Moved by Lord Young of Cookham
6: Clause 2, page 2, line 20, leave out “As soon as reasonably practicable”Member’s explanatory statementThis amendment and the amendments at page 2, line 26 and line 38 ensure that a draft Order in Council implementing the reports of the Boundary Commissions must be submitted to Her Majesty in Council no later than four months after they have all been laid before Parliament unless there are exceptional circumstances.
“As soon as reasonably practicable”.
This refers to the requirement for Ministers to lay the draft Orders in Council giving effect to the recommendations of the Boundary Commission reports. Without repeating those arguments, I will say that this lack of precision could enable the Government to delay implementing those recommendations, thereby negating the objective of the Bill, which is to put this issue out of reach of political mischief.
We debated this further in Committee in relation to my amendment to require the Order to be laid within three months, in my case, and in a more exacting six weeks in a similar amendment from my noble friend Lord Cormack. The principle was supported by all those who spoke, and my noble friend the Minister made an emollient reply while reiterating the Government’s preference to leave the words as originally drafted. We had further discussions, as promised, in the interval between Committee and Report, the outcome of which are Amendments 6, 7 and 8.
I am grateful to my noble friend the Minister for listening and then seeking and ensuring collective agreement to the amendments. They are a compromise and, like all compromises, each side ended up with slightly less that they would have liked but enough to be satisfied with. May the negotiations on the EU treaty have a similar outcome.
Amendments 6 and 7 make changes to Clause 2 and provide that
“a draft Order in Council implementing the reports of the Boundary Commissions must be submitted to Her Majesty in Council no later than four months after they have all been laid before Parliament unless there are exceptional circumstances.”
This is in addition to
“As soon as reasonably practicable” after the reports have been laid before Parliament, so it is a sort of backstop.
My noble friend persuaded me that there should be some elasticity in my original three months, and this updated amendment provides for a four-month limit. The period of four months is deemed by the Cabinet Office to be sufficient to allow the necessary work in drafting the Order in Council bringing the recommendations of a boundary review into effect to be completed. It also provides a measure of flexibility to ensure that a meeting of the Privy Council is held during the specified period within which the Order must be submitted because, at certain times of the year, it does not meet regularly.
My noble friend also persuaded me that we needed an “exceptional circumstances” clause to deal with, for example, a global pandemic or the death or prolonged illness of the sovereign, when it would not be feasible to submit the Order. Without this clause, if those circumstances arose, it would not be possible, without further primary legislation, to lay the Order once the circumstances returned to normal.
Amendment 7 inserts new provisions into Section 4 of the 1984 Act to provide that
“If the draft of an Order in Council is not submitted … before the end of the four month period, the Secretary of State or the Minister for the Cabinet Office must lay one or more statements before Parliament … specifying the exceptional circumstances.”
This regular reporting requirement would prevent any delay being quietly swept under the carpet.
Amendment 8 inserts new subsection (7A) into Section 4 to define “sitting day”, which, surprisingly, means:
“a day on which both Houses of Parliament sit; and for that purpose a day is only a day on which a House sits if the House begins to sit on that day.”
I hope I have explained the background to the amendments as well as their key details. My noble friend the Minister, whose DNA is all over the amendments, will be able to answer any detailed questions that arise during the debate. I beg to move Amendment 6.
My Lords, I will be brief, taking full advantage of the speech of the noble Lord, Lord Young of Cookham, whom I wish to congratulate on bringing this matter to the attention of the Committee and, indeed, persevering with it to the extent that we now know that consensus has been achieved. In that respect, it would be only right and proper to thank the noble Lord, Lord True, for being constructive in these discussions. The noble Lord referred to the noble Lord, Lord Cormack, who certainly deserves a mention in dispatches as having been a very fervent supporter of the principle, albeit with a different figure in mind.
The mischief that this amendment seeks to address is the fact that, under the previous legislation, the Government had what one could reasonably describe as an unfettered discretion, which has now been substantially removed. The consequence is that the onus will rest with the Government to establish whether or not the exception that is contained can be fully supported. I venture to suggest that the Government—any Government—will find it a lot more difficult to defend exceptional circumstances that would have had reasonable practicability.
My Lords, I am delighted to welcome this amendment and to add my name to it. I can also be brief because of the excellent speech by my noble friend Lord Young of Cookham. I strongly supported the three-month provision in Committee, and I welcome this amendment, because it keeps the Conservative Party’s hands absolutely clean and above board. I make no apologies for reminding the House, as I did in Committee, that there have been only two occasions when Boundary Commission reports were abandoned: one was the disgraceful episode involving Jim Callaghan’s Government, who scuppered the report; and the other was a rather grubby move by the Lib Dems in 2011 to scupper the Boundary Commission report then. That was done purely out of spite because they had lost the PR referendum.
Enough of going over old bones: this now means that this Conservative Government will deliver on the commitment to make sure that Boundary Commission reports are presented automatically within four months unless there are these exceptional circumstances. My noble friend Lord Young cited a couple; they do seem to be rather serious and very exceptional circumstances. I will be grateful if my noble friend the Minister has got any more examples, but they do seem to set a standard that it would be very exceptional circumstances indeed before a Boundary Commission report did not proceed. Therefore, I welcome this compromise and I commend it to the House.
My Lords, I certainly support this amendment; without it the Bill would have been based on a false prescription
Repeatedly during the passage of the Bill, we heard from Ministers that through it, Boundary Commission proposals can be brought forward without political interference. The dreadful word “automaticity” entered our vocabulary —or was refreshed—repeatedly. Under the system prior to this amendment, which I hope will pass, there certainly was not automaticity; there was automaticity “up to a point, Lord Copper”. An automatic car goes up through the gears without any interference from the driver. In the case of this Bill, the Boundary Commission proposals could move forward seamlessly over the first few hurdles, but at the point where the Order in Council had to be presented, that involved the driver, who, in this case, of course, is the Minister. The amendment tabled by the noble Lord, Lord Young, deals with that problem to a considerable extent—not quite as far as far as I would have liked, but there we are.
I congratulate the noble Lord, Lord Young. I reread his Committee stage speech and it really was masterly. The Minister, in fairness, realised this and all but said, “game, set, match and tournament” when he was winding up. Of course, we still do not quite have automaticity, and the part of the amendment that maybe I should have put down an amendment to and do not feel too happy about is that the four-month requirement for the laying of the Order shall proceed
“unless there are exceptional circumstances.”
In his speech today, the noble Lord, Lord Young, was all too aware that the validity and strength of this amendment depends to a degree on what is meant precisely by “unless there are exceptional circumstances”. The Minister said that they would be things like the Covid crisis. No one would deny that that is an exceptional circumstance but of course, as far as I can remember in my political life, whenever there are exceptional circumstances of anything approaching that level, emergency legislation is immediately introduced. Among other things, as with the Covid legislation, this sets asides all sorts of aspects of normal political behaviour. It postpones local elections. You cannot get anything quite as interfering in the normal processes of democracy as postponing local elections.
I am quite certain that if exceptional circumstances of the sort the Minister is envisaging were ever to take place and emergency legislation were required, it would be easy to insert a provision stating that the four-month rule must be overruled. I really see no need to put in the Bill the phrase “unless there are exceptional circumstances”. It may have been one of the compromises that the noble Lord, Lord Young, acknowledged are necessary when parties are involved in discussions, but the Minister really does need to address this point when he winds up. Can he please list the exceptional circumstances the Government have in mind and are worried about? In each case, can he give me an example of when it would not be necessary to introduce emergency legislation? Any emergency legislation could easily deal with this issue—I do not think it is a problem, but it is addressed in the Bill—by allowing this “exceptional circumstances” exemption. I look forward to hearing what the Minister has to say about this, because I think it is a weakness in the amendment.
My Lords, not for the first time I find myself very much in sympathy with the points made by the noble Lord, Lord Grocott, who always contributes sage and sensible comments to debates on constitutional affairs.
I would like to begin by congratulating and thanking my noble friend Lord Young of Cookham. By accident, my amendment went ahead of his in the debate in Committee, but he was the one who did all of the work and he made a most impressive speech, as the noble Lord, Lord Campbell, said a few minutes ago; he has also been foremost in the negotiations following the debate. It would be churlish—because my noble friend Lord True was effectively replying to my amendment— not to thank him for what he said and what he has subsequently done.
I do not want to enter a discordant note, but I was tempted, as I said to my noble friend Lord Young the other day, to put down an amendment on the timing. I am very disappointed that it is four months. My noble friend Lord Young suggested “three months”, I suggested “six weeks”. I would happily have compromised, but I think four months is a shade long and I would like a brief explanation from my noble friend Lord True as to why he felt he had to go to that far.
The noble Lord, Lord Grocott, talked about exceptional circumstances. Of course, I accept that there are certain very sad and exceptional circumstances—one of which my noble friend Lord Young of Cookham referred to—but “exceptional” really has to be exceptional. I remain, always, suspicious of the Executive, from whichever political party they come, and I am always, first and foremost, a Parliament man. We have at least got a better outcome that we had in the original Bill. I am grateful for that, and I very much echo the words of my noble friend Lord Young of Cookham, who said there is great virtue in compromise. Of course there is, and may this indeed be a lesson to those who are currently conducting the most important negotiations in which our country has been involved for a very long time.
My Lords, before I comment on this amendment, can I pick up on what two noble Lords have said? When I spoke in Committee, I referred to automaticity and its derivation in this particular context. The noble Baroness, Lady Hayter, pointed out that the trade unions had got there first. I have mentioned to her since that, while we were in Committee, I was doing a search on the word “automaticity”, as was one of my noble friends, who managed to come up with an even earlier use of it. Shall I say, he was “cycling” through the web, which may indicate who found this wonderful piece of information. It is a study of the
“Effect of adenosine on sinoatrial and ventricular automaticity of the guinea pig”.
My noble friend Lord Blencathra talked about the years 1969 and 2011. Of course, he missed out 1983. I know that he, like the noble Lord, Lord McLoughlin, does not have a direct interest in 1983, but it affected some of us very strikingly and was the third occasion when this occurred.
I welcome this amendment, because in effect it achieves a declaration of full time. When this legislation originated, there were no timescales in it. I pointed out in Committee that the 1986 legislation introduced the first timescale, which was not that useful because it just said when the reviews would start, which was wonderful, but it did not say when they would finish, giving no timescales whatever. In the process of legislation we have now seen, each different process has a timescale of four months.
However, like my noble friend Lord Cormack, I would like to have seen a much briefer timescale, because the amount of work involved is overdone. Here I might correct myself and apologise, because in Grand Committee I said:
“As the noble Lord, Lord Young, has said, it is just 27 lines with vast quantities of pages thereafter. The argument made to me on previous occasions was”— this is in relation to the need to prepare the orders—
“‘Well, the maps have to be prepared; we have to ensure that we have’”—[Official Report, 8/9/20; col. GC 180-81.]
got them complete. I have done some research on these orders since and, in fact, there are no maps, so I apologise for misleading the Committee. I thought you would need laptops, websites, et cetera; in fact, all you need for the orders is a photocopier, because you lift it straight from the reports of the Boundary Commissions, which give the details of the wards.
On the question of returning officers, all you need is a list of them. I can stand here now and say that there will be two constituencies in Richmond borough and therefore who the returning officer will be. Some 90% of all returning officers can be identified now. It is almost the reverse of the game “Pointless”, where in one round they give you a few letters and you have to fill in the blanks. In this process, in relation to returning officers, it is only in those constituencies which cross borough boundaries where you have to wait until the final decision. As I say, I know how many there will be in Richmond, Bristol, Manchester or wherever, give or take one or two constituencies.
There is justification for this and I hope, as my noble friend Lord True has identified, that that is the maximum necessary period. It should be possible to do it in a shorter period. As I think a number of Members know, I had discussions with him because, as well as this issue about the end of the process, the noble Baroness, Lady Hayter, identified on Second Reading the question of what happens if there is a general election. I tried to find the phraseology for an amendment which would be operable if all the reports had been received. Unfortunately, due to time pressures and other events, I was unable to find a satisfactory amendment, or else I would have done so, because this is another issue that has not been touched on at any point and could apply—and did actually apply in 1983, in those very circumstances.
Therefore, I regret not being able to put down an amendment. I accept and welcome this amendment, but I hope there will be recognition that the vast majority of these processes are not lengthy, complicated and unnecessary post-drafting processes. The vast majority can be undertaken at a much earlier stage.
My Lords, the noble Lord, Lord Hayward, has brought some very important, practical questions to your Lordships’ House this afternoon. I hope the Minister will be able to reply to them. The noble Lord speaks with a great deal of experience and expertise on these issues. It is significant that he has done the research to spot some potential difficulties.
In the meantime, I am full of admiration for the noble Lord, Lord Young of Cookham. We have known each other for many years and I have a huge amount of respect for his experience of the way in which ministries, Whitehall generally and the House of Commons and House of Lords operate. He has almost unique experience. It is interesting that so many distinguished former MPs and Ministers have contributed to the development of this amendment at all stages, some of whom spoke again this afternoon. I wonder whether the noble Lord, Lord Young, who must be one of the best experts to tell us about what happens behind the scenes, is wholly confident that the amendments he is now promoting, as he said, put these matters out of reach of political mischief. If they are totally out of reach of political mischief, we will be all be relieved; if he is confident of that, I take his word as very persuasive.
However, I take seriously the issues originally raised by my noble friend Lord Campbell of Pittenweem and then referred to by the noble Lords, Lord Grocott and Lord Cormack—quite a trio. They were asking what exactly the exceptional circumstances were that would permit any return to a more lackadaisical approach to the timing of the tabling of these proposals from the Boundary Commissions. If the Boundary Commissions are, as the noble Lord, Lord Hayward, just said, absolutely specific and there is no room for manoeuvre for Ministers or the House of Commons, surely it should be a much smoother operation than is implied here, even in exceptional circumstances. I hope the Minister will explain in his response exactly what he has in mind.
We should pay tribute to the Minister. It is always a mark of a good Minister and a listening Government when there is a move between Committee and Report. There has been a move; the Government have accepted a change here and we should all welcome that. It is a sign of a Government who are prepared to think again, and that must be healthy.
It also indicates that this Bill is being improved in your Lordships’ House. I know there were some Conservative Members who thought it was rather inappropriate for the House of Lords to make any changes to a Bill that dealt specifically with elections to the other place. As a former Member of Parliament, I take exactly the opposite view; after all, there is a degree of self-interest at the other end of the corridor which we hope at this end we are largely able to avoid. We have a greater degree of impartiality in that respect.
As a result of two Divisions and likely support for this amendment, we now have some changes that will undoubtedly have to be considered in the other place. It is very healthy that MPs be asked to think again about these issues. As was mentioned in a previous debate, there is already substantial Conservative Back-Bench rethinking on the important issues of the 7.5% quota tolerance in preference to 5% and on the 10-year review period. I therefore hope that the fact that there is now government support for a government change to their Bill will be taken as an indication that our role in this House is to make sure that this Bill is improved before it goes back to the other place.
My Lords, we do not need to detain the House on an amendment where everything has been said and has been said by everyone. I simply applaud the Government, as we have just heard, for seeing sense on this amendment, which answers one of the two fundamental issues which concerned us about moving from a final parliamentary sign-off towards automaticity—that is, the ability of the Executive to delay the implementation of the Boundary Commissions’ plans, despite having handed effective authority to the commissions to put those plans into law. Without this amendment, no one, neither the commissioners nor Parliament, could have forced the Government’s hand had they chosen to delay.
I retain one concern, which is that retained by the guinea pig—not the guinea pig, the noble Lord, Lord Hayward, who obviously gets his feeds on automaticity even faster than I can. The issue he raised about what might happen should the Government decide to call an election during that four-month period should continue to concern us.
I had assumed that “exceptional circumstances” meant that, but that in itself is quite worrying. As my noble friend Lord Grocott and the noble Lord, Lord Cormack, have said, we need more explanation about what exceptional circumstances are—putting aside Covid because, as my noble friend said, that would be dealt with in another way. Given that the Government are committed to repealing the Fixed-term Parliaments Act, which puts the decision back into No. 10, there must remain a worry that a difficult boundary review could somehow be circumvented. The Minister needs to allay these fears which, as he has heard, are from across the House.
The issue of the time cap introduced by this amendment was a major concern to us. It was not the major one for the Constitution Committee—we will come on to that shortly in Amendment 11, about moving to automaticity—but it was certainly one of our two major concerns. The fact that the Government have accepted and even put their name to the amendment means that it would be churlish for me not to say that we support it too.
My Lords, I thank all noble Lords who have spoken in the debate. The House will not object if I say first that I thank and, indeed, congratulate my noble friend Lord Young of Cookham. Whenever I hear him speak in your Lordships’ House, I realise how much I have to learn in responding to your Lordships at this Dispatch Box. He has done a service to this House and to the electoral system, along with others who have raised this point. He was also skilful enough to get into a debate about Orders in Council and aperçu on the EU negotiations, which I do not think was strictly germane—my noble friend Lord Cormack followed on that—but I also agree with his sentiments there and hope very much that they will be translated into the languages of all 27 nations of the European Union.
The Government were happy to accept this amendment. The case was clear. The Government’s intention is to put beyond reach the idea that there might be unconscionable delay in laying these orders. It is of the utmost importance to us that it should not be felt by anyone that Parliament or the Government should have the opportunity to interfere politically in that way. I was grateful to have the opportunity to discuss with my noble friend Lord Young, other Members of the House and, indeed, the noble Baroness opposite the points raised. The noble Baroness has been very gracious and I greatly appreciate the courtesy with which she withdrew the first amendment and responded here. We may not be in agreement for all of today, but I appreciate that response.
I think there is widespread agreement and welcome for this. Therefore, I do not need to detain the House at great length. One or two points were raised about a Government calling a general election. Obviously, at the moment the rules around a general election are controlled by the Fixed-term Parliaments Act. So long as that obtains, we are legislating in that light. As far as the future is concerned, no doubt points have been put on the table, privately and publicly, which may be considered. There would always be a difficulty if there was suspicion in legislating on the matter. I am here to talk about future legislation, but the example of 1983 shows how difficult it would be to prevent a general election in the period before orders had been laid. That is something that people would have to wrestle with. The Government have no intention of seeking a general election. No Government should seek a general election to frustrate the presentation of these orders to a meeting of the Privy Council. The whole political world would deprecate that action and any Government that sought to do it would not be rewarded by the electorate.
Two other major points were raised. First, why is the time limit so long and why is it four months? My noble friend Lord Cormack suggested six weeks. The original amendment was three months. We believe that there has to be a prudential element in the legislation. There are two elements here. The first is the period of four months. My noble friend Lord Hayward said that things could be done much quicker: you could just photocopy something. I say, with respect, that the legislation is not prepared by photocopying other documents. Even if that were the case, we cannot legislate for the shortest possible time if we are imposing a time requirement. We have to go for a prudential time and that includes, for example, the need to accommodate the potential irregularity of Privy Council meetings, as well as the preparation time. In discussion and reflection and with the wish to place a time limit in the Bill, which the Government agree is the right thing to do this matter having been raised—it was not something that occurred to me before it was raised in Grand Committee—we believe it better to have the prudential element. A four-month period would surely accommodate anything that might arise in normal circumstances. Secondly, there should be a provision for exceptional circumstances. I will come on to this shortly.
I remind the House that there is an implied misunderstanding of how my noble friend’s amendment will operate. The primary legal obligation that remains in this amendment is to submit an order as soon as is reasonably practicable after the four reports are laid. This is certainly not an invitation from this Dispatch Box or anywhere else for anybody to be lackadaisical—to pick up a word used. The four-month period is a deadline to help ensure there is not deliberate, unreasonable delay. The Government would be in breach of a legal obligation if they submitted the order only at the end of four months when it was reasonably practicable to have done it sooner. It is important to put that point on the record. The primary expectation of this Government, all future Governments and this Parliament in passing this legislation is that all those involved should present the material as soon as is reasonably practicable and certainly not later than four months.
I believe I said something about “exceptional circumstances” at an earlier stage. In case I did not, I will say it now. If we did not have an exceptional circumstance element in the provision, were it not possible for whatever reason—and my noble friend has given one—to deliver this in the four months then it would need full-scale primary legislation to overcome the failure to meet the four-month time limit. The noble Lord, Lord Grocott, invited me to give a full list of the exceptional circumstances envisaged with explanations for each one. The Government do not envisage exceptional circumstances being the norm. I point out that not all circumstances are foreseeable. The noble Lord said that it goes off like an automatic car—you start it and it moves up through the gears. My wife would rather like that her automatic car would move up through the gears at the moment. Not every contingency in life is foreseeable. Some very exceptional things, such as a war—God forbid—could arise.
I am not going to follow that invitation, not because I do not wish to help the House, or assist Parliament further; it is simply that legally I am advised that giving a whole series of examples would risk people in the future erring on the long side as well as the short one. I repeat that our expectation is that this Government and this Parliament—and, I hope future Parliaments—will ensure that they are presented as soon as is reasonably practicable and certainly within four months. The exceptional circumstance would arise only in the rarest and most undesirable cases. In those cases, the amendment provides an extra requirement that Ministers would have to come repeatedly to the Dispatch Box, in both Houses, to explain their actions in being dilatory. Were the circumstances not exceptional, and the matter concerned not grave, that would be a humiliating and devastating admission of dereliction of duty. I am sorry that I cannot go further on that, but I hope that the House will accept my assurance on this Government’s intention and my hope that future Governments would operate in the same way.
To conclude, I hope that, in backing the amendment, the Government helped to bring more certainty and confidence to your Lordships’ House, and to electors, that the recommendations of the Boundary Commissions will be implemented without political interference or unnecessary or undue delay, as soon as practicable. I hope that noble Lords will, therefore, be able to support the amendment. I thank all noble Lords who have spoken, in particular my noble friend Lord Young of Cookham. I urge noble Lords to support the amendment that he has put before the House.
I have received a request from the noble Lord, Lord Blencathra, to ask a short question for elucidation.
My Lords, this is not a question as such. I want to commend my noble friend Lord Hayward for mentioning the 1983 Boundary Commission review, which I intended to mention but clean forgot. That was implemented by the late, great Viscount Whitelaw of Penrith. He did it, even though it added large swathes of Lib Dem-held wards to his own constituency. In the by-election which followed his elevation to this place, I almost lost the seat because of that. As usual, Willie did the right thing. The Government are doing the right thing now and I commend them.
My Lords, I can be brief. I join the Minister in thanking all noble Lords who have taken part in this short debate. I suspect it is one of the more consensual debates that the House will have on the Bill. I thank noble Lords for their kind words about my role in the amendment. That approbation needs to be shared with the Minister.
Two issues arose in the debate: four months rather than three, and exceptional circumstances. It would be impossible for me to improve on the excellent explanations on both issues given by my noble friend in his reply to this debate so, without further ado, I beg to move.
Amendment 6 agreed.