support for the request that the Commons have another short look at the issue. Yesterday, the Commons turned up for half a day's work on this Bill, to add to the seven days they have already done on it-somewhat less than this House has done. The debate on my amendment to the Bill lasted 45 minutes, most of which was taken up by the Minister who was almost seeking to talk it out-

Noble Lords:

Oh!

Photo of Lord Rooker Lord Rooker Labour

One can look at Hansard-the estimated time is about 14 minutes of debate. That was the first time the Commons have debated this issue. This is not the issue that they debated last November, of a "killer, fatal threshold", although those are words I would refrain from using as that is not what it is.

The Minister's comments about the electoral register, notwithstanding the debates that we have had, show that we are in a complete and utter mess as a democratic country if we cannot say that we have a national register that measures the electorate for a particular ballot. That is one criticism of my amendment to the Bill, because we do not know what the electorate is. The electoral register includes foreigners, who may vote in some elections but not others, the dead and those who have moved home or who own a second home. The fact that we have no national electoral register prevents any serious discussion about the mechanism of our democracy. That has been thrown into a starker light than it ever was before. However, I do not want to go down that road, as I want to be quite brief.

I submit that the issue of substance lies not in the figure of 40 per cent-that could have been any other figure that was thought to be reasonable, whatever people might have said-but in whether the referendum should be binding, without any constraint whatever. We have never done this before in this country, and a precedent is being set. That is the point that I am seeking to make with my amendment to the Bill-not to argue against the result of the AV referendum one way or the other. The serious problem is that we are creating a major precedent in our constitutional arrangements, which the other place has not addressed. That is why I ask, even at this late stage, for the Bill to be sent back so that the other place can address this issue to the degree that it should.

I am not against reform of our constitutional arrangements, but such reform is likely to be sustainable if there is a degree of consensus. With proper debate-White Papers, Green Papers, Joint Committees-we get a consensus about these things and we test the ideas. That has not been done in the case of the proposed binding referendum, the legislation for which would be in place to be activated, whatever the result and whatever the turnout. However, that consensus has not been achieved, although I know there has been cross-party voting, including last night-the Minister declined to mention that several Tory MPs voted for my amendment to the Bill, but I will not make a major point about that.

My point is that, as I face the Chamber, the two oldest political parties in the country are joining together to rewrite our constitution on a daily, as-you-go-by basis. In other words, we do not know what is happening next. This cannot be the right way to operate; it cannot be the right way in which to bring in a major constitutional change of the first ever binding referendum in the UK. There is no big picture by which we may judge this part of the constitutional changes-we know that there are others on the conveyor belt-and that is a major difficulty.

My amendments to the Bill were made in the spirit of compromise. Frankly, they say that the referendum shall be binding if more than 40 per cent turn up, and that is a compromise on my part. I do not think that a binding referendum ought to operate in a parliamentary democracy. The Minister said yesterday, in the context of the Isle of Wight issue, that it is not the opinion of this House that counts, but the strength of the opinion of this House that counts. I accept that, on the Minister's test, the majority of one may be a bit shaky, but I have to say that that was on a 40 per cent-plus turnout of this House. While the level of the majority may not meet the Minister's test, it certainly meets the test that we are actually voting for. I seek to move to strengthen the opinion of this House so that that can be taken on board.

There is plenty of time, but I know that a lot of time will not be spent on it. When history comes to be written and when this issue operates out there among the public, the question may be asked, subject to the result, "What on earth was Parliament doing?". I want to be able to say that we used all the time available to test this issue to get them to think again. Today is an opportunity to do that. I beg to move.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

My Lords, listening to the noble Lord, Lord Rooker, I am reminded irresistibly of the last occasion when we had before us a major constitutional Bill. I refer, of course, to the stages leading up to the passage of the Constitutional Reform Act 2005. There were then two main issues on ping-pong, just as-leaving aside the Isle of Wight issue-there are two main issues today. The first of the two main issues in 2005 was whether the Lord Chancellor should continue to be a Member of this House; the second was whether the Lord Chancellor should be required to be a lawyer. It was a Lords Bill, which of course this Bill is not. The first time round, the Government lost on those two issues by a substantial margin. The majority against the Government was 215 to 199. When the Bill came back from the Commons, the Lord Chancellor speaking on behalf of the Government said:

"Of course our power is to make the other place think again. They have thought again... Our job is to make the other place think again. Once we are satisfied that they have done so, then we should pay proper regard to their views".-[Hansard, 21/3/05; col. 38.]

The question that I ask the noble and learned Lord, Lord Falconer, is whether he still abides by the principle that he stated so clearly on that occasion. They were the very last words that he uttered after a very long, drawn-out affair, which he will remember as well as I do, but they were the words that carried the day on that occasion. The Government won by 203 votes to 191.

The question I then ask is whether that principle should not be applied today. It seems to me that the case for applying that principle today is far stronger than it was when the noble and learned Lord, Lord Falconer, stated it, for on that occasion the Bill affected this House. It affected it because it would have abolished the office of Lord Chancellor-had that proved to be possible, which it did not-and ejected from this House the Law Lords, where they had been for 150 years or more. Nevertheless, on that occasion this House yielded to the other place. On this occasion, by contrast, the Bill seems to relate almost exclusively to the other place, not to us. Surely, if ever there was a Bill on which we ought to yield to the elected House, seeing as it relates to election to that House, it is this one. When the time comes, I shall therefore vote with the Government.

Photo of Lord Lawson of Blaby Lord Lawson of Blaby Conservative 12:00 pm, 16th February 2011

My Lords, on this occasion I am unable to support my noble and noble and learned friends and I find myself, after an intermission of something like 35 years, when we were in another place, in alliance with the noble Lord, Lord Rooker. I agree entirely with everything that he had to say, which means that I shall not need to detain this House long. I realise that the House has been debating this Bill for a very long time-far too long-so I shall do my best to be brief.

I do not agree with the noble and learned Lord who has just spoken, for a number of reasons. We are perfectly entitled to ask the House of Commons to think again and look at this further. After all, it had a threshold amendment at an earlier stage in its proceedings and the majority against the threshold shrank from well over 500 to 70, so things are moving in the right direction. It may be that with a little more momentum there the right result will be obtained.

There is another point which I have to tell the noble and learned Lord, Lord Lloyd. He seemed to say that this is not a matter for this House. We are talking, certainly on the AV issue, about what my right honourable friend the Deputy Prime Minister has said is a potential constitutional change of the first importance. If this House does not have a role as the watchdog of the constitution, it has no role at all. I cannot possibly accept the argument made by the noble and learned Lord, Lord Lloyd.

I was also disappointed if not, if I may say so, slightly shocked by the poverty of the argument presented by my noble and learned friend the Minister, which boiled down to two issues. First, if I understood him aright, it seemed to me that he was concerned that the consequence of the amendment moved by the noble Lord, Lord Rooker, might be, "If you don't know, stay at home". I think that was what he said. He seemed to think that was terrible but if you do not know, what should you do? You cannot go and vote, "don't know"; there is not an option on the referendum ballot, as far as I am aware. We have not exactly been told that but if there is a "don't know" option, it is a different matter. Perhaps my noble and learned friend can tell us but I do not think there is. So, is it: "If you don't know, toss a coin"? I listened attentively to my noble and learned friend's speech because I was hoping to find something in it but I could not.

Secondly, the only other argument that my noble and learned friend used was that the very idea of a threshold was improper and an insult to democracy. In pretty much every other country in the world, notably the United States, when there is a major constitutional change there are special provisions. You cannot just get anything through on a majority of one, however low the turnout and whatever the conditions. Special provisions are always put in for major constitutional changes to set a higher hurdle, as there should be when the constitution is being fundamentally changed. Is the Minister saying that the United States is somehow not a proper democracy-that its arrangements are somehow improper and insulting? I will not enumerate all the other countries; my noble friend Lord Lamont did so in an excellent intervention in Committee, citing all the examples.

I make two final points. First, the Government implicitly accept that there needs to be a high turnout. That is why they decided to hold the referendum on the same day as the local elections. We know that it was not to save a few million pounds; it is because they believe that it will ensure a higher turnout. They are right and that is proper. This amendment helps the Government. It is in the same spirit as what the Government are doing by trying to ensure that there is a high turnout.

Secondly and finally, I say to those of my noble friends who are uncertain as to whether the amendment goes against the coalition agreement: the constitutional status of the coalition agreement is somewhat obscure. Nevertheless, one should always play safe. I have studied the coalition agreement very carefully and spoken to some of my right honourable friends in the other place. It is clear that the amendment of the noble Lord, Lord Rooker, in no way contravenes the coalition agreement. Therefore, I hope that this House will have the backbone to tell the other place that this is something of major constitutional importance; and that this House, as the watchdog of the constitution, would like the other place to look at this again.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I want to ask the Minister a very basic question, to which not only I but possibly other Peers do not know the answer: are we allowed to vote in the AV referendum?

Noble Lords:

Yes.

Photo of Lord Higgins Lord Higgins Conservative

My Lords, I have not previously intervened in the debates on this Bill, although I have voted several times-in, I feel bound to say, both directions. I begin by making a procedural point. One of the most damaging things done by the previous Labour Government was to change the situation with regard to guillotining Bills. The old procedure was always that if the Government felt that there was undue delay or something was urgent, there would be a guillotine Motion debate for half a day and a vote at the end of it. This was replaced by programming, which was carried out throughout the previous Labour Government. Regrettably, it is continuing under the coalition, with the result that we will no doubt continue to have Bills arrive in this place with some parts having been very quickly considered. I very much hope that the Government will abandon programming from now on.

The reality is that the programming on this Bill has meant that debate in the other place has been severely curtailed, not least in respect of the amendments made by this House. The amendments that we are discussing today were given four hours of debate, and on this important constitutional amendment the debate lasted for 45 minutes or rather less. It is difficult to see how the other place can consider our amendments and think again in the course of a debate of that length. The fact that the other place has sent the measure back here needs to be considered in that context.

I turn to the substance of the amendment of the noble Lord, Lord Rooker, which I enthusiastically support. My view throughout my time in the House of Commons-this remains my view-is that Members of the Commons are there as representatives, not delegates. As I said to my former constituents many times, that means that I will not vote as I would vote if I knew how a majority of my constituents would vote. I will consider their views and take them into account and then I will vote having taken all that into account. A referendum strikes fundamentally at that principle. Therefore, I have always been opposed to referendums but, as the noble Lord, Lord Rooker, points out, they have always been advisory. Therefore, I am totally opposed to the idea not of an indicative referendum but of a mandatory referendum, which is what we have been considering.

I strongly supported the noble Lord, Lord Rooker, and voted in favour of his amendment in which he made the basic point that the referendum should not be mandatory. Alas, that amendment was not carried. However, as he rightly points out, the amendment he is now putting forward constitutes a compromise. Although I am totally against a mandatory referendum altogether, I certainly enthusiastically support the noble Lord's amendment. I very much hope that your Lordships will return it to another place with a large majority. Once one has considered these issues, it seems to me that the case for having a threshold is very strong indeed.

In the very short debate that took place in another place, Mr Winnick intervened in the Minister's speech. He asked:

"At what point below 40%-10%, 15%, or 20%-would the Government conclude that the result did not carry any credibility whatever?".-[Hansard, Commons, 15/2/11; col. 902.]

That is the situation. We have no idea what the turnout may be, but it may be very low indeed. We may have a very small majority on a very low turnout. We will then find that the law is changed automatically on a major constitutional point without any reference back to the House of Commons whatever. I believe that that is completely and totally wrong. I shall support the noble Lord in the Division Lobbies.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, initially, I was inclined to support the amendment of the noble Lord, Lord Rooker. However, as time has gone by, I have to confess that my view has changed. I say at once that the arguments are evenly balanced-I think that many noble Lords agree with that. The noble and learned Lord, Lord Lloyd of Berwick, could have added to the strength of his already strong case by referring to the fact that the alternative vote referendum was a major plank of the manifestos of both the Liberal Democrat and Labour Parties at the recent general election.

I come back to the issue of a deterrent to voting at the forthcoming referendum, assuming that we get this Bill through. I disagree with the noble Lord, Lord Lawson; my understanding is that if we accept the amendment of the noble Lord, Lord Rooker, the probability, rather than the possibility, is that it could inadvertently act as a deterrent and a disincentive to vote. It is true to say that at many of the forthcoming local elections there will not be a 40 per cent turnout. There is no suggestion that local government comes to a halt if 40 per cent of the electorate do not turn out to vote for anybody. Indeed, the noble Lord, Lord Rooker, said that more than 40 per cent of this House voted for his amendment the first time round. But how many votes in this House reach the 40 per cent figure? What would happen if his amendment were passed and the referendum turnout was 39 per cent, with two-thirds of that 39 per cent being in favour of AV? What would then happen if the measure were to come back to this place? Noble Lords may say they can improve it, but you may not get even a 40 per cent turnout in this House.

What do the public think about a situation where we say, "We sort of trust you. This is, sort of, the decision which the public should make. But in the end, if 40 per cent of you don't turn out, we will decide".? There will not be a lot of understanding of that by the public, especially given that there is no more partisan issue imaginable than that of the voting system.

Noble Lords:

Oh!

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

Absolutely. I am perfectly willing to accept the decision of the British people, whatever that is and whatever the turnout is. I really do not understand how you can, if you like, push the partisanship completely out of account by saying that if there is not a 40 per cent turnout, we will decide. At this forthcoming referendum, the majority of the Conservative Party will be against AV; and although it was in its referendum, I sense that the Labour Party will be against it. Partisanship will rule.

Photo of Lord Myners Lord Myners Labour

The noble Lord spoke about the referendum of the Labour Party, but I think he meant the manifesto. Perhaps I may correct him; he described AV as being a major plank of the Liberal Democrat manifesto. In fact it was not. AV was described by the leader of the noble Lord's party as a "miserable little compromise".

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My honourable friend Mr Clegg may call it what he likes.

Noble Lords:

Oh!

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

It was a major plank in the Liberal Democrat manifesto and that is a fact. And so-

Noble Lords:

More!

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

No; no more. That is quite enough. For those reasons, I will vote against the amendment of the noble Lord, Lord Rooker.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, speaks from the very heart of reason and common sense when he says that the real role of this House, in a situation such as this, is to invite the House of Commons to think again. That, however, does not mean that that should happen only once. In the circumstances of this case, as has been so clearly shown by the noble Lord, Lord Lawson, the House of Commons has thought twice about the matter and come to totally different conclusions-although in both cases it happened to reject the proposition that we are discussing. In the first instance, the other place voted by 540 votes against and 31 votes for a threshold in the referendum. Last night, the vote against was carried by about 65 per cent to 70 per cent. The curve is clearly pointing in one direction. But be that as it may, one cannot say that the other place is expressing a consistent and monolithic view on the matter. That does not in any way defeat what the noble and learned Lord, Lord Lloyd, is saying, but to some extent it qualifies it in the special circumstances of this case.

One can summarise the issue in this way. We are dealing here, I think, with a balance of risks. The noble and learned Lord, Lord Wallace, is perfectly correct to say that when you invite the public to partake directly in a decision such as this, there is a risk that Parliament could be seen-in some way or other, without intending it-to be spurning that decision. That is a real risk. No one spoke very much about that risk in 1975 when the referendum was indicative or consultative. I have read the Act and there is clearly no suggestion that that referendum would have been mandatory in any way at all.

I urge noble Lords to consider another risk. A derisory turnout would deprive this vote of any sovereignty or realism as an arbitrement of the people. That is a massive risk. It is very unlikely to happen. It does not matter a great deal which of these proposals one chooses; I tabled one myself which might not have been quite as meritorious as the one now before the House. They are insurances against a failure that is unlikely to happen, but which could happen. A person insures his health against fire not because he knows that it is going to be destroyed-unless he has criminal intentions-or because he believes that it is likely to be destroyed. He does so because he considers that there is a slight chance that it could be destroyed. The more one thinks about something, the less likely one is to be prepared to take even the slightest risk. I am sure that that is our attitude to the families we love. Here the risk is small, but it can be covered by a small, modest and reasonable premium.

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative

My Lords, I voted for the amendment of the noble Lord, Lord Rooker, the first time, and I intend to vote for it again today. It is true that there was a significant majority in the Commons yesterday, but the result disguised the fact that 20 Conservatives voted for the amendment and 25 abstained. The large majority was accounted for to a considerable extent by the nationalists voting in support of the Government.

I was shocked by the brevity and paucity of the debate. Very few Back-Benchers were able to get in. One point that was made-as it was in this House-was that we have not had thresholds in referendums before, with the exception of the first referendum on Scottish devolution. Of course, we have had very few referendums in this country. Although the first was as long ago as the first referendum on Scottish devolution, they are still something of an innovation. I was struck by the argument made by one Conservative Back-Bencher yesterday that perhaps there should always be a threshold in constitutional referendums, as there is in so many countries of the world. My noble friend Lord Strathclyde mentioned that France does not have this threshold, but it is about the only country in Europe that does not. All other major countries do and, as my noble friend Lord Lawson said, the United States has a different sort of threshold via representatives and state legislatures.

The Minister in the Commons-and my noble and learned friend today-said that a threshold would give people an incentive to vote no. First, that cannot be asserted with absolute clarity. One can argue it both ways. A threshold gives a very positive incentive for people to vote yes if they are worried about the turnout. Secondly, somebody who is really against the proposition would have to worry that the threshold might be met; he would have to know what the turnout would have to be if he was really certain about the situation.

Leaving that aside, it is not unjustified or unfair that if there is great apathy, the proposition should fall. That seems common sense and reasonable. The proposition has been put a number of times that there might be a 38:1 vote that falls just short of the 40 per cent threshold. In Germany, there was a referendum with a majority of 10:1, but because the turnout was only 10 per cent the proposition was rejected-and quite right, too. Constitutional change affects us all; it lays down the rules of the game by which politics is conducted and by which we representatives live; and it should be made only when it is clearly the wish of the people that it should happen. There are great dangers in making major constitutional changes which have uncertain consequences. People who are in favour of AV argue that its effects would be this or that, but the truth is that what would happen is highly unpredictable. I do not believe that we should take this leap into the dark unless there is a proven desire for change supported by the British people giving it their full-hearted consent.

Photo of Lord Tyler Lord Tyler Liberal Democrat

My Lords, I am not sure whether the noble and learned Lord, Lord Falconer, intends to speak on this. I hope that he does because it would be very important for your Lordships' House to hear precisely what the attitude of Her Majesty's Opposition is. He and I have enjoyed each other's company over many long hours throughout the passage of this Bill. I am not going to give him my views but I should like him to comment on the views of his colleagues. In the other place, Mr Christopher Bryant said:

"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.]

There is nothing there about indicative referendums or definitive referendums but all referendums or referenda. I am disappointed not to see the noble Lord, Lord Lipsey, in his place, because all of us who attended the long hours of Committee and Report very much respect the work that he has done on the Bill. He said just last week on Report,

"I do not support a threshold", and, again, there is no definition of what the threshold might be. He went on to say:

"Thresholds are arbitrary, they introduce bias, they distort debate and they have absurd consequences".-[Hansard, 7/2/11; col. 106.]

Amen to every single one of those. He then argued his point in detail. I very much hope that if the noble and learned Lord, Lord Falconer of Thoroton, is going to respond to this debate, he will explain why he completely disagrees with his noble friend Lord Lipsey, who, as I think he will agree, has studied this Bill more than any of us.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I do not wish to detain the House but I agree with every word that the noble Lord, Lord Rooker, said. I do not think that in all the years we have engaged in exchanges I have ever been able to say that before, but I certainly agree with him now. He offers a warning to this House. I am not sure whether noble Lords will have had a chance to read the debate in the House of Commons. The Minister's speech was extraordinary because it did not address the substance of the amendment before him. It addressed the idea of having a drop-dead threshold. In fact, he made exactly the same speech as Mr Bill Cash made on his own amendment, which would have introduced a 40 per cent cut-off point. If it did not reach 40 per cent, that would be the end of it.

With reference to the noble and learned Lord, Lord Lloyd of Berwick, I am very conscious that I am not elected and therefore I do not want to challenge the elected House, the House of Commons. However, this amendment has the effect of leaving it to the House of Commons to decide, and therefore it is very difficult to say that this House should not cajole the other House into putting itself in the driving seat on a major constitutional change.

I find it very difficult to understand why my coalition colleagues have not accepted this amendment. I shall not embarrass them by naming them but they have suggested to me that this is because of the coalition agreement. My noble friends Lord Lawson and Lord Lamont have dealt with that point. This amendment does not in any way threaten the coalition agreement, and I think we have had confirmation from the Front Bench that an amendment of this kind is not contrary to the coalition agreement. When I raised this matter with senior colleagues, they said, "Yes, it's not in the agreement but it's what we have agreed with the Liberals". If we are to have agreements, they have to be transparent, and if our parliamentary democracy is to function, people need to know what agreements have been made behind closed doors and they need to look at the arguments.

I asked another senior Liberal strategist-again, I shall not name them in order to avoid embarrassing them-what they thought the turnout might be in London, where there are no elections. All the pressure on the Bill has been focused on having the referendum at the same time as the Scottish parliamentary elections and the local government elections, and I think that that is a bit dodgy. It is an attempt to try to get a higher turnout. That suggests to me that people are worried about the turnout. As my noble friend Lord Lawson said, if you do not know what you think about something complicated, the wise advice is not to participate in it-not to express a view. We are 10 weeks away from this referendum. Have we seen any of the arguments? Do we believe that the electorate have had a chance to consider all the arguments, or that that is likely to happen with Easter intervening?

I return to the view that was expressed by this senior Liberal strategist. He said, "Do you know what the turnout in London might be? It could be 15 to 20 per cent". That could result-on a turnout of 15 to 20 per cent-in a major constitutional change being made without any consideration of its impact by the House of Commons. Perhaps turnout will be higher in Scotland. I am fed up with people complaining to me about how Scotland gets this benefit and that benefit and that the Scots have too much influence. However, it does not seem very sensible to me to have a referendum where you might have a differential turnout. The noble Lord, Lord Phillips, says, "Of course we all encourage people to turn out". Why do we encourage people to turn out in elections? We do so because we understand that consent is crucial to the political process. I do not believe that a turnout of 15 to 20 per cent-although the strategist might be wrong-will carry consent.

If my noble friend Lord Phillips of Sudbury is talking about restoring trust in the electorate and how the electorate might feel that it was absolutely ridiculous if the turnout were low and the matter had to go back to the House of Commons, I would say to him that this is the same electorate that saw a general election campaign in which, as the noble Lord opposite pointed out, the Liberals as well as the Conservatives campaigned against AV. So if you are not into electoral systems and the minutiae of politics, and I think that most people are not, you might find it a bit bewildering that, within months of a general election, you are being asked to vote in the opposite way from what was suggested by the two coalition parties, and that you are being asked to decide on it in a matter of weeks.

This is a very important and perfectly sensible amendment and I am utterly bewildered as to why it has not been accepted. Actually I know why, because I talk to my friends in the House of Commons. There was a time when there were no guillotines on constitutional Bills, but this Bill-my goodness me-has been timetabled very vigorously. There was also a time when we did not have two or three-line Whips on constitutional business. However, as my noble friend pointed out, among those who voted in the other place, there were 25 abstentions and 20 Conservative MPs voting against. Many of those who went through the Lobby "out of loyalty" did so because they were being whipped. They are now ringing us up and saying, "For goodness' sake, save us in the House of Lords". It is a pretty pass when the democratically elected Chamber has to rely on this Chamber. I think that that is the answer to the noble and learned Lord, Lord Lloyd of Berwick. I shall therefore vote for the amendment. I do so with a heavy heart, because I think that the other place should take more account of the arguments and that the Executive should be more accountable. That is the major problem that we have in our country.

Photo of Lord Kilclooney Lord Kilclooney Crossbench 12:30 pm, 16th February 2011

My Lords, I have watched the Bill's progress over the past few weeks with increasing concern because of the way in which matters affecting the constitution of the United Kingdom are being dealt with by the present coalition Government. We read criticism of the Opposition, and quite rightly so, and of their lengthy and sometimes very boring speeches in this House. But I can understand why they did that-because when we look at the Conservative Benches, we find bony-faced silence on their faces, and when we look at the Liberal Benches, we find faces of total embarrassment.

This is a major constitutional issue and it should not be dealt with in the way in which it is being dealt with by the Government at the moment. Why is it happening? It is because they have this coalition agreement. We now have the first example of that coalition agreement. It means that Parliament does not give proper consideration to the issues before it. There is criticism of the other place for not giving enough time to this debate. A lot of time was given to the subject in our House, but there was very little participation by the government Benches-the coalition Benches. There was not proper debate in this House either.

I am increasingly concerned at the way in which this subject is being dealt with. I understand that the leader of the Liberal Democrats, Mr Nick Clegg, like a schoolmaster, summoned a selected number of individuals from the Cross Benches within the past few days to tell them what he thinks of them. That is absolutely disgraceful. For those reasons I would be very unhappy in supporting the Government, so I shall support the amendment.

Photo of Lord Trimble Lord Trimble Conservative

My Lords, I know that we are getting towards the end of this debate but I want to make just one short point. I understand the argument for this threshold-it is the fear that there might be a yes vote on a very low turnout, and the wish to have this protection against it-but if that did happen, we would be repeating what happened with the Scottish referendum in the 1970s.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

There is another point that is being missed: the idea, which the Minister repeated in the other place, that this threshold would be the same as the one in the Scottish referendum. In the Scottish referendum there was a threshold not on turnout but on the result, which is why it caused such resentment. A 40 per cent threshold on that would of course be unacceptable. So the comparison is a bogus one.

Photo of Lord Trimble Lord Trimble Conservative

I will make the point none the less, and I am glad that the noble Lord, Lord Forsyth, has given me assistance in making it. I take the point with regard to voting rather than turnout, but we are getting into the same territory; and, as the noble Lord, Lord Forsyth, said, it caused great resentment. Will noble Lords please consider whether this device, if it works as intended, will not also cause great resentment? I have strong views on AV and look forward to the campaign against it. I wish that we could get on with that instead of wasting our time on this matter.

Photo of Baroness Trumpington Baroness Trumpington Conservative

Many of us, I believe, voted for the Government out of loyalty to the Government, and not for the matter on which we were voting in the last round. I have listened to all the arguments today and I am thoroughly convinced by the amendment of the noble Lord, Lord Rooker, and by the speakers who have spoken. I fully intend, for the first time, to vote against my Government.

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

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

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

"So, even if the public had expressed a clear preference, it would not count".-[Hansard, Commons, 15/2/11; col. 899.]

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

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

Again, that is wrong.

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

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

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

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

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

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

Photo of Lord Rooker Lord Rooker Labour

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

Division on Amendment A1 to Motion A.

Contents 277; Not-Contents 215.

Amendment A1 to Motion A agreed.

Division number 1 Parliamentary Voting System and Constituencies Bill — Consideration of Commons Reasons and Amendments

Aye: 275 Members of the House of Lords

No: 213 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Motion B

Moved by Lord Wallace of Tankerness

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

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

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) 1:00 pm, 16th February 2011

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

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

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

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

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

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

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

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

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

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

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

"very largely an exercise in allowing the political parties to seek influence over the Commission's recommendations".

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

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

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

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

Amendment B1 to Motion B

Moved by Lord Pannick

As an amendment to Motion B, leave out from "House" to end and insert "do insist on its Amendments 16 and 19".

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I apprehend that the House will not want me to rehearse the merits of the substantive amendment to Clause 11 and respond to the criticisms of it. Your Lordships heard that debate last week. It was a very full debate and the House voted by a healthy majority to accept the amendments.

I listened to the debate yesterday afternoon in the other place. All the points that were made by the Minister, Mr Mark Harper, and the points that were made again today by the noble and learned Lord were ones that I sought to address and answer in the debate last week. I will not repeat any of that. Nothing new was put forward yesterday or this afternoon.

I should also mention-it was a point made by the noble Lord, Lord Higgins, in the debate earlier today-that on the Commons consideration of the Lords amendment yesterday the time for debate on this issue was limited to one hour. Of that one hour, the Minister, Mr Mark Harper, spoke for almost 40 minutes. Admittedly, there were interruptions during that time, but that is what happened. The actual debate from other Members of the other place-on what we all agree is an important constitutional issue and on which this House has expressed a very clear view-lasted 20 minutes. I take the view-other noble Lords will take their own views-that this is highly relevant to the question of whether or not this House ought to ask the other place to look again, and to look again seriously, at this issue.

Before I turn to the two points that I want to make, I suggest to the noble Lord, Lord Kilclooney-I am sorry that he is not in his place-that he might, on reflection, consider that he was a little unfair to the Deputy Prime Minister in the debate this morning. I was one of the Cross-Benchers invited to meet Mr Clegg to discuss the substance of my amendment. I very much welcomed that and the opportunity that I have had throughout our consideration of this Bill to discuss these matters with the noble and learned Lord and with the Bill team. I thank them for the exchanges that we have had. I understood the invitation from Mr Clegg to be a recognition-and a very proper recognition-that on the Cross Benches we put forward amendments when we think it appropriate. Each one of us considers them on their individual merits; each one of us, without being whipped, votes as we think is appropriate on that particular matter. I put on record our gratitude-I am sure that I am not the only Cross-Bencher who thinks in this way-to the Deputy Prime Minister for taking the time and trouble to meet with us. It is not appropriate for him to be criticised for doing that.

There are two substantial points that I want to make on why this House should ask the other place to think again. The first is that this amendment arises in the context of a constitutional Bill. That was the point made in the debate this morning by the noble Lord, Lord Lawson. The clause that we are now considering regulates the arrangements that govern the composition of the other place. This is a vital constitutional question. On such a question, this House, with its accumulated wisdom and experience, has a special responsibility to address the merits of legislative proposals. Indeed, it might be said that this House enjoys an advantage over the other place in that we have a broader perspective, which the other place inevitably lacks in relation to its own composition. This is not, I emphasise, any criticism whatever of the Members of the other place. It is to suggest to your Lordships that the rules governing the composition of the other place are of such constitutional importance that they cannot be left solely to the judgment of the other place, in the sense that, as soon as the other place disagrees with us, we in this House immediately retreat.

The other point is that there is a particular reason why this House should be unwilling to give way on this constitutional issue when this House was not persuaded last week of the Government's argument on its merits. This Bill was heavily criticised by your Lordships' Constitution Committee-an all-party committee-for the absence of pre-legislative scrutiny and for the lack of public consultation on issues of fundamental constitutional importance. It was perhaps the strongest criticism of a Bill seen in recent years from a Select Committee.

One of the topics that concerned your Lordships' Constitution Committee-I should declare that I am a member of that committee-was the electoral quota. Paragraph 47 of the Constitution Committee's report said:

"Pre-legislative scrutiny and public consultation would have enabled a better assessment of whether the new rules as to equalisation are overly rigid".

I understand and respect the view of the Government that, in the first year of a new Parliament, it is inevitable that measures will be brought forward without there having been an opportunity for pre-legislative scrutiny and for detailed, or any, public consultation. But if the Government choose to bring forward a Bill of constitutional importance without such prior scrutiny and without such consultation, the Government cannot complain if the scrutiny that is then conducted in this House leads to improvements in the Bill that this House is reluctant to abandon as soon as the other place expresses disagreement with it.

I should also mention that last Wednesday, 9 February, the chairman of your Lordships' Constitution Committee -the noble Baroness, Lady Jay of Paddington, whom I am pleased to see in her place-wrote to the Minister in the other place, Mr Mark Harper. She pointed out that three months after the publication of the Constitution Committee's report-it was published on 10 November 2010-the Government had yet to respond to it, despite a government commitment to produce responses to Select Committee reports within two months. She stated in her letter: "This is not acceptable". The Government did publish its response to the report on Monday 14 February, two days ago-far too late in consideration of the Bill to be of any value.

I have also seen a letter dated 14 February-Monday-from Mr Graham Allen, the chair of the Political and Constitutional Reform Committee in the other place. His letter is again to Mr Mark Harper, the Minister, and points out that his committee published its report on the Bill-again, a highly critical report-on 7 October 2010. His committee is still waiting-or at least it was on Monday-for a government response, four months later, when Parliament is about to conclude its assessment of a Bill of constitutional significance. Mr Allen observed that one might draw the conclusion that the Government had simply not complied with their duties to Parliament.

I respectfully suggest that all that is quite extraordinary and highly relevant to whether, on a Bill and an issue of constitutional significance, this House ought respectfully and politely-but insistently-to say to the other place, "You really need to look again, properly and in detail, at the views of this House". I beg to move.

Photo of Baroness O'Neill of Bengarve Baroness O'Neill of Bengarve Crossbench 1:15 pm, 16th February 2011

My Lords, I put my name to the relevant amendment on Report. As I did not have the opportunity to speak then, I shall say why I think that it would be important for the other place to consider it again. The amendment is extremely helpful to the coalition-it has not interpreted it that way-for the simple reason that Boundary Commissions are being asked to take on a complex task. There are some clear rules, but it is difficult and we do not know what position they may find themselves in. Other amendments before your Lordships' House proposed that the regular band within which constituencies might vary should be widened. I did not support any of those. I agree with the Government that it is important for democratic reasons that, in so far as constituencies can be made equal, they should be made equal. However, in reality, Boundary Commissions may face an intractable task.

There are situations in which sub-division is not as simple as we might think in considering the application of rules. As is said in primary schools, sometimes three into two won't go. For that reason and to enable the Boundary Commissions to carry out their task well -not for them to make a mass of exceptions; with good luck, they will make no exceptions-we should respectfully ask the other place to consider the amendment again.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

I begin by saying how much I admire the ability of the noble Lord, Lord Pannick, to make another most interesting and persuasive speech without repeating the speech in any great detail that he made on the previous occasion. I respect that. He said that the amendment that we discussed on Report was carried by a healthy majority; I point out that it was a quarter of the majority carried after the debate that we have just had, so I do not know what we would describe that as.

It is important to remember where we are. I would like to think that the whole of this noble House was agreed on two points: that seats should be as equal as possible, and that a more equal distribution should be in place by 2015. Some people on the opposition Benches-certainly not the noble Lord, Lord Pannick, and his colleagues-may be keen not to see more equal distribution by 2015; they must speak for themselves. However, it is certainly the objective.

I do not think that the noble Lord, Lord Pannick, challenged this point when I made it previously: his amendment allows for less equality than presently proposed by the Government. Maybe some noble Lords, including those on the Benches opposite, were not quite aware of what the Government had proposed. I do not agree with where the Government started from. They proposed 10 per cent; I had some heckling when I mentioned that last time, because people did not realise-they thought that it was 5 per cent, but of course it is 5 per cent either way, a 10 per cent spread. The amendment proposes 15 per cent. I think that 10 per cent is too high. I recognise that the Government realised that there had to be a compromise when they drew up the Bill-that some allowance had to be made for latitude by the Boundary Commission in its work. The amendment is a compromise on a compromise, because moving to a 15 per cent spread means a difference of perhaps 12,000 people between different constituencies. That is too great. That is my first point.

My second is on the other thing done by the amendments on which the noble Lord, Lord Pannick, is inviting the House to insist. He effectively conceded that 15 per cent was a big variation, so he covered himself by inserting the fact that it should be used only in exceptional circumstances. As was recognised by certain noble and learned Lords, exceptional circumstances then allow further consideration and opportunity for challenge and further chance of judicial review. That is why the amendment fails my second test by making it more likely to mean that we do not get a new and fairer electoral arrangement by 2015.

In the light of today's previous debate, we might have expected what the noble Lord, Lord Pannick, then said when he set this up as a great constitutional issue. I do not want to discuss the previous debate-I did not speak in that-and I understand entirely why the arguments might be made in this case. However, surely the purpose of our electoral system-which we all support-is that there should be equal value in equal votes, so far as possible. I do not consider that a great constitutional change which needs great pre-legislative scrutiny. Of course he talked about pre-legislative scrutiny and further public consultation-perhaps public hearings-in advance of any proposals from the Government. That would certainly scupper any chance of the electorate being able to vote at the next election, if it is in 2015, with a new and more equal distribution of votes.

The noble Lord flattered this House very adeptly-we all enjoy a bit of flattery-by saying that it has a considerable reservoir of knowledge, and that many of us have stood in many different elections and experienced boundary changes and changes in constituencies. That is absolutely right. However, I thought that he was getting perilously close to saying that, on this issue, this House was entitled in some way to be superior to the other place.

Noble Lords:

Oh!

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative 1:30 pm, 16th February 2011

He did not go that far, but there was an implication of it in what he said. I listened from elsewhere, with the advantage of television, to the speech on the previous amendment of the noble and learned Lord, Lord Lloyd, who said that it was right that this House should ask the other place to think again. The noble Baroness, Lady O'Neill, made the same point. However, on whether votes should have an equal value as far as possible in each constituency and on ensuring that the next election takes place on fairer boundaries, this House has already asked the other place to think again. The other place has replied that it does not wish us to insist on our amendment. Our ability to challenge the other House is a very important power; it has to be used responsibly; it has to be used with great care. I respectfully suggest to the House that this amendment, very ingeniously and properly moved by the noble Lord, Lord Pannick, is not the sort of issue on which we ought now to challenge the other place for a second time.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I voted against the amendment of the noble Lord, Lord Pannick, on Report. It seemed to me then, and it does so now, that a Bill which aims at equality as its underlying principle but which allows a margin of 5 per cent either way is both clear and logical. To allow a further margin of 2.5 per cent in very exceptional circumstances is neither clear nor logical nor, I suspect, necessary for the purpose of creating viable or workable constitutions. The noble Lord may have in mind specific instances of where it would make all the difference, but if there are such specific instances, they should have been dealt with as such in the Bill, as have been the Isle of Wight and Orkney and Shetland.

I asked myself throughout the original speech of the noble Lord, Lord Pannick, and what he has said today, the following question. Let us suppose that the Bill had originally allowed a 7.5 per cent margin either way of equality. Would the noble Lord then have tabled an amendment saying, "Oh, no, we had better allow an extra 2.5 per cent just in case".? I do not believe that he would have argued that and, if that is the case, I cannot see how he is entitled to make the point that he makes in relation to 5 per cent.

I do not propose to pursue that argument-I may do so later with my learned friend and I have no doubt that he would beat me to it-because there is the more important question here, which I tried to develop during debate on the previous amendment. The noble Lord, Lord Pannick, has been severe in his criticism of the Government's conduct throughout the passage of the Bill, and in many respects he may be right. However, to use those immortal words, we are now where we are, and I am unable to see how the noble Lord's amendment, even if it were ultimately accepted by us, will cure the criticisms which he has made of the Government.

Of course it was our duty to examine the Bill with great care, all the more so as it is a constitutional Bill. The noble Lord, Lord Lawson, referred to this House in the previous debate as the protector of the constitution. That may be so, but we are not the sole protectors of the constitution; so is the House of Commons. The constitutional point raised by this amendment seems, as the noble Lord said, not to be of very great importance, although it is obviously of some importance. We have given the other House the chance to reconsider this point; it has done so; it has decided against the amendment of the noble Lord, Lord Pannick; and we should now accept its view.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, before coming to the House today-and I hesitated before intending to speak-I felt that I should go back and look at the figures for the electorate of the whole of the UK and try to do some modelling on the sums. My conclusions have been based on fairly simple maths. It may be that we are where we are, but it is clear that we have lost 25 per cent of MPs from Wales and that Wales, Scotland, Northern Ireland and England will have their own areas. There have been arguments about Cornwall and rural constituencies in particular. I wanted to look at whether there might be unintended consequences of the legislation. In other words, are we really legislating for what we want to do, or do we run a risk of an unintended consequence? My noble friend Lady O'Neill put it succinctly. The point of the amendment is to allow a margin, in exceptional circumstances, so that the Boundary Commission is not locked into a difficult situation by the legislation if it comes across circumstances where the population has moved or the size of the electorate has changed and where it is suddenly faced with a constituency which does not fit within the relatively narrowly margin of 5 per cent. The principle of equality was in some ways abandoned over the Isle of Wight. That was a decision of both Houses. It was agreed that exceptional circumstances applied there. This amendment is about exceptionality. It would put a safety margin in the Bill. It would not undermine the Bill's overall principles of a more equal distribution of votes and a reduction in the other House's size.

It was the relative brevity of the debate in the other place that prompted me to pull out and go through the figures last night and early this morning. I have come to the conclusion that we should supply the Boundary Commission with a safety margin for it to provide workable constituencies so that the people of this country are well represented in the other place. Therefore, I support the amendment.

Photo of Lord Armstrong of Ilminster Lord Armstrong of Ilminster Crossbench

My Lords, as one who also attached his name to the amendment of the noble Lord, Lord Pannick, I support him in inviting the House of Commons to think again. The amendment does not fundamentally undermine the principle of equality of constituencies. It does not undermine the 5 per cent margin in any serious way. As the noble Baroness, Lady Finlay, just said, it provides a safety margin should cases arise that we do not now foresee of the kind which have caused the coalition Government to make exceptions for Orkney and Shetland, the Western Isles and now for the Isle of Wight. We cannot exclude the possibility that such circumstances will arise. The extra discretion which the amendment would allow may never need to be used, but it should be in the Bill as a safety valve because I do not think that we would want the two Houses to come back to the matter in a single case. I therefore hope that the House will support the noble Lord, Lord Pannick, and invite the House of Commons to think again.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I appreciate the efforts of the noble Lord, Lord Pannick, in connection with the amendment. The result has been an amendment which has been drafted as precisely as possible. On the other hand, it has practical consequences to which I shall come in a moment. I support what the noble Lord said in relation to the responses-or the lack of responses-of the Government to the two Select Committees to which he referred. This is deplorable and it is right that this House should express that view. I hope the Minister will take back from the House the opinion that that conduct should not be repeated and that, in future, we expect the Government to respond within the time that, after all, they have set for responding to Select Committees so that reports and the Government's response can be considered within an appropriate time. I also agree that pre-legislative scrutiny and public consultation can be of considerable assistance.

I understand, and the noble Lord, Lord Pannick, has made it clear that he understands, that at the beginning of this Parliament we hoped to get something in place in time for the next election-the suggestion is that that will be five years from the original election, although some people think it may be quicker-and the Boundary Commission has said that the task it has been set in the Bill is within its capability, although it is a tight schedule. However, the circumscribed discretion which the noble Lord, Lord Pannick, has drafted and which was approved by this House on Report, contains a quite considerable possibility for argument. Suggestions have been made about what these arguments might be, but I consider that the margin given in the discretion is very much subject to argument. The result of that will be-as the noble and learned Lord, Lord Scott of Foscote, said on Report and which I support-that the chances of judicial review in relation to this kind of discretion are much greater than they are in respect of the 5 per cent. This is because there is argument available about the precise meaning of the limitations contained in the discretion.

I know that these limitations are as precise as we can make them, but no one who has had any experience of judicial review would rule out the possibility of ingenious constructions being mooted and seriously considered by judges on judicial review. If the amendment were to remain in the Bill, there would be a greater risk than before that the Boundary Commission will not be able to complete its work within the period before the next election. Although I was not here on the previous occasion when the amendment was voted on, I was very much taken with the efforts of the noble Lord, Lord Pannick, as he knows. However, having considered the matter as carefully as I can, I have come to the conclusion that one of the consequences of the amendment may well be that the Boundary Commission would not be able to complete its task before the next election. For that reason, we would be wise to accept the decision of the House of Commons.

I admit that the system in the House of Commons requires a guillotine. Fortunately, our self-restraint is such that we do not require such a device or a timetable of the kind used in the other place, which, as has been said, was instituted some time back. However, it has been continued and, although it is not for me to tell the House of Commons how to go about its business-I have enough to do to conduct my own-it might be for the advantage of Parliament generally if a reconsideration of these timetable arrangements was introduced. At least the amendment of the noble Lord, Lord Pannick, received longer consideration than the previous amendment of the noble Lord, Lord Rooker, so we should be thankful for that.

I am not in favour of sending this amendment back to the House of Commons for a second time.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench 1:45 pm, 16th February 2011

My Lords, perhaps I may ask the Minister to address one point which is material to the issue. He said that the 10 per cent margin-5 per cent each way-would make it unnecessary to break up any ward in an existing constituency. If that is the case, the risk that one would need greater flexibility than the 5 per cent is either non-existent or very materially reduced. Can he clarify that point? It is relevant to whether we need the extra flexibility provided by the amendment of the noble Lord, Lord Pannick.

Photo of Lord Desai Lord Desai Labour

My Lords, the Government have asked the Boundary Commission to fit 597 out of 600 seats within a 5 per cent margin either way. I have tried to argue before that, in terms of statistical distributions, this will be an immensely difficult task because a standard deviation of 1.7 per cent is too small.

If the Boundary Commission were allowed to fix 95 per cent of the seats within the Government's favoured margin of 5 per cent and the remaining 5 per cent of seats-30, perhaps 25, seats-were allowed to fall under the amendment of the noble Lord, Lord Pannick, it would make the tasks of the Boundary Commission and the Government simpler. The noble Lord, Lord Pannick, has not tried to subvert anything the Government want to do; he has been very helpful in making it much easier for the Government to achieve what they want to achieve. Otherwise it will be very difficult to carry out the task.

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

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

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

When addressing Mr Mark Harper, Mr Mark Field said:

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

That is what we are now talking about.

Mr Andrew George, a Liberal Democrat Member, said:

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

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

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

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

"I do not understand why the Government and the Minister are being so rigid and fundamentalist on this issue".- [Hansard, Commons, 15/02/11; col. 869]

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

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

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

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

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

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

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

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

Another principle here is the one that the noble Baroness, Lady Finlay of Llandaff, mentioned when she said that we have departed from it. We have done so in three cases-in Orkney and Shetland, the Western Isles and the Isle of Wight. However, Parliament has decided that those should be exceptions to the principle. That is the proper way to go about it. We are trying to get the fundamental principle of equality of votes. When there are to be exceptions, they should be specified by Parliament; otherwise, we believe that we can operate within 5 per cent, giving the Boundary Commissions sufficient flexibility.

The other point of principle, mentioned by my noble friend Lord King of Bridgwater and my noble and learned friend Lord Mackay of Clashfern, is one of time. On a number of occasions-too many even to remember-we have talked about the importance of trying to get this legislation through, with a Boundary Commission that can report by 1 October 2013, so that the general election to be fought in May 2015 would be fought on new boundaries. If that does not happen, in respect of England, the boundaries on which that general election would be fought would be ones determined by the Boundary Commission based on the electorate in the year 2000, and therefore 15 years out of date.

Since the House passed this amendment last week, Professor Johnston appeared again before the Political and Constitutional Reform Committee in the other place. He was asked by the chair:

"But in fact, am I right in assessing that what you are saying is that the combination of the change from the 5% to 7.5%, plus the local hearings amendment, plus the time constraints, and plus the possibility of judicial review that follows on from those two amendments means that that combination could be fatal to the Bill?".

Professor Johnston said:

"Well, it couldn't be fatal to the Bill. It could be fatal to the implementation of the Bill within the deadline of 1 October 2013".

That was the evidence given by Professor Johnston last Thursday to the committee in the other place.

If it is a matter of principle that we should be asking the other place to consider, there is an important principle, which we have now accepted, that the next election should be fought on up-to-date boundaries and on the principle of equality of votes. On that basis, I invite your Lordships to reject the amendment proposed by the noble Lord, Lord Pannick.

Photo of Lord Pannick Lord Pannick Crossbench 2:00 pm, 16th February 2011

I am grateful to all noble Lords who have spoken in this interesting and important debate. The noble Lord, Lord King, suggested that I had come perilously close-I think that that was his phrase-to suggesting that we enjoy some sort of superiority over the other place. I am very sorry if I gave that impression to the noble Lord. That was certainly not what I said and certainly not what I intended. My suggestion, which is I think a modest one, was that in all the circumstances that I indentified in my earlier remarks, it was appropriate for this House to ask the other place to think again about this matter.

The noble Lord, Lord King, and the noble and learned Lord, Lord Lloyd of Berwick, along with the Minister, asked what the constitutional importance is here and why we should be worried about this matter. The constitutional importance is that we are debating a Bill that addresses perhaps the most fundamental aspect of our election law, such as questions of constituencies and the size of constituencies as well as questions on the electoral quota. The constitutional significance is whether this House really should approve an inflexible formula-that is what it is-that prevents the Boundary Commission going outside the 5 per cent quota whatever the circumstances it may find in any particular case.

The noble and learned Lord, Lord Mackay of Clashfern, expressed a concern that the substantive amendment would create a real risk of the boundary reviews not being completed by October 2013. I have enormous respect, as he knows, for his views and judgment-and that is not something that I say about all those whom I have represented in judicial reviews, as I did when he was the Lord Chancellor. However, I do say to him and to other noble Lords that in the context of the task already being imposed on the Boundary Commission, the additional discretion to avoid this inflexibility cannot cause real practical problems. The Boundary Commission will, in any event under Clause 11, be obliged to look at precisely these geographical factors and local ties in order to assess in its judgment whether it should move up to 5 per cent. All the amendment does is to give the Boundary Commission discretion when it has carried out that exercise and, because of the exceptionally compelling nature of the circumstances, thinks that it should move to 5.1 per cent, for example, to avoid some arbitrary barrier.

I understand the concern about judicial review, but the Administrative Court is quite capable of hearing cases speedily when that needs to be done. It does it every day. It recognises, because it does it every day, that public bodies should be left themselves to decide on the application of narrow exceptions given them by Parliament.

The noble and learned Lord, Lord Mackay, expressed agreement with my criticisms of the Government's conduct in relation to the Select Committee reports. I suggest to noble Lords that this is surely relevant when they are considering whether we should take the view that the Government and the other place have not yet adequately considered the views of this House and whether the matter should be looked at again.

The noble Lord, Lord King, congratulated me on making what he described as a persuasive speech earlier this afternoon. I suggest to noble Lords that sometimes a speech may be persuasive because it is actually right. I ask noble Lords to accept that it is appropriate for this House to ask the other place to think again on this matter. I wish to test the opinion of the House.

Division on Motion B1

Contents 241; Not-Contents 242.

Motion B1 disagreed.

Division number 2 Parliamentary Voting System and Constituencies Bill — Allowing Greater Variation from Mean Number of Electors in MP Constituency in Exceptional Circumstances

A majority of Members of the House of Lords voted against allowing geographical considerations or local ties to justify greater variation from the mean number of electors in a parliamentary constituency.

Aye: 234 Members of the House of Lords

No: 236 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 352 Members of the House of Lords

Absents: A-Z by last name

Motion B agreed.

Motion C

Moved by Lord Wallace of Tankerness

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

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) 2:22 pm, 16th February 2011

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

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

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

Photo of Lord Fowler Lord Fowler Chair, HIV and AIDS Committee in the United Kingdom

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

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

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

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

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

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

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

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

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

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice) 2:30 pm, 16th February 2011

My Lords, I congratulate the Isle of Wight on this great achievement and the noble Lord, Lord Fowler, on the work that he has done to secure it. I wish the people of the Isle of Wight well in relation to the conclusion that has been reached. It is a decent outcome. It could have applied to other places but now is not the time to dwell on that. I wish the Isle of Wight good luck. I assume that the conduct of the Government in relation to the Isle of Wight prefaces a good result later in the day on the amendment that we passed earlier.

Motion C agreed.