European Union Referendum Bill — Commons Reason

– in the House of Lords at 3:13 pm on 14th December 2015.

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Votes in this debate

Motion A

Moved by Lord Faulks

That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.

1: Clause 2, page 2, line 7, at end insert “and persons who would be so entitled except for the fact that they will be aged 16 or 17 on the date on which the referendum is to be held,”

Commons Disagreement and Reason

The Commons disagree to Lords Amendment No. 1 for the following reason—

1A: Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, this afternoon we return to the question of the voting age. Since we last debated the Bill, only two weeks ago, it has been considered in the other place. It agreed to all of the amendments made by your Lordships, with the sole exception of Amendment 1, which would lower the voting age to 16.

This House has now discussed the question of the voting age many times since the election in relation to this Bill and the Cities and Local Government Devolution Bill, so this is now well-trodden ground. The Government’s position is therefore well known. We do not believe that it is appropriate to lower the voting age to 16 and, even if it were, this Bill would not be the place to make such a change. That applies as much to the amendment before the House today in the name of the noble Baroness, Lady Morgan of Ely. I recognise that she has done what she can to minimise the charge on the public purse but that does not change the principle of the Government’s position.

Before I turn to the substantial arguments, I will set out the Government’s position on financial privilege and procedure. Along with the decision to disagree with Amendment 1, the other place has sent us its reason:

“Because it would involve a charge on public funds”.

This is a reference to the financial privilege of the House of Commons. There has been a great deal of discussion and speculation on this issue, so I will endeavour to set out the Government’s position. When this House amends a Bill sent to us by the House of Commons, our amendments are assessed by the clerks in another place in order to establish whether they engage the financial privilege of the House of Commons. That important process is carried out under the authority of the Speaker, and the Government—any Government—have no say in it.

The fact that a Lords amendment to a Bill has been deemed to engage the financial privilege of the House of Commons is announced to that House before it considers the amendment, but it does not prevent the House of Commons from agreeing to that Lords amendment and thereby waiving its privilege: indeed, this happens routinely. However, should it disagree to the Lords amendment, financial privilege is the only formal reason that it can give for doing so.

It should come as no surprise that the original amendment that we sent to the House of Commons, lowering the voting age, was deemed to engage the House of Commons’s financial privilege. The Government estimate that extending the franchise to 16 and 17 year-olds for the referendum would cost at least £6 million. But, as my honourable friend the Minister for Constitutional Reform, John Penrose, explained to the House of Commons last week, that is not the reason why the Government invited the House of Commons to disagree to this House’s amendment. The Government disagree with the principle. We disagree with the proposal to extend the franchise to 16 and 17 year-olds for the referendum for the reasons I made clear to this House when we considered the original amendment, and which I will again set out briefly this afternoon.

I turn now to those arguments. Given the number of times your Lordships have considered this, I of course do not intend to rehearse every part of the argument. However, I will set out briefly why we firmly believe that the voting age should remain at 18 for the referendum. Society has drawn numerous lines for when a young person is able to take various decisions. A 16 year-old may join the army but not use a sunbed. An 18 year-old may be deployed in a war zone but not drive a bus. Only a 21 year-old can supervise a learner driver or adopt a child. For many activities, parental consent is required; in England and Wales, joining the Armed Forces and getting married require the agreement of a young person’s parents. It would hardly be appropriate to require parental consent to cast a vote.

The state also requires that young people in England remain in education or training until the age of 18, and in Scotland young people will soon apparently enjoy the protection of a state-appointed guardian until the age of 18. Indeed, the United Nations Convention on the Rights of the Child defines a child as a person under the age of 18, unless national laws set a lower age of majority. The Committee on the Rights of the Child goes further and recommends that if a country’s age of majority is below 18 it should be reviewed, and that levels of protection be increased for all people younger than 18. Similarly, the Independent Inquiry into Child Sexual Abuse, led by Dame Lowell Goddard, has defined “child” to mean anyone under the age of 18.

These distinctions are, in the final analysis, a matter of judgment. There is no single answer to the question of when a young person should be able to take one decision or another. But it is at 18 that society generally views a young person as becoming an adult. The line has to be drawn somewhere, and we suggest that 18 is the logical, consistent place to choose.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

The Minister knows that in Scotland in the Scottish referendum, 16 and 17 year-olds were allowed to vote. I spoke to many of them during the course of that referendum and found them intelligent, well-informed and exercising their right to vote with great enthusiasm and sense. Therefore, it was a successful experiment. Why does the Minister not agree that it was successful and why does he think there was something wrong with doing that?

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

I do not suggest that it was unsuccessful, nor do I for a moment cast aspersions on the intelligence of 16 and 17 year-olds in Scotland or in England and Wales. Enthusiasm is of course to be welcomed at any age. Equally, there may be 15 year-olds who are very well informed and intelligent, whether they are in Scotland or in England and Wales. But, although Scotland took the view that it did about the voting age because of the devolution arrangements, most democratic societies have made the same judgment as this Government makes. In every EU member state but Austria, the voting age is 18 for national elections, and referendums where they take place. The 1975 referendum proceeded on that basis, as did the referendum on AV—and, as your Lordships may remember, the EU Act 2011would in the event of a transfer of power on competences have triggered a referendum according to the franchise that is used for general elections.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat

Before the Minister moves on from the point that the noble Lord, Lord Foulkes, raised with regard to Scotland, he tries to give the impression that it was decided purely and solely by the devolved authority with no support. Can he remind the House whether the Prime Minister and the leader of the Conservative Party in Scotland supported the extension of the franchise to 16 and 17 year-olds in the referendum?

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

With respect, whether the Prime Minister or the leader of the Conservative Party favoured a 16 year-old franchise is beside the point as to whether the Government think that it is appropriate in this referendum for those 18 and above to vote, in the traditional way of the franchise. I know that many have pointed to the Scottish independence referendum and have said, rather like the noble Lord, Lord Purvis, that in some way that “opened the door” to votes at 16. Others point to the apparent inconsistency between elections for the Westminster Parliament and elections for the Scottish Parliament. However, inconsistency is a natural consequence of devolution. The decision over the voting age has been devolved to the Scottish Parliament. It may decide to raise the voting age or lower it, but that does not bind the decisions made in any of the other legislatures in the United Kingdom. It would be quite contrary to the spirit of devolution if we thought that a decision in Holyrood should determine a discussion here or whether a discussion here, on a devolved matter, should determine the decision in the Scottish Parliament. Even if one were convinced of the case, this Bill would not be the right place to make the change.

I hope that all noble Lords can agree that this is undoubtedly a complex issue and by no means straightforward. The arguments on both sides deserve respect and a fair hearing. To suggest that 16 year-olds should perhaps wait is not in any way to disrespect or criticise them, or in any way patronising. Few things are as important as the decision about who is included in the franchise and, as such, the matter deserves proper scrutiny and consideration. There should be a proper debate in this House, in the other place and in the country at large before such a significant change is contemplated. Clearly there is no consensus between the two Chambers, but nor is there clear consensus in the country as a whole.

It would not be right to bring in a novel constitutional change through an adjunct to a Bill such as this, with a specific but limited purpose. This proposal is no replacement for the proper consideration that would be given to the matter in a representation of the people Bill. As your Lordships may remember, the last one was in 1969, following a widespread national debate. When the matter came before your Lordships’ House, many noble Lords did not accept that the franchise should be lowered from 21 to 18. Some suggested that the age should be 20 by way of a compromise, but it followed widespread national debate, not an amendment to a Bill brought about by the House of Lords.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

I have a certain conceit over this matter, as I was the first Member of Parliament ever elected by 18 year-olds following the exact Act to which the noble Lord has referred. Is that not the model that we should follow? If we are going to change the voting age, it should be comprehensively considered as a separate matter. It is certainly not something on which this House should seek to override the judgment of the elected House, which has now been given three times.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

I respectfully agree with my noble friend and, of course, the 18 year-olds showed excellent judgment on that occasion.

Finally, the House needs to consider very carefully the perception created by a change to the franchise. We speak of this as being a once-in-a-generation referendum. If that is really the case, all sides must be able to accept the result as fair and robust. There is a real danger that a change to the voting age for the referendum could undermine that. Rightly or wrongly, a change to the franchise may be seen as an attempt to engineer the result, and that perception would damage the public’s confidence in the result of the vote.

I do not pretend for a moment to know how 16 and 17 year-olds would vote, any more than we know how 18 or 19 year-olds would vote, but the House will no doubt appreciate that a considerable part of the electorate will be disappointed with the result of the referendum. It is crucial that those who are disappointed accept the result, notwithstanding their disappointment, and do not feel it appropriate—in their minds or expressly—to cast doubt on its legitimacy.

I therefore urge noble Lords not to insist on their amendment or to agree with the amendment in lieu proposed by the noble Baroness, Lady Morgan of Ely. Instead, I urge this House to accept the position of the other place. This Bill is not the place to make a change to the age of voting; it is not the way to make good law. I beg to move.

Motion A1

Moved by Baroness Morgan of Ely

As an amendment to Motion A, at end insert “but do propose Amendment 1B in lieu—

1B: Clause 2, page 2, line 7, at end insert—

“( ) the persons who, on the date of the referendum, will be aged 16 or over and are registered in the register of electors for parliamentary elections; any steps taken to register such eligible persons shall—

(i) focus on registering 15 year old “attainers” (those who will attain the age of 16 by the date of the referendum); and

(ii) utilise low-cost means of communication such as email, in particular making use of school email services,””

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Wales) 3:30 pm, 14th December 2015

My Lords, I rise to move Motion A1. I start by thanking the noble Baroness the Minister and the noble Lord the Minister for their co-operation on this Bill. The Government have been in listening mode and have understood that the vote on whether we leave or remain a part of the EU is one of the greatest political questions that will be put to this country this century. Ensuring that there is a valid and fair vote and ensuring that the public have the knowledge that they need to make an informed choice were some of the key criteria that we were trying to attain during the debate. We are grateful that the Government have responded.

We now have one final hurdle over which we are at odds with the Government. This House voted overwhelmingly in favour of ensuring that 16 and 17 year-olds were given a voice and a vote in the forthcoming EU referendum. Many were convinced that it did not make sense to continue with the inconsistency that now exists across the United Kingdom on when young people should be allowed to participate in the political process. Others were persuaded that the enthusiasm and intelligence that were demonstrated by 16 and 17 year-olds during the Scottish referendum debate were an example to others and would be replicated throughout the United Kingdom. Many were satisfied that the factual-based evidence from Austria and Norway demonstrated that it makes sense to encourage young people to vote while they are still living in the communities where they were brought up and where they can be encouraged by their parents to undertake their duties as citizens before many leave home at the age of 18. Many were further convinced that the evidence from those countries showed that, if young people start voting at the age of 16, they are more likely to continue to vote when they are older.

Many Peers were also reassured by the fact that today’s 16 and 17 year-olds are the most informed 16 and 17 year-olds in history, having undertaken citizenship classes at school and having information not at their fingertips but usually at the tip of their thumbs, with their constant tapping of their mobile phones. Mostly, people were aware that this would be a once-in-a-generation opportunity for these young people to express their view on a long-term relationship between our country and EU member states, the outcome of which will affect them longer than any of us and over which they should have a say.

We were deeply disappointed that the Commons did not support our approach and were extremely surprised when the Clerk suggested that the issue was subject to financial privilege. I will address the issue of invoking financial privilege later. First, let me turn to the alternative amendment that we have set out. We are grateful that the Government have dealt with the merits of this amendment in principle and not hidden behind the financial privilege reason that has been put forward by the Commons. We have determined to submit a new amendment that will address the issue of cost. First of all, we dispute the amount that the Government have suggested this amendment would cost: £6 million. In the context of government expenditure of £760 billion, £6 million is chicken-feed. We are talking about 1/1,000th of 1% of the budget. The cost of the referendum is not known, but we know that the cost of the referendum on changing the electoral system to a PR mechanism was approximately £75 million. Given the way that young people energised the campaign in Scotland, even using the Government’s own figures it would be easy, I think, to justify this additional expense. It would be extremely useful if the Minister could give us a detailed understanding and breakdown of how the Government came to this figure.

We accept that about £800,000 would have to be spent on sending 16 and 17 year-olds information through the post during the campaign, as was promised to other voters—although the idea of 16 and 17 year-olds waiting for information arriving by post, when most of them probably have never received a letter in their life, is something of an odd situation. However, we dispute the fact that the Government can include in their estimates a calculation for any additional costs for counting officers’ and regional counting officers’ expenses. We have no idea what the turnout will be, with or without 16 and 17 year-olds. The Government are stabbing in the dark.

According to the head of the Association of Electoral Administrators, the cost of counting does not change in line with turnout. Whether there is a 30% turnout by the British public in the referendum or an 80% turnout, it would not change the amount that public officials are paid. Therefore, an additional 1.5 million voters—even if they all turned out to vote—would not make a difference to the costs of the counting officers’ and regional counting officers’ expenses. Indeed, the chief executive of the Association of Electoral Administrators, John Turner, has stated clearly that, while the Government estimate that £4.2 million of this £6 million would form a part of the costs of the conduct of the poll and thus come from the Consolidated Fund to cover counting officers’ and regional counting officers’ expenses, the association would question that, as the conduct of the poll has nothing whatever to do with registration. He said that, under the fees and charges order 2015, Statutory Instrument No. 476, it is clear that expenses for registration purposes would not be allowed. Indeed, for the last parliamentary election, not one penny for the conduct of the poll went to registration. Let me be clear: we refute the figure suggested by the Government as their estimated cost of implementing this amendment. Nevertheless, in our new amendment we have sought to give a clear indication of how costs could be saved.

Photo of Lord Higgins Lord Higgins Conservative

The reality is that the House of Commons has decided to invoke financial privilege—not that it is this or that amount. It has the right to invoke financial privilege and the actual amount is irrelevant to that right.

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Wales)

I do not think that the amount is irrelevant. One of the points that I will come on to is the threshold for invoking financial privilege. It is like a dark art: no one has any idea what it is and there is nothing written down anywhere. I will come on to that point and deal with the constitutional issues later in the debate, when I will be happy to deal with questions relating to financial privilege.

In the amendment, we are trying to address the issue of the costs. We accept that £800,000 would have to be spent on information, because that is what everyone else is getting, but we can bring down the costs substantially. Currently, electoral registration officers write to households and ask for a list of individuals in that household. These individuals are subsequently sent a registration form. They are asked for the names of not only people over 18 but also those who will attain that age in the next year. Therefore, 17 year-olds and many 16 year-olds are already invited to put their names on the list. In other words, we already know who these young people are and they would simply need to complete the second part of the registration exercise. We can be clear that most of this generation would do so online—no postage, no cost.

Therefore, the people we need to focus on are those who will attain the age of 16—the proposed new age of voting in the referendum—in the forthcoming year. We emphasised time and again in Committee and on Report that this would be relatively easy, as we know exactly where these people are—at school.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I am sorry to interrupt the noble Baroness, but is not the nub of the matter our saying to Members of the elected House that we know more than they know about what the franchise should be? We are even flying in the face, if we are misguided enough to support the amendment tabled by the noble Baroness, of the latest pronouncements by the Electoral Commission. This is about the constitutional place of this House and the constitutional supremacy of the elected House.

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Wales)

Of course we understand that the other House has spoken on this issue, but it has also invoked financial privilege. I am trying to address the issue of costs in this amendment. The problem is that there is no threshold—or we do not know what it is. What does that mean for the ability of this House to engage at all, in any way, with the Representation of the People Act?

Perhaps I may continue. The people we need to focus on are those who will attain the age of 16, the new age of voting in the referendum in the forthcoming year. Let me emphasise, in response to the comments of the Electoral Commission—I shall come to the point made by the noble Lord—that our amendment does not preclude electoral registration officers from chasing up 16 and 17 year-olds and it does not stop them using all available methods to identify and encourage registration. The Association of Electoral Administrators does not think it would be difficult to make changes to the electoral registration service. A relatively simple—and, I emphasise, extremely cheap—way of registering young people would be writing directly to schools to ask for help in sending out emails with the registration form attached, as is currently done with university students. I do not know of many, if any, secondary schools that do not provide their pupils with a school email address. The costs of registration would therefore be absolutely minimal.

Nor would this be a tremendous increase in work for electoral registration officers. If, as has been suggested, we are talking about an additional 1.5 million voters, given that there are 380 electoral registration officers—one for each relevant local authority—we are talking about each ERO registering on average only an additional 4,000 voters, which is not an enormous new burden. The organisation Bite the Ballot is co-ordinating a national voter registration drive which aims to inspire hundreds of thousands of 15 to 24 year-olds to register this February. It will include a national network of schools, colleges, sixth-form teachers, school leavers, student unions, youth clubs and charities, so this is being done anyway at no additional cost. The Electoral Commission itself has noted that EROs should be working with schools and colleges in their area because this is a key activity that we need and expect all EROs to explore. We are asking EROs to do only what they are expected to do anyway.

I turn now to the issue that seems to be vexing the Government: that this is not the right place to make such a change and that it should be debated seriously as part of a wider debate on franchise. We are happy that the Government agree that there is a need for a wider debate on franchise, and it would be useful to have a timetable for such a debate. Can the Minister give me a concrete answer to that specific question? The Government say that this should not be done in a piecemeal way. We on the Labour Benches believe that there should be a comprehensive constitutional convention to address this and other issues relating to our democracy. But I was under the impression that the Government enjoy piecemeal change. It was this Government who gave permission to 16 and 17 year-olds to vote in the Scottish referendum campaign. It was this Government who allowed the Scottish Parliament to determine whether 16 and 17 year-olds should be able to vote in its own election, and it was this Government who allowed the Welsh Assembly to determine for itself whether 16 and 17 year-olds should be allowed to vote.

Photo of Baroness O'Cathain Baroness O'Cathain Chair, National Policy for the Built Environment Committee

It was not this Government who did that; it was the coalition Government.

Noble Lords:

Oh!

Photo of Baroness O'Cathain Baroness O'Cathain Chair, National Policy for the Built Environment Committee

Noble Lords may laugh. But perhaps I may remind the noble Baroness that we are on very tricky ground. We are playing with the constitution and with the fact that we are not supposed to check on financial privilege. All this stuff we are getting now is of no relevance to the Motion.

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Wales) 3:45 pm, 14th December 2015

I cannot believe that we are being accused of playing with the constitution, given what is going on in this place at the moment. It is important for us to remember that it was suggested that the Government’s should decide this, but only 37% of the public voted for the Government. More people voted for Labour, the Lib Dems, the SNP and the Green candidates, who had this provision in their manifestos. It is worth noting also that the Minister leading for the Government on this Bill was the shadow Chief Whip when she led this House to 81 defeats of the Labour Government. Let us also not forget that the Labour Government had a substantially larger mandate than this Government. Perhaps the Minister will enlighten us as to whether his colleague thinks that all those victories were wrong during that period.

Let me turn to the constitutional aspects of the relationship between the two Houses, which have been thrown up as the result of financial privilege being applied to this amendment. I am no expert on constitutional matters and, no doubt, there are many experts in this Chamber. However, over the past few days, I have been trying to understand when and how financial privilege is invoked, and to find out specifically who decides on these matters. What are the guidelines or factors which determine the threshold concerning when and whether such a decision should be subject to financial privilege? I am grateful that the Minister set out some of the rules.

As this decision is crucial to the Lords’ ability to consider amendments, and as the Government have no option but to cite financial privilege as the reason for rejecting an amendment, I assumed that the system for deciding these matters would be open and transparent, with a clear set of criteria for determining each outcome. At the very least, I thought there would be a clear indication of the minimum threshold at which financial privilege would kick in.

I have requested specifically of the Commons Clerk an answer on minimum threshold. Search as I have, I have been unable to find anything written anywhere which sets out the criteria. I would be grateful if the Minister referred me to such a document, if one exists. I understand that the Government have a clear political agenda, not just in this Bill but in all Bills which come before this House. We accept that they have a majority, and have been elected and are accountable. But if it is the Commons Clerks, who are unelected and unaccountable, who decide what is subject to financial privilege, at the very minimum we need extremely clear and transparent procedures for determining this, as they have such a major impact on the ability of this Chamber to influence policy decisions.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

It is of course the Speaker who decides, advised by the Clerks.

Photo of Lord Morgan Lord Morgan Labour

That is only half true at best. In 2012, we were told by the noble Lord, Lord Strathclyde, that the Speaker, as the Minister says, is advised by the Clerks, but the Clerks are not expert in the financial details of legislation. Therefore, they consult the Government and so the Government have an input.

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Wales)

I thank the noble Lord for enlightening us on that point. We need transparency in all of this. We need to know who is making the rules and under what criteria they are being made. If the Clerks are going to cite financial privilege in a case such as this, it can be cited for almost every policy change that we suggest which will incur a minimal cost.

It could be argued that the powers of this Chamber, the role of which is to make the Government think again on policy issues, are severely restricted, particularly in relation to electoral issues, where the other Chamber has a very clear vested interest. It is a shame that this issue has now become involved in a wider constitutional debate on financial privilege, but we hope Peers will still assess the merits of this case on the substance of the amendment. We believe that 16 and 17 year-olds are and can be responsible participants in our democracy. We believe that this is their one-off opportunity—a once-in-a-generation vote on the profoundly important issue of whether we should remain a member of the EU. I urge fellow Peers to support us on this issue, and to give these young people the respect and the voice that they deserve. I beg to move.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

My Lords, in an otherwise very careful speech, the Minister implied that this was simply, but only, a once-in-a-generation decision. That is not what the Prime Minister said in his Chatham House speech on 13 November, when he said that the EU referendum,

“is a huge decision for our country … And it will be the final decision”.

The Minister referred to disappointed voters; the people who will be most disappointed by this decision will be those who are excluded from it when it is their one and only chance to influence a vital decision for our country.

For the sake of brevity, I shall not rehearse all the arguments that I have so often used in this Chamber on the merits of extending the franchise for this vote.

I endorse absolutely what the noble Baroness, Lady Morgan of Ely, said. It would be surprising if I did not; my colleagues and I have supported this increase in the franchise for young people for many years. It would be very inconsistent if we did not do so now. Instead, I want to highlight two wider issues that have been gently referred to already but have perhaps even greater salience for our House.

One of the oldest tricks in the Whips’ trade—I used to be a Whip—when you are losing an argument is to change the subject. That is, effectively, what the Government are now doing. They have moved from trying to defend the inconsistency of the franchise for the Scottish independence referendum compared to that for the forthcoming European referendum to insisting that a clear majority of your Lordships’ House should be ignored on the grounds that we voted in a way that will cost money.

In their letter to us on Friday, Ministers told us, and were at pains to emphasise, that what they termed the Government’s formal reason for disagreeing with the Lords amendment was because,

“it would involve a charge on public funds”.

The Motion and the Minister’s speech this afternoon confirm this statement. That suggestion—that they had no alternative—is simply specious. Elsewhere in the letter, they say:

“It is our view that should this significant change to the franchise be made, it should be debated seriously as part of a wide debate on the franchise, not done piecemeal for a one off electoral event”.

The Minister has already made that statement again in this afternoon’s debate. That has been a constant and respected theme of Ministers at all stages of the debate in both Houses, and indeed from their party’s supporters throughout all stages of the Bill. But it could have been perfectly well incorporated in an amendment in lieu in the other place in last week’s debate. That is what they could and should have done; that would express what is, apparently, the view of the Government. They did not do it. Instead, Ministers deliberately chose to trigger the financial privilege threat. Why?

We are now faced with yet another attempt to restrict the role, responsibility and sheer relevance of this House of Parliament. This time it is the franchise. What next? If in future we amend a Bill in any way that could incur additional expense—a “charge on public funds” as the Minister put it—the Government could use this as a precedent. Next time it could be international development, childcare, legal aid or NHS priorities. That is what they are trying to do—to clip the wings of your Lordships’ House. We should be under no illusion. This is not just a casual, minimalist tweak of the relationship between the two Houses. This is part of a much more insidious exercise to dilute our role—some would say to completely neuter your Lordships’ House.

Photo of Lord Elton Lord Elton Conservative

My Lords, the noble Lord speaks as though this is a new departure and something that has not been done before. In fact, it has been in existence for generations and has been frequently used.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

Yes, but it is done now in a deliberate attempt to try to prevent us pursuing a very important issue. I suggest to your Lordships that we should be very careful of any attempt to do that, particularly in those circumstances. Look at the wider context. Taken with this House’s effective exclusion from discussions on English votes for English laws, which is now going on—we were not allowed in—and with the Strathclyde review, we will have only ourselves to blame if we fail to note the way the wind is blowing. Please observe the words of Mr Stewart Jackson, the Conservative Member of Parliament for Peterborough, in last week’s debate:

“In conclusion, it is a constitutional outrage that the superannuated, unelected, unaccountable panjandrums in the House of Lords have told us what the elected House should be doing even though we have a settled view on this. They should learn their place. They must be subservient to the elected House, and it is high time that we had House of Lords reform”.—[Hansard, Commons, 8/12/15; col. 880.]

Amen to the last one. That is what is behind this: it is not to give new influence to this House, but to take away what little influence we have.

Photo of Lord Rooker Lord Rooker Labour

I want to ask the noble Lord a practical question. We are discussing a Bill, not an order. The elected House will always have the last say under the Parliament Acts. I ask him to be more practical about this: given that the Commons has sent this back without an in lieu amendment, if this House carries this amendment and it goes back to the Commons, we would be put in the position of not being able to provide another in lieu amendment. Next week we will have the same reason back—financial privilege. What will he do then?

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

My Lords, let us wait and see. If the House of Commons and the Government do not take this House seriously, why are we here? That is the question we have to ask ourselves.

I take up in particular this issue of the elected House having a right to bulldoze through what they think is right for election law. I have been a Member of the other House. I have to tell your Lordships that it is not unknown for Members of Parliament to have a particular interest in the electoral arrangements that got them there. I reject utterly the idea that somehow your Lordships’ House is not allowed to have a view on electoral law. I have been here some time now—more than 10 years. I have been involved in revision of electoral law many times. No Government have ever sought to stop us.

Photo of Viscount Eccles Viscount Eccles Conservative

My Lords, I thought that the noble Lord did not think that we should be here. Indeed, he certainly does not think that I should be here.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

My Lords, if that is the noble Viscount’s view, perhaps he will not want to whip the vote this afternoon.

In the very last minute of his speech in the Commons debate last Tuesday, the Minister suddenly introduced this financial privilege issue. However, he did not even mention the estimate figure that the Government were playing with. Perhaps he could not bring himself to give credence to the incredible. During previous debates there and through all stages of the Bill in your Lordships’ House, no Minister has ever advanced the argument that forecasted cost was a substantial reason for opposing this change to the franchise for this specific vote. The figure of 6 million has not even been hinted at at any stage in either House.

When I heard about this I was reminded that, during my period in the other place, the Serjeant at Arms had to keep an opera hat, neatly collapsed, by his chair, so that, if a Member wished to raise a point of order during a Division, he could do so seated and covered. I once or twice used that essential accessory for that eventuality. It is sad that it was subsequently abolished. The opera hat disappeared on the initiative of the then Leader of the House, Robin Cook. George Young and I were accessories to its removal. Last Tuesday, the Minister would have made good use of that hat. Perhaps I should refer to him as the magician, because he pulled this extraordinarily large rabbit out of the hat as a suspiciously rounded total, as the noble Baroness, Lady Morgan, said.

The following day, I was chairing a conference of electoral administrators. Nobody there seemed to know the basis of this estimate. So far as I can establish, neither the Electoral Commission, nor the Association of Electoral Administrators, has actually endorsed it. Moreover, we had a presentation at the conference from the convenor of the Electoral Management Board of Scotland, Mary Pitcaithly, who gave an extremely detailed, meticulous account of all the challenges she faced as chief counting officer for the whole Scottish independence referendum process in September 2014. She left nothing out of her remarkably comprehensive account of that very successful exercise. She did not identify any excessive additional expenditure on this scale as a result of the inclusion of 16 and 17 year-olds in the electorate.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative 4:00 pm, 14th December 2015

We seem to be failing to understand the point which the Minister put very clearly. The identification of extra expenditure was not done by the Government. The noble Lord should know, as he and I were both in the other place for long enough, that it was a technical exercise, done by the Clerks, who reported the matter to the Speaker. With respect to the Lord Speaker in this House, the Speaker’s law carries much more weight in terms of how procedure will be observed. I understand that the Government could have chosen to waive financial privilege, but that is an entirely different matter. The noble Lord has said that the Government are trying to bulldoze through their view of electoral law and that that is an outrage to this House. Who is actually trying to change the law at the moment and who is trying to sustain the present position?

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

My Lords, I am afraid that that sequence is not quite correct. I think the noble Lord will accept this, but if we have a difference of opinion, we can discuss it afterwards. The critical point about the process is that it is for the Government, first and foremost, to decide whether they want to table an amendment in lieu or simply reject the views of this House. That was the Government’s decision, not the Speaker’s. Whether there is advice or not, it is the Government’s decision that they wish not to pursue the idea of a more general review of the franchise.

They simply wanted to reject the view of the House of Lords. They then triggered the issue of financial privilege and it is indeed correct that neither the Clerks nor the Speaker could then gainsay them. However, this figure has now got common currency and it is thought that that somehow justifies this process. If your Lordships’ House was only proposing a little baby, they might have let it through; but they thought it was a big baby and they produced it in the way they did to try and scare us. This rabbit has been inflated by Ministers for their own political ends. We should be told exactly what the calculation is; what, realistically, it is as a proportion of the total referendum budget; and who now endorses this figure.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

The noble Lord keeps on talking about the Government doing this. Surely, however, the House of Commons has already rejected this policy four times, by an average of 50 votes.

Photo of Lord Tyler Lord Tyler Liberal Democrat Lords Spokesperson (Constitutional and Political Reform)

My Lords, that is not absolutely true. First, it has not specifically rejected the amendment proposed by your Lordships’ House. Secondly, as I thought I had just explained, the issue of an amendment in lieu means that it is no longer necessary. If the Government had decided on such an amendment to express their apparent view that a general review is required, and that it should not be in this one Bill, financial privilege would not have been triggered in any way. That is the process that should have been undertaken.

The issue before your Lordships’ House today is no longer simply whether the electorate for the EU referendum should or should not be expanded, important though that is. I have given a lot of time and effort to trying to make sure that this referendum is one that we can be proud of because it has the same electorate as the one that was so successful in Scotland on a similar issue of the future of that generation. However, this matter has now been deliberately escalated by Ministers into an insidious attempt to undermine the constitutional role and responsibilities of your Lordships’ House. We must stand firm, pass Amendment A1 in the name of the noble Baroness, Lady Morgan, and reject this attack.

Photo of Lord Cormack Lord Cormack Conservative

We have heard a frankly terrible speech from the noble Lord, Lord Tyler. How does he have the brass nerve to lecture your Lordships’ House, coming, as he does, from the most grossly overrepresented party, which, moreover, allegedly believes in proportions and proportional representation and most of whose members, including the noble Lord, Lord Tyler, would, like Samson, like to bring this Chamber down about their ears? Indeed, I heard a noble Lord from those Benches say only recently, “It does not matter what we do so long as we destroy the House of Lords and replace it with an elected House”. However, those of us who do not believe in an elected second Chamber and believe passionately in the supremacy of the elected Chamber at the other end of the corridor, believe that what we are now embarking on is an extremely dangerous course of action. If we accept the supremacy of the elected Chamber and accept that your Lordships’ House, of course, has the right to invite the elected

Chamber to think again, but, if the elected Chamber, by a majority far in excess of that enjoyed by the Conservative Government, says no, who are we to persist, particularly in a matter concerning the franchise?

Many noble Lords on the Labour Benches do believe in this House and believe that an unelected and appointed House, with its accumulation of experience and expertise, adds value to the constitution without challenging the unambiguous elected authority of the other place. I appeal to those Members on the Labour Benches, many of whom I am privileged to count as personal friends, not to play this game and not to go along with the destructionists on the Liberal Democrat Benches, most of whom do not believe in this place and would use almost any spurious and specious reason and excuse to damage it.

We have exercised our right and a number of my Conservative colleagues voted for votes at 16. I did not, but a number of them did. I respected their integrity but now the time has come to say, “You haven’t decided to think again. We must move on”. I urge all your Lordships to recognise that we have reached the limit. We should not seek once more to overturn the mandate of an elected House with a majority of 50. As I said earlier, that is far larger than the 12 that the Government nominally enjoy.

Noble Lords may have a brief moment of euphoria if the Government are defeated tonight, but it will be followed by the danger of a real constitutional crisis arising between our two Chambers that could do enormous damage to the standing of Parliament in general, and of this House in particular.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, if I understand it correctly, the House of Commons, through the Speaker, has said that this is a matter of finance. If that is correct, it is the short answer to what we are dealing with tonight. I cannot understand why noble Lords are banging on about all the other subjects if we really cannot deal with this matter because it is a financial issue. I find it very difficult to understand what we are spending time on at the moment.

Photo of Lord Dobbs Lord Dobbs Conservative

My Lords, since this may be the last opportunity that any of us have to discuss the Bill, I will start my few very short remarks by paying tribute to my noble friend Lady Anelay and her ministerial colleague, my noble friend Lord Faulks—but particularly to the noble Baroness. I speak from the heart, and from a little raw experience, when I say that this historic Bill holds the prospect of many bear traps but that all of them, except one, have been avoided by the patient and very sensitive work of the Minister. I am sure that the whole House will want to not only congratulate but thank her for her tireless efforts.

But—there is a bear trap. I must apologise for not being able to be in the House for Report but it seems that the noble Lord, Lord Tyler, made up for my absence in spades. I was on the other side of the world but, reading Hansard, it was as though I was here. He quoted me extensively, repeatedly and even voraciously—and, as always, far more eloquently than I could. I felt rather like Banquo, the ghost at the feast, with the characteristically shy and retiring figure of the noble Lord in the unaccustomed role of Macbeth. I am grateful for the praise that he showered upon me. He was kind enough to mention beforehand that he might and I make no complaint.

I think it is reasonably well known that I, along with a good number of other Conservatives, support the principle of giving the vote to 16 and 17 year-olds. I would have been happy to have signed the original amendment. I will not repeat the arguments today; others have done that and the lines are all too well known. But I am still waiting for a convincing answer as to why the Government acquiesced in granting the vote to young people in the referendum in Scotland. It all seems a little untidy. I know that our unwritten constitution is often a rather rumpled bed, depending on who was the last to sleep in it, but every so often it is wise to give the sheets a bit of a tug to straighten them out. That is why I supported the original amendment.

Yet—how may I put this delicately?—while the noble Lord, Lord Tyler, quoted me largely correctly, I am afraid that he did not quote me completely. He failed to mention the comments I made in Committee about this not being a black and white argument, but one that is actually quite subtle and a matter of judgment and of balance. I find it alarming when some see this matter as one of absolute principle in which no quarter can be given. I wish that I was as certain about anything as some appear to be about everything. I think that there is a stronger argument for giving the vote at 17 rather than at 16 and, in my view, probably not at 15. We have to draw the line somewhere, but where to draw that line is no longer the issue here today.

If I may stretch my metaphor, we have by this stage climbed into an entirely different bed. This is no longer about the rights of vibrant young people but about the rights of largely elderly, perhaps less vibrant and entirely unelected Peers—if that is the right and polite way to say these things; I am never quite sure. We asked the other place to think again, as is our right. As the noble Lord, Lord Tyler, mentioned, last week there was in the other place an explosion of incontinence, with one honourable Member calling our vote “a constitutional outrage” by,

“superannuated, unelected, unaccountable panjandrums … They should learn their place”.—[ Official Report , Commons, 8/12/15; col. 880.]

It was pretty exciting stuff, I thought. Perhaps the honourable Member for Peterborough was looking for a job. The remarks seemed to show little understanding of the role and work of this House. It is sad that so many MPs seem to disappear by tea-time and so never get to see the work that this House does late into so many nights. There may be many bars where you can find a Member of Parliament, but sadly so few—present company excepted—seem to bother to come to the Bar of this House and find out what it is we really do.

Yet the other place has done its job. We asked it to think again, and it has—not once, but repeatedly. On five different occasions in recent weeks it has considered giving votes to 16 and 17 year-olds, and on every occasion it has rejected the idea, last week by an increased majority of 50. To me, that seems pretty decisive. Just as we have exercised our right, so the other place has exercised its right: it has clearly made up its mind and decided, which is why I say that we are now in an entirely different bed. If we continue to vote down the elected Commons on a matter of the franchise, it is likely to be seen at least as petulance on our part, and more likely as being partisan and deliberately provocative. What part of a 50-strong Commons majority do we not understand? This House has defeated the elected Government on 69% of all votes in this Parliament—more than two in every three votes we have taken—and now we claim rights over the franchise. We cannot go on down this road.

Photo of Lord Cunningham of Felling Lord Cunningham of Felling Labour 4:15 pm, 14th December 2015

I agree with the last point which the noble Lord made. I do not think your Lordships’ House can continue in this way, especially when the report of the Joint Committee on Conventions, Conventions of the UK Parliament, was accepted unanimously, including by the Liberal Democrats. Perhaps the noble Lord might reflect that we are coming to the time when this House, on a simple Motion, should be invited to endorse the conventions of the United Kingdom Parliament again.

Photo of Lord Dobbs Lord Dobbs Conservative

I am grateful to the noble Lord for that fascinating point. So much has already been said about how we should not be chopping our constitution into pieces in a piecemeal fashion. That is something that I think the whole House, including this side of the House, should consider very carefully.

Do we today want to add weight to the views of those who regard us as unaccountable panjandrums—the unwashed, the unelected? Where will that leave us? It would be like passing around the rope to those who want to hang us. Ultimately, matters of the franchise have to fall within the privileged remit of the Commons, just like matters of finance, as matters for those who have been elected with a duty to decide. In my view, we would be overstretching our rights and certainly overstretching our wisdom if we were to take this matter further. This is one barricade we should not build. I will continue to support the cause of young people, but I cannot support this amendment. The referendum is waiting; we should get on with it.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, there are many reasons for supporting the Government today, all of which were given by the Minister, but I have to say to the noble and learned Baroness, Lady Butler-Sloss, that I do not agree that financial privilege is a reason to support the Government. It is an obscure subject, and I commend to the House the very helpful paper published by Dr Meg Russell and Mr Daniel Gover of the Constitution Unit of UCL in March 2014.

Financial privilege did not prevent the other place from addressing the merits of this House’s amendment; equally, the fact that financial privilege was asserted by the House of Commons after the certification by the Speaker does not prevent the noble Baroness, Lady Morgan, from bringing forward her amendment in lieu. It does not prevent this House voting on the merits of the amendment—or, as I see it, its lack of merit.

As I understood him, the Minister accepted that that is the case. The Constitution Unit paper concludes on page 13 that,

“it is not considered contrary to the convention for the Lords to respond to financial privilege with … an amendment in lieu … for as many rounds of ping pong as it wishes”.

The normal rules of ping-pong apply. Therefore, financial privilege is a distraction rather than being central to this debate. That is not to dispute the supremacy of the elected Chamber, especially on the issue of the franchise, but that is a different matter. For the reasons given by the Minister, I shall be supporting the Government in the Division Lobby.

Photo of Lord Higgins Lord Higgins Conservative

My Lords, I intervened earlier, and I would like to take up the point I made in that intervention in a moment. I begin by saying a little about the substance of the proposal about votes at 16. I remain of the view, as does my Front Bench, that this is an inappropriate vehicle to carry out such an important constitutional change. The danger is that we have had a precedent of changing the franchise in the Scottish situation, and if we were to persist and succeed on this issue this evening, it would be yet another precedent. That would prejudice a longer-term, overall survey of what we ought to do about the age at which people are entitled to vote.

Having said that, if one looks back to 1969, which is the last time we debated it, on that occasion there was very widespread consultation. If we were to have another Bill on the issue, there would have to be widespread consultation. On this occasion, to the best of my knowledge, there has been virtually no consultation whatever. Back in 1969, when the issue had been widely consulted on, I said to my secretary, “If I get a single letter”—at the time, I had 100 letters or so a day—“asking me to give the vote, I will vote for it”. I did not get a single such letter.

Nowadays, we get thousands of emails sent to us. I have not had a single email from someone in this age group saying, “I am a highly intelligent, very politically motivated person”, or even, “I voted in the Scottish referendum”, and “I would like the vote”. I have had no such representation. I believe that this is being generated inside the House itself.

I turn to financial privilege, which has been raised. I totally reject what the noble Lord, Lord Tyler, said: that this is somehow a massive conspiracy suddenly cooked up in the other place to override us, and so on. I do not think that is so. The procedure on financial privilege is well established. As my noble friend Lord Dobbs said, it has been used time and again. The reality is that if the Commons decides to reject something, as it has done very decisively on this issue several times, a committee is sent behind the Chair to look at the reasons why the Commons is rejecting the Lords amendment. That committee sits behind the Chair, it is advised by the clerks and not infrequently comes up with the proposal that it has relied on on this occasion. It is a quite normal process and in no sense a sudden new conspiracy. I am not at all sure about the point made by my noble friend on the Front Bench as to whether that is the only option that that committee has to put forward as a reason. I believe that, if it wished, it could put forward other reasons as well. But, normally, it comes up with a resolution as far as this is concerned.

What is happening is perfectly normal and not, as the noble Lord, Lord Tyler, suggests, in some sense a conspiracy. As my noble friend said a moment or two ago, we really have to consider very carefully whether it is appropriate to bounce the amendment back yet again. I believe that the answer very clearly is no, because the response that we are going to get at the other end is equally clear—it is going to be to reject whatever amendment the noble Baroness, Lady Morgan of Ely, puts forward. So the sensible course of action is to reject Amendment A1 and accept Amendment A. That would be an appropriate thing to do.

Finally, one might consider why there is such an enormous apparent division on this issue between this House and the other place on the age when it is appropriate to vote. This is not a partisan issue and not something where everyone has clear-cut positions. It is rather curious—but perhaps this House is more expert on grandchildren and the other place is more expert on children. They have clearly taken the view that they do not think that their children should have the vote at the age that is suggested. We should respect that view, go along with the amendment proposed from the government Front Bench and reject that put forward by the noble Baroness, Lady Morgan of Ely.

Photo of Lord Kakkar Lord Kakkar Crossbench

My Lords, my noble friend Lord Patel will recognise the advice given to all trainees in the craft specialties—that to be a good surgeon one needs to know how to operate and, to be a great surgeon, one needs to learn when to operate. So, too, one might presume that a Second Chamber, certainly one with the powers of your Lordships’ House, to be a good Chamber needs to know how to use its powers and to be a great Chamber needs to know when to use its powers for the maximum benefit of our fellow citizens, for the good of this Parliament and for the good of our nation.

We have heard important arguments on financial privilege. I have always understood that it is not the position of your Lordships’ House—and it probably has not happened this afternoon—that a decision of the Speaker of the House of Commons is criticised. Those are very important pronouncements, made as part of a considered and long-respected process. It is also difficult to argue that the other place has not considered this matter on a number of occasions and has reached the same conclusion: that at this point it does not wish in this manner to extend the franchise to 16 and 17 year-olds. Most importantly, it is a question of a referendum in a representative democracy. The people of our country send their representatives in the other place and, in that place, on the vast majority of occasions, to exercise their judgment on behalf of those who have sent them. On very few occasions, those elected representatives decide that they must seek the further advice of those who have sent them to the House of Commons by way of a referendum to help to guide the decisions that they will take on serious matters. This is one such occasion, and it seems completely wrong for the unelected but powerful second Chamber to keep on insisting to those seeking the advice of those who have sent them to the other place that the franchise must be changed. It seems completely logical that those who have responsibility in the other place for these matters seek the advice of those who have elected them—that is, the general election parliamentary franchise—and that your Lordships’ House, having I think quite rightly previously argued the case for extending the franchise, on this occasion respects the views of the other place and allows this matter to pass.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench 4:30 pm, 14th December 2015

I speak as one from these Benches who participated in the earlier discussions on the Bill, and my name was on the amendments debated in Committee and on Report which would have permitted 16 and 17 year-old citizens of this country to vote in the EU referendum that will be held before the end of 2017. I have not wavered from that view, even though my name is no longer associated with the amendment that we are now debating. I believe that the issue at stake in this referendum is of a sufficiently fundamental and long-lasting nature to justify the inclusion in the franchise on this occasion of 16 and 17 year-olds. As other speakers have said, the evidence from the Scottish referendum in 2014 supports the contention that that age group is well able to handle the privilege of voting thoughtfully and responsibly.

That said, while this House has the right to ask the other place to think again, it has the duty, in due course, to recognise the primacy in legislative matters of the other House. In this instance, with a substantial majority, we asked it to think again, and as we have been forcefully reminded this evening, it did so and, by a slightly increased majority, again rejected the amendment providing the vote to 16 and 17 year-olds. Had the Bill returned to this House in the normal legislative procedure, I would have supported calling an end to the process.

Unfortunately, the waters have been massively muddied by the frankly rather risible invocation of financial privilege which the Government chose not to waive but rather to endorse. Someone will need to tell me how the authorities in the other place regarded a measure which we rejected some weeks ago, which involved the expenditure of many billions of pounds, as not covered by financial privilege whereas this one, which covers £6 million—and I do not imagine that the Government have underestimated the figure—falls within it.

Photo of Lord Elton Lord Elton Conservative

It seems that to a lot of noble Lords constitutional language is a foreign language that is not easily understood. I shall put what the Commons have said into English. It is, “You have asked us to think again. We have thought again several times. We are not going to change our minds, so please don’t waste any more time”.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

Section 3 of Parliament Act 1911 states:

“Any certificate of the Speaker of the House of Commons given under this Act shall be conclusive for all purposes, and shall not be questioned in any court of law”.

That being so, the only amendment we can go back with is one that does not involve any financial element. Otherwise the House of Commons will repeat that statement and the exercise is pointless. I have had amendments turned down on financial privilege over far less money than we are talking about here.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

I shall continue, but I say to the noble Lord, Lord Elton, that I have agreed with him. I have already stated that if this matter had come back to this House in the normal legislative procedure, without the invocation of financial privilege, I would have supported the Government, so I think I have been very clear on that point.

Financial privilege has been brought into the matter. I regret it very deeply. Frankly, the arguments, as just read out to us, amount to the Red Queen’s argument in Through the Looking-Glass: “It’s so, because I say it’s so”.

What I think is arising in this debate is a kind of reductio ad absurdum of the use of financial privilege. We have to realise that by that £6 million yardstick, pretty well every piece of legislation that comes to this House could be ruled as being covered by financial privilege. There really are not many pieces of legislation, although I am sure that someone will provide me with chapter and verse if there are, that do not involve a cost as modest as that. That makes it difficult for us because it sets a precedent with far-reaching and damaging implications for the future work and role of this House. That is where I concur entirely with the noble Lord, Lord Cormack. I do not yield to him in any way in his love of this House and his desire that we should be able to do our work properly but, with the best will in the world, and for the reason that I have given about financial privilege, I am afraid that I will not be willing, in these circumstances and for that reason alone, to support the Government if a Division is called.

Photo of Lord Wright of Richmond Lord Wright of Richmond Crossbench

My Lords, I am sure that I am not alone in thinking that I have now heard sufficient argument so that, if the noble Baroness decides to test the opinion of the House, I am ready to vote.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, that was a short but valuable contribution to the debate. I am very grateful to the noble Lord.

Noble Lords:

Minister!

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, this has been an interesting and passionate debate. However, not much has been said about the amendment. I am grateful to the noble Baroness, Lady Morgan of Ely, for setting out the thinking behind the amendment in her name, but I confess that I am somewhat puzzled by it. I appreciate that she has done what she can to minimise the cost to the public purse, but unfortunately this has left the policy in a fairly odd place, as I shall endeavour to explain.

The amendment would entitle those over the age of 16 to take part in the election if they were on the register for parliamentary elections. It goes on to say that steps taken to register eligible persons shall focus on 15 year-olds who will be 16 at the time of the referendum, and shall use low-cost means such as emails. The amendment would not enfranchise all 16 and 17 year-olds; it would enfranchise only those 16 and 17 year-olds eligible to be on the register for parliamentary elections, known as attainers. The formula for working out who is an attainer is surprisingly complex. It is set out in the Representation of the People Act 1983. A young person is eligible to be on the register for parliamentary elections if they will,

“attain voting age before the end of the period of 12 months beginning with the 1st December next following”,

the date on which an application for registration is made—that is to say, a person who will turn 18 during the year beginning 1 December following the date of the application.

The practical upshot of this is that there is a significant cohort of 16 year-olds who are not eligible to register for parliamentary elections. Because the legal definition of “attainer”, which defines who is eligible to register, is pegged to 1 December, the number of people who can register changes over time, but it means that there is never a period when all 16 year-olds can register, nor is there a period when any 15 year-olds can register. Bizarrely, therefore, the number of 16 and 17 year-olds who could vote would depend upon the date of the referendum. The closer it was to 1 December 2016, the fewer young people could take part—until 2 December, that is, when almost all 16 year-olds would be eligible. For example, a young person whose 16th birthday was on 23 November this year—a date that noble Lords may remember, as your Lordships were debating the Report stage of this Bill—would be able to take part in a referendum held before 1 December 2016, but their friend whose 16th birthday was today, only three weeks later, would not be able to take part in a referendum held before 1 December 2016.

This quirk makes the requirement to focus registration activity on 15 year-olds rather perverse. We would be left in the situation of being legally required to encourage the registration of 15 year-olds, despite there being no legal mechanism to register people aged 15 and despite the fact many people currently aged 15 will not actually be allowed to take part in the referendum. This is not a way to encourage democratic participation. The rules here are complicated because they are not designed to determine who may or may not take part in an election. They are designed to ensure an orderly administration of the electoral register. This is a wholly different thing and in no way suitable as a basis for the franchise.

I have been challenged at various times during the course of this debate on how I would explain a voting age of 18 to a 16 year-old. To turn this on its head, how would one reasonably explain this formula to a young person who would turn 16 shortly before the referendum? They ask the question, “Am I allowed to vote?”. The answer would be, “Have you got a moment? I’ve got an algorithm here, and I may be able to give you an answer in due course”. That is not a satisfactory way to make law.

The Government’s estimate of the cost of lowering the voting age for the referendum is in excess of £6 million. Most of these costs are created by the need to change the systems to deal with the addition of new young people to the registers, to register those young people, and by the increased activity by counting officers and regional counting officers to accommodate these additional voters. Of course, the noble Baroness’s amendment avoids the first two of these costs: no new people would be entitled to register for the poll, and the registration efforts must be “low-cost”. I have already explained that some of this low-cost effort will be expended on 15 year-olds who are not eligible to take part anyway. However, the amendment still expands the franchise and so expands the cost required to run the referendum. Counting officers and regional counting officers will have to take extra actions to accommodate the increased franchise. They will need to print more ballot papers and send additional postal ballots, for example, and the lead campaigners are entitled to a mailshot paid for out of the public purse; clearly, expanding the franchise means printing and sending more material.

The Government estimate that this amendment would cost the taxpayer an additional £2.8 million or £2.9 million, depending on when the poll is held. This figure is made up of the additional costs of running the referendum—printing ballot papers and so forth—and the additional cost of a bigger mailshot for the designated campaigns. There may be further additional costs, such as those relating to awareness raising amongst newly eligible voters, which we have not included in our estimates. Obviously I cannot say whether this infringes financial privilege. That is an assessment carried out by the clerks in another place, under the authority of the Speaker. However, it is clear, with great respect, that in seeking to reduce the cost the noble Baroness has had to make some rather on-the-hoof assessments of the costs.

For the reasons I have endeavoured to outline, the Electoral Commission has advised that it does not support this amendment. The briefing makes very clear that it does not have a policy position on the voting age but that if the voting age is to be changed, this is not a sensible way to go about it. The Electoral Commission notes that,

“only a small proportion of 16-year olds are currently eligible to be included in electoral registers”.

The commission is also concerned about the provisions on registration. It wants to be free to use “proven methods” to contact young people, such as by post, and warns that although email is widely used, it is,

“not yet a well-established method of encouraging electoral registration”.

The amendment requires a particular focus on registering 15 year-olds, which the Electoral Commission says could,

“lead to a significant proportion of the newly enfranchised group not being targeted”.

Clearly, this amendment is a deeply unsatisfactory way to go forwards.

In conclusion, the role of this House is to scrutinise and revise legislation, to make amendments and to ask the other place to think again. I remind noble Lords that on many issues the other place has thought again. Indeed, I refer your Lordships to what was said by my honourable friend John Penrose. In introducing Clause 2 and the amendments, he said about the House of Lords that,

“I should begin by paying tribute to”,

the House of Lords,

“for their diligent and considered approach. For the most part, their scrutiny has been fruitful, and the Bill returns to the Commons improved in a great many ways”.—[ Official Report , Commons, 8/12/15; col. 865.]

The House made changes on a wide range of issues, including: the provision of information to the public; the designation of just one lead campaigner; the rules around donations and loans; putting a 10-week minimum referendum period on the face of the Bill; and other, more technical recommendations of the Delegated Powers and Regulatory Reform Committee. On every occasion, the Government and the other place stopped, listened to the arguments and did everything possible to accommodate the changes proposed.

This Chamber sent 46 amendments to the other place and only one has returned, so noble Lords cannot suggest that the Government have failed to listen. However, on this one issue when this House asked the other place to think again, the other place declined to change its position. Indeed, it has divided on the question of the voting age in one context or another five times since the Government were elected. Consistently, the other place has decided that the voting age should remain as it is. There can be very few issues on which the elected House has expressed such a clear view quite so many times in the short period that we have been in government. We should respect that decision. Debate and disagreement between the Chambers is a natural part of our system, but repeated stand-offs between the two Chambers are not good for the democratic process.

This is not a coherent amendment, and that, of itself, is a reason for rejecting it. However, I believe that the vast majority of your Lordships will be concerned for the reputation of this House. By gracefully accepting our limitations, that reputation will be enhanced. This is not the way to make law. We should accept what the other place has so clearly said.

Photo of Baroness Morgan of Ely Baroness Morgan of Ely Opposition Whip (Lords), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Wales) 4:45 pm, 14th December 2015

My Lords, we believe that we have challenged the question of the cost of the amendment. We also believe that our focus on targeting 15 year-old attainers does not preclude the targeting—through, in particular, work in schools—of 16 year-olds who currently do not come under the definition of attainers.

I make it clear to the noble Lord, Lord Kakkar, that the decision of the Speaker and the Clerk is not being questioned. However, we continue to want an answer on the issues of transparency and the minimum thresholds for when financial privilege, which can and will severely curtail the power of this Chamber, can be invoked. However, we accept the point made by the noble Lord, Lord Pannick, that this does not stop this House dealing with the merits of the amendment. We believe that there is an appetite in the country for the young to become more engaged in political debate. We believe that they are more equipped than any generation in history to become involved at the age of 16 in determining the future direction of their nation.

Young people are the future of this country. This is their one chance to have a say in the country’s relationship with the EU. It is an exceptional vote. We need to reach out to a new generation of voters to demonstrate to them that we have faith in them and that we respect their opinions. We have not been convinced by the arguments put forward by the Minister and we therefore wish to test the opinion of the House.

Division on Motion A1

Contents 246; Not-Contents 263.

Motion A1 disagreed.

Division number 1 European Union Referendum Bill — Commons Reason

Aye: 244 Members of the House of Lords

No: 261 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Motion A agreed.