Under the benevolent chairmanship of your co-Chairman, Mr. Benton, I spoke for about 20 seconds on this group of amendments before we rose at 11.25 am on Tuesday. We have indicated that we will seek to divide the Committee on amendment No. 18, but we will not get to that Division until after dinner because we must first deal with amendment No. 17.
To return to the thread, I was probing with amendment No. 17 because although all Members have enormous respect for the parliamentary draftsman, the meaning of subsection 1(b) is not clear, even after rereading it. Even if the Minister clearly explains what subsection 1(b) is intended to mean, I will still feel that the phraseology of the drafting is what is politely referred to as infelicitous. It is certainly unclear—I call it ''Yes, Minister'' drafting. The use of the word ''order'' in paragraphs (a) and (b) is worthy of the writers who provided the wonderful scripts for Sir Humphrey Appleby, the permanent secretary played by the late, great Sir Nigel Hawthorne, who was a wonderful actor. If he had read out such verbiage, he would have got a round of applause from the studio audience.
I hope that the Minister will listen to this serious point because his attention does not seem to be fully engaged. I hope that he will go back and talk to his advisers. If he cannot accept the proposal today, perhaps he will examine on Report whether it is possible to replace clause 1(1)(b) with slightly clearer wording. That is all that I am asking for. I am sure that he will have a brief explaining exactly what paragraph (b) is intended to mean, but I do not think that an ordinary member of the public would understand it at face value. It is confusing. The word ''order'' appears far too many times in the provision. It appears three times: twice with one meaning and once with another.
As I have said on many occasions, I am a strong supporter of the Plain English Campaign, with which I have been working for years. The Government, and those who advise them, should always look at the models provided by the campaign. I hope that the Minister will understand that this is a genuine probing amendment. I am trying to be constructive and do not wish to detain the Committee for long, but I think that we could reconsider the provision and produce clearer wording. I did not propose an alternative because I was genuinely mystified about precisely what it was intended to mean.
I am not a lawyer, and, like the hon. Gentleman, I read the paragraph with a completely blank stare and little understanding of it. However, he may be wrong on one point. Laws by their nature cannot be written in plain English. He is a lawyer and must know that the language used by the draftsmen must encompass specific legal terms. Asking for the provision to be written in plain English is not particularly relevant.
I am grateful for the hon. Gentleman's support. It is helpful to know that he is looking at the provision as blankly as I am. The fact that somebody from the Government Back Benches is similarly mystified suggests that I may be on to
something, and it may help to persuade the Minister that the provision could do with rewriting.
I disagree with the hon. Gentleman, however, to some extent. In the eleven and a half years that I have been in the House, I have worked with the Plain English Campaign on quite a few occasions. I have looked in particular at the kind of proposals that it has made for improving some of the most complex legislation that this House has passed—that was many years before I became an MP. When I was working as a lawyer, one of the fields in which I specialised for a number of years was particularly arcane and involved some of the most complex statute law in the Consumer Credit Act 1974. An academic of great renown, Professor Goode, drafted the original Act, but, from the minute that it was introduced in 1974, it was criticised by many practitioners for being too complex. For many years before I became an MP—from the time when I first studied law in the mid–1970s—practitioners were saying, ''Statutes like this have got to be drafted more simply if they are going to be understood by the public.''
Of course, the hon. Member for Glasgow, Cathcart is right. There are certain words that have a clear legal meaning, and, as a lawyer, I want to see those words used correctly. However, there is no reason why minds should not be concentrated—that it what Committee stages are all about—on making the law as clear as possible, while not ignoring the significance of legal terms of art.
Does my hon. Friend agree that one of our concerns, inasmuch as plain English is patently not being used, relates to the cumulative effect of our suspicion that the Bill has arrived at the worst moment and is being rushed through as a result of the guillotine motion that we have regrettably agreed, when the provisions could have been incorporated into earlier European legislation this year? Perhaps plain English would have sorted that out and not created such an air of suspicion in the eyes of the public.
I agree entirely with my hon. Friend. He makes a valid point. As he knows, on Second Reading, my hon. Friend the Member for Stone (Mr. Cash) and I criticised the indecent haste with which the Bill was being rushed through. I have used that phrase before and I will use it again: the Government are trying to press ahead with the Bill with indecent haste.
My hon. Friend the Member for Galloway and Upper Nithsdale and I do not know how much pressure there was. However, I was certainly informed that there was great concern among those on the Government Benches—among Ministers and Whips—that there was going to be a huge legislative backlog this Session because of the pressure being put on those who were doing the drafting, particularly in Home Office and constitutional affairs matters. My hon. Friend will be well aware that there has been a huge raft of Home Office legislation in the past few years, both under the former Home Secretary—the now Secretary of State for Foreign and Commonwealth Affairs, the right hon. Member for Blackburn
(Mr. Straw)—and the current Secretary of State for the Home Department, the right hon. Member for Sheffield, Brightside (Mr. Blunkett). More Home Office Bills have been announced in the past few Queen's Speeches and considered in the past few Sessions than ever before. The number is at an all-time record.
The Government keep getting it wrong: the current Home Secretary has reversed almost everything that his predecessor introduced because it was clearly failing. This has placed a huge pressure on drafting. The Opposition can never tell how much pressure is being brought to bear, but all I can say is that we heard that the Government were very concerned about having to rush their legislation because there was too much pressure on drafting.
The Minister may or may not comment on this when he responds to the debate, but I hope that he will understand that we are genuinely trying to use this Committee as Committees should be used—to improve the legislation. That is why I said that the amendment is probing. I have not suggested my own wording to replace the paragraph, because I simply want the Government to reconsider it and return with something better on Report. I hope that I can at least get that point across to the Minister.
I do not want to labour the point, but surely the hon. Gentleman must accept, as a former solicitor, that there are many occasions in any legislation on which there must be a balance between plain English and legal accuracy, and that this may well be one such occasion? I am sure that my hon. Friend the Minister will shortly enlighten the whole Committee, and that we will know exactly what the paragraph means.
We wait to see. I will listen to the Minister with great interest, as he has an army of civil servants, which the Opposition do not have, to give him a brief. I agree that it is always a question of judgment. However, the hon. Gentleman is a member of the Government, albeit without civil servants to advise him, and I have sat on the Front Bench for several years and practise as a lawyer. If we are both mystified, that suggests that there may be a reason to reconsider the paragraph now that we have drawn attention to it in Committee, in the way that we are supposed to do in Committee, so that we end up with clearer and better legislation. The hon. Gentleman and I are trying to do our job so that we can persuade the Minister to talk to his officials and make the paragraph clearer. [Interruption.] The Minister says that he has got the point.
''If the Secretary of State makes an order under section 1 (the main order) he must also make an order under this section (the pilot order).''
I believe that the word should be ''may'' and not ''must'': making an order should not be compulsory. The Minister may say that the whole point of the legislation is that pilot orders are introduced only if
there is a main order. Before I tabled the amendment, I could see that there could almost be a credible case for it being compulsory rather than permissive. Clause 2(1) is much clearer than clause 1(1)(b), but it is worth probing the issue to get the Minister's explanation of it on the record.
My reason for tabling the amendments is to get the Minister to agree to reconsider the matter. We should always debate whether ''may'' or ''must'' is appropriate.
The hon. Member for Surrey Heath explained why he is concerned about the opacity of subsection (1)(b), and we have entered into the eternal debate about ''must'' and ''may''. In my experience, that debate always entails the Government insisting on ''must'' if the Opposition propose ''may'', and insisting on ''may'' if the Opposition insist on ''must''. It is one of the most sterile arguments in which we ever engage.
I accept that subsection (1)(b) may be more opaque than it would be in a perfect world. However, there is a necessary cross-reference between clauses 1 and 2 if one accepts the current architecture of the Bill. Will the Minister say why it is constructed in such a way as to have two separate orders in clauses 1 and 2? Why should there be a main order and a pilot order, one qualifying the other but dealing with essentially the same matters? Why should there not be a single order? If there were a single order, the cross-reference would not be necessary. However, if there are two orders, one needs the cross-reference, phrased in whatever way is most felicitous, and one needs the ''must'', otherwise there will be a provision for an election without the details of how it is to be conducted.
I have a brief question. I have read subsection (1)(b) quite carefully, and my impression—the Minister can tell me if I am wrong—is that it means that if a pilot order requires certain things, but another law says that we cannot do that, subsection (1)(b) has superiority. If that is what the provisions basically do, what exactly is a ''relevant enactment''? Subsection (1)(b) seems to say that if a pilot order says that we do things in a certain way and a particular voting system applies somewhere, and yet some other law or regulation would appear to conflict, subsection (1)(b) has superiority, so what is an enactment?
Previously I raised a point of order on which the Chairman was very helpful. What happens if the provisions conflict with the European convention on human rights? Frankly, the one thing that worries me is secrecy and voting. What do we do if we find that an order conflicts with the convention? Which has superiority? What about European law? One thing that I have been obsessed with over the years—hearing about all the European treaties coming through—is how they have superiority. It is said time and time again that European law is superior to that of the House of Commons. If we find that an order conflicts with the convention or with European legislation, does it apply and which has superiority? Am I right in my interpretation of subsection (1)(b)? I hope that the
Minister will say whether an order would be superior only to laws or whether it would be superior to the convention and to European law as well.
I want mainly to speak to amendment No. 22, but your guidance would be helpful, Mr. Cook, because developing the arguments about it would probably move us into a stand part debate. I do not know whether you would rather have all the contributions in one go or deal with the matter and then come back to stand part.
Fine, that is very helpful, Mr. Cook.
I always enter into such debates in Standing Committees by entering various caveats, but it becomes clear over time why that is necessary. I start by saying that I am not a lawyer and therefore cannot bring a legal mind to the problem. All that I can do is try to bring a bit of common sense. My hon. Friend the Member for Surrey Heath is right to suggest that the provisions are gobbledygook, and I hope that the Minister will say why it is necessary to have gobbledygook. It is always handy if ordinary people like me can pick up legislation and make sense of it. Some justification for this rubbish must be forthcoming before we can accept that it is necessary.
It is not quite that which concerns me now, however. Subsection (1)(b) uses the words
''in accordance with such provision made by order under section 2''.
I then turn to clause 2, which is about the pilot order and says:
''If the Secretary of State makes an order under section 1 . . . he must also make an order under this section''.
The thing that baffles me as a layman is that clause 1 says that the Secretary of State ''may'' make an order
''in the manner described in the order''
that he is just making, and then says that that must be done
''in accordance with such provision made by order under section 2''.
I am baffled because it will be possible to make an order under clause 2 only if an order has been made under clause 1, so the clause 2 order will be subsequent to the clause 1 order. Yet it will not be possible to make an order under clause 1 without reference to something that it will not yet have been possible to do—no order will have been made in the first place. It is mystifying. I am interested in exactly the point made by the hon. Member for Somerton and Frome, although it may be a matter for the clause stand part debate. Why must there be two separate orders?
I imagine that if two orders are made, they must be made one after the other. Two things cannot be done at the same time. Even lawyers cannot do two things at once, so one order will be made after the other. In that case, it seems absurd to provide in the order that is made first, ''You can't do the first thing until you have done the second thing; you can't do the second thing until you have done the first thing.'' If a layman can see the confusion there, I am amazed that the highly paid lawyers and civil servants and the absurdly higher paid Ministers who take taxpayers' money to make sense of these provisions come before us with a
conundrum that cannot be followed. I hope that the Minister will be able to explain the inexplicable.
I wonder why it is necessary for clause 2(1) to provide that the Secretary of State
''must also make an order''
and not, as amendment No. 22 would provide, that he ''may'' do so. Clause 1(1)(a) states that the Secretary of State may make an order
''in the manner described in the order''.
It seems to me that all the power necessary to say whatever needs to be said is contained in that provision: he may do it in the manner described in the order. Why, if that is so, is the word ''must'' needed? The first instance is not needed, if the Secretary of State ''must'' do things all over again. Surely to goodness, we should not say the same thing twice. Clause 1 provides for all the powers in clause 2.
If it proves helpful for the Secretary of State to make things a bit clearer by saying something else, let him do so, but I should have thought that the relevant provision should state that he ''may'' do so if he wants to, rather than that he ''must''. If he must make matters clear in clause 2, that makes nonsense of clause 1, which provides that he must spell them out.
The more I look at the Bill, the more I go round in circles; perhaps I have managed to persuade you, Mr. Cook, and the Committee about the silliness of the provisions. If anyone is tempted to take the view that I am talking nonsense, I am doing so only because I am describing what the Bill says. What is before us is nonsense, and I hope that the Minister can dig himself out of the hole that he has got himself into.
It may be useful if I explain why we have provided in the Bill for a two-order process: a main order under clause 1 and a second, piloting order under clause 2. Both amendments—and amendment No. 22 in particular—would remove the requirement for a piloting order.
The Secretary of State is currently consulting the Electoral Commission on the wider issues, and would make a main order after the consultation, setting out the region, regions or nations in which new voting techniques would be piloted. The main order would broadly set out the conduct of elections: whether they would be carried out by all-postal means, electronic voting or other means. After a decision to proceed, a supplementary piloting order would deal with the detailed provisions necessary to give effect to the principles of the main order. There will be more consultation with the Electoral Commission and others about the relevant mechanisms.
I sometimes think that no matter how hard the Government try, we cannot win with the Opposition on some issues. We have settled on the process in the Bill precisely because we wanted an opportunity for parliamentary scrutiny of the choice of region, regions or nations in the main order. The main order is, in effect, the headline that makes it clear that one, two or three regions have been selected. We have provided for
that to come back to Parliament for agreement by affirmative resolution.
Usually, in the case of local piloting, with which we are familiar, such mechanisms exist without provision for that degree of parliamentary scrutiny. This is a concession that reflects the strong views expressed by many in both Houses of Parliament, not least the Delegated Powers and Regulatory Reform Committee in the other place, which has often expressed strong views about certain matters being subject to positive resolution procedure. We felt that the provision would be of benefit and would be welcomed. I am sorry that it does not appear to have been.
If I understand the Minister correctly, he is asking us to agree that the affirmative resolution of the House and some form of consultation is a good thing. That is so, but one of the justifications for the two separate orders is that in clause 10 we shall be told that the clause 1 orders can be subject to debate in the House but that the details—the stuff that really matters and that will give rise to concern if it is made under clause 2—will not be considered by affirmative resolution. That is only half-hearted consultation.
I believe that this is a positive step forward for parliamentary scrutiny. As I explained to the hon. Gentleman, the law permits the Secretary of State, when piloting local innovative voting mechanisms, to make changes by order without reference to Parliament.
If the hon. Gentleman will bear with me, I shall explain two specific issues. First, there is precedent: all previous mechanism orders have not been subject to Parliamentary procedure. We would not want to burden Parliament with the weight, detail and complexity of the piloting order. However, the main headlines—the regions to be selected and the nature of the pilots—should be in the main order. There is great complexity in clause 2 on the piloting order and the measures that it would contain. It would not be appropriate, in my view, for there to be an affirmative resolution procedure for those aspects to be contained in the main order.
The Minister and I may differ on whether the detailed matters under the pilot order under clause 2 should be debated fully. However, can he tell me more about what the clause 1 order would comprise? Would it merely identify those regions or nations that are to be pilot areas, or would it also specify, in broad terms, the form of election that is to be piloted in those areas? Would it include any reference to the processes to avoid fraud that we debated on Second Reading and will debate again later in Committee?
The processes to avoid fraud are properly dealt with in the Bill proper. We shall come to them in later clauses. I confirm, again, that we envisage the main order being the headline outlining the regions or nations that will be selected for piloting, and whether the pilot is to be all postal, or by electronic voting and so forth. That has not occurred with local piloting under previous enactments. There was a lot of detail in the second piloting order—such
as appendices, the forms of nomination papers and requirements on the returning officers to publish statements of persons nominated—that we would not necessarily want to subject to the affirmative resolution procedure, as they could be exceptionally weighty tomes.
It is a concession that we should have a separate process to allow an opportunity to debate not just the Bill but the main order, so that all hon. Members can see—having gone through the process of consulting the Electoral Commission and considering the Secretary of State's decision as to which regions and nations should be eligible—that those matters will be contained in it.
I am quite sure that the hon. Gentleman will pursue similar matters at a later date. He is developing Confucius-like contributions on whether an order can take place before another, or whether they both have to occur at the same time. I am sure that orders can be dealt with simultaneously or separately, and he need not worry too much about that point.
While I am sure the Minister is right that it would be possible for two orders to be made simultaneously, would he recognise that if that is being contemplated, it would be possible to make it clear in the Bill? In the light of what I and my hon. Friend the Member for Spelthorne (Mr. Wilshire) have said, will he consider that further as he continues to look at whether the drafting can be improved?
I shall discuss with officials the sequence in which various orders will take place, but I do not believe that there is a genuine problem with the phrasing in the Bill.
In his assertion on amendment No. 17, the hon. Member for Surrey Heath complained about the drafting of clause 1(1)(b). I do not feel that that is especially complex. I hope that my explanation of the relationship between the two orders will clarify his understanding of that. I accept that in an ideal world we would have plain English in all legislation, but it is required to be thorough and complete, and sometimes that can lead to long and complicated sentence structures. Those are a necessity, as my hon. Friend the Member for Glasgow, Cathcart pointed out.
The hon. Member for Rochford and Southend, East asked whether I had any qualms about compatibility with the European convention on human rights. I have signed the statement that appears on the front of the Bill. In my view it is compatible, and I do not have any particular problems. I suspect that we shall disagree on that, but that is my understanding of the position. I do not believe that we are anticipating the piloting order to have any impact in relation to ''relevant
enactments''—a phrase that the hon. Gentleman raised. He wondered whether it would come up against any European directives, but we do not anticipate that, not least because electoral law is domestic law. I am afraid that in these circumstances I cannot send him down that particular avenue, but it was a perfectly reasonable point. With that explanation, I hope that the Committee will see that the amendment would not fit into the Bill, and I hope that the Committee will resist it.
I am grateful to the Minister for confirming, in response to my intervention, that he will take the matter back to officials. I am hopeful that he will return on Report with an improved draft. Although he prayed in aid one of the things that the hon. Member for Glasgow, Cathcart said, he did not really respond to the hon. Gentleman's initial point that the wording did not look clear. He pointed out, understandably, that there are times when legal wording must be used, but this is a pretty poor example.
The Minister said in a sotto voce comment earlier that he had seen much worse. So have I, but saying that there are worse examples of bad drafting does not make the wording good. If every parliamentary draftsman, however much pressure they might be under, actually began with the Plain English Campaign's guide in front of them and then considered whether there were any reasons why they should use specific legal phrases as a term of art or a convoluted sentence structure—to use the Minister's phrase—the process would be the right way round.
I hope that we will see a clearer revised draft. In his heart of hearts, even the Minister—his sotto voce comment made this clear—knows that using ''order'' three times in clause 1, including twice in one sentence, and the interlinking to clause 2, which my hon. Friend the Member for Spelthorne rightly referred to, is confusing. The drafting could clearly be improved.
In the light of the fact that the Minister has said that he will re-examine the matter, I will not press the amendment to a vote. As my hon. Friend said, there is also the usual debate about ''may'' and ''must''. I genuinely think that we can improve clause 1. The point is fairly small, but it is what Committees are supposed to do.
When my hon. Friend discussed the convoluted interlinking between clauses 1 and 2, I thought that he was on to an excellent point. When he was speaking, I was reminded of what Churchill said about Russia:
''It is a riddle wrapped in a mystery inside an enigma''.
That is a good way to describe how clauses 1 and 2 work together. I understand what the Minister says that the Government are up to, but I also understand the point made by my hon. Friend and the hon. Member for Somerton and Frome. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: No. 18, in
clause 1, page 1, line 10, at end insert
'and all the local authorities in the area covered by the pilot, and unless both Houses of Parliament have had an opportunity to
consider the views of those bodies and to debate the matter.'.—[Mr. Hawkins.]
Question put, That the amendment be made:—
The Committee divided: Ayes 8, Noes 9.
I beg to move amendment No. 19, in
clause 1, page 1, line 11, leave out subsection (3).
We want to explore what I would regard at first sight—I examined the legislation several times—as extraordinary and unusual wording. In my experience, it is pretty rare for any statute to say that something is immaterial, but to say that the timing of the consultation process is immaterial is especially rare. Conservative Members—my hon. Friend the Member for Stone (Mr. Cash) and I more than hinted at this on Second Reading—wonder whether the consultation is genuine. [Interruption.] I hope that I am not disturbing the hon. Member for Glasgow, Anniesland (John Robertson) too much. I am not sure whether he knocked over the water of the hon. Member for Stroud (Mr. Drew)—happily, he has recovered his seat.
I always watch the entertainment between the hon. Gentleman and the hon. Member for Glasgow, Pollok, whom we miss in this Committee, when they are in the Chamber, but I had not seen the double act between the hon. Member for Glasgow, Anniesland and the hon. Member for Stroud before.
However, now that we are all concentrating, my point was that we are genuinely worried about whether a real consultation is happening. On Second Reading last week, I expressed my party's grave suspicion that the process is all cut and dried. As I put it then, if in due course the Secretary of State for Constitutional Affairs in another place, or Lord Chancellor, or whatever he is calling himself by then, ends up announcing that the three pilot areas will be the three areas that Labour Back Benchers were dragooned into the Chamber to call for one after another—Scotland, the north-east and the north-west—we will know that, in the traditions of old Chicago politics, the fix has gone in.
I do not want to extend the debate on this clause more than I have to, but it should be pointed out that those Scottish Members who called for Scotland to be one of the pilot regions were certainly not dragooned—far from it. Every single one of us who called for that did so purely because we felt
very strongly that Scotland should qualify for such a pilot. It is not very fair of the hon. Gentleman to suggest that we were in any way forced to make those appeals.
I understand that the hon. Gentleman speaks for himself, as he always does extremely ably. He made an extremely good speech many parts of which, as I said when winding up, I agreed with, particularly his comments on the media. I have no doubt that he is genuine in his support for the pilot and his wish for his region, or country, to be one of the pilot areas. However, there is not unanimity of view on the legislation, as the hon. Gentleman will remember. We had passionate opposition to some aspects such as e-voting or, as he memorably put it, jiggery-pokery with gee-whizzery, from the hon. Member for Glasgow, Pollok. I am concerned that although Labour Members from the midlands were coming into the debate last week to speak against their area being a pilot, the Labour party was arguing for it where it thought that it might help its electoral cause. However, I respect the hon. Member for Glasgow, Cathcart as he knows, and I accept his intervention entirely.
We are concerned about any legislation that says that something is immaterial—in this case the timing of a consultation process. That is why we have sought to delete subsection (3) in its entirety. We know, as all the voluminous papers that the Electoral Commission has sent us confirm, that its consultation process is already under way. That is another example of what my hon. Friend the Member for Galloway and Upper Nithsdale referred to earlier: the indecent haste with which the Government are trying to ram the legislation through.
As an example of that, this Committee stage started within a week of Second Reading, ignoring the previous convention. With your longer experience in this House than mine, Mr. Cook, you will know that the convention, under Governments of both parties, has been always to have a clear parliamentary week after Second Reading. The Committee stage would never start until after that clear week. We should not therefore have considered starting this Committee stage until next Tuesday at the earliest. For much legislation, the period in between is much longer. It is quite common for there to be three or even four weeks after Second Reading before a Committee stage starts. But this Bill is being rushed through.
The Government also forced through a carry-over motion as a safety net, in case they did not get everything finished because they could not ram it through the other place, where they do not have a clear majority. They will have to try to win over the peers by force of argument, and I suspect that they will find that very difficult, particularly when peers who take an interest in such matters read the Hansard for Second Reading and the Committee. The Government will have grave problems. They probably rammed through the extraordinary carry-over procedure so that if they have not completed the Bill by the time that this Session ends, they will have a second go at it, a reserve, in another parliamentary Session. In my party's view, that is an abuse of parliamentary procedure. We
opposed the whole concept of carry-over when the Government introduced it and we continue to do so. I am sure that one day we will return to this Parliament operating as it traditionally has, without the Government having such things as carry-overs and all these guillotines.
My point is very important, and I stress that we are not probing; we feel strongly about the matter. The Electoral Commission should have had the opportunity to complete its consultation. In the immortal words of Magnus Magnusson on ''Mastermind'', ''I've started, so I'll finish.'' The commission has started, and it should have been allowed to finish before the legislation was proposed. Indeed, it would have been more logical and more consistent with what the Government said about the commission in our debates on the Political Parties, Elections and Referendums Act 2000.
The Electoral Commission should have been able to finish its consultation before the Bill was drafted, but for the Government to produce a Bill that says that it is immaterial whether the consultation takes place before or after enactment is an outrage—and I do not use the word lightly. The Minister's insouciance and charm is becoming well known. His is the acceptable face of constitutional outrage. He was doubtless given his present post so that he could act the part of the smiling assassin in the Commons, as does his noble Friend, the Secretary of State for Constitutional Affairs, in the other place. However, despite the Minister's insouciant smile and pleasant manner, he cannot disguise the fact that it is a constitutional outrage.
I asked the House of Commons Library researchers, to whom all hon. Members are enormously indebted, to find out what had been said about the Electoral Commission's role during the early part of 2001 in debates about the Political Parties, Elections and Referendums Act 2000. The Library sent me a briefing note with some extracts from Hansard. I was reminded that back in the good old days, the House sat for its traditional hours and until all the debates were over. I had the opportunity to speak in one of those debates.
At 11.58 pm on 8 January 2001, we were discussing how the Electoral Commission would operate. Among other things, I said:
''The Opposition have continually raised issues relating to the Act and its operation, and questions remain about the commission's membership.''
The Liberal Democrat spokesman, the hon. Member for Southwark, North and Bermondsey (Simon Hughes), as usual, spoke at much greater length than most other hon. Members. Indeed, I have remarked before to the hon. Member for Somerton and Frome that we should have a special time allowance—the Southwark, North and Bermondsey allowance—for such debates. Later in the same debate, the hon. Member for Southwark, North and Bermondsey said that
''questions concern its practical functioning from now on.''—[Official Report, 8 January 2001; Vol. 360, c. 834–838.]
In a memorable intervention in that debate, my right hon. Friend the Member for Penrith and The Border (David Maclean) described some of the provisions as ''stinking fish''.
If any of us had known that, only two years later, we would be faced with a Bill that said that, although the Electoral Commission was consulting on the matter, it would be immaterial whether the consultation had taken place before or after enactment, the House would have been staggered. If any of us had suspected that something like that might be contemplated, a Minister would have been put up to say, ''That will never happen.'' We did not raise that suspicion because we did not think that things would be quite that bad. However, I am in no doubt that if the House, including many Government Back Benchers, had been told that the Government would one day introduce such a clause, it would have been a matter of great concern to both Houses.
Does the hon. Gentleman not agree that the Electoral Commission's role is so crucial that if it is not properly consulted before the Bill is enacted, not only Members but all who are involved in the debate will lose confidence in the powers being put through?
I know that the hon. Gentleman takes these matters very seriously. He is absolutely right. Unfortunately, important issues that come up in Committee are rarely covered properly in the media. It is clear from our exchanges on Second Reading that the hon. Member for Glasgow, Cathcart and I share similar views about the media's often malign role in debasing the level of political debate. That role is not necessarily in support of one party or another but simply debases the way that Parliament is seen in the eyes of the public. It has probably played a role in lower turnouts.
I often feel that if the media covered our Committee proceedings better, the public would not only have a higher regard for Parliament, but they would understand important issues such as this. Unfortunately most of the public will probably never know what the Government are proposing here. Opposition Members will do our best to alert the media and the public at large to what the Government are up to here. The hon. Member for North Tayside is spot on. If the public realised that this sort of thing was being contemplated or proposed by the Government, they could lose faith in the whole way that the Electoral Commission's work is done.
Has my hon. Friend noticed that not one single Labour Back Bencher has intervened to question the critical role that the Electoral Commission has in this Bill? Does he share my view that that is very significant?
It is significant, but we may yet hear from some courageous Labour Members that they share my concerns. They may be keeping their powder dry for their speeches on the amendment. Of course, if they share our concerns, they may vote with us. We will certainly press the matter. I hope that the Minister will say that, on reflection, it was quite wrong for the Government to put in a subsection saying that it is
immaterial whether the consultation was carried out before or after the Bill is enacted.
I should be delighted if the Minister were so persuaded by my speech that he would withdraw the whole Bill and start again after the Electoral Commission consultation is published. I fear that he will not do that. I feel strongly about this. I am glad that the hon. Member for North Tayside agrees with us. I hope that the Government, even if they ram the subsection through today, will not try to retain it when the Bill proceeds to another place because noble Lords and Ladies would be very unhappy. I suspect that it will not be included in the Bill when it is enacted.
I, too, have concerns about the consultation process but they are not the same as those expressed by the hon. Member for Surrey Heath. I have my concerns about the timetable. The Minister is aware of that, because I have already made that point plain. We are enacting legislation in unseemly haste. This issue should have been considered for much longer if we were to consider it properly. The amendment would render illegitimate the consultations that are already under way with the Electoral Commission. That seems a retrograde step. We need more consultation not less. It seems an extraordinary position to take.
I am unhappy about the strange relationship that is developing between the Electoral Commission and the Government. It is not clear who is leading the process, who is putting forward the proposals and how the whole thing is constructed. We are told that the Government intend to have three pilot regions. That is not a recommendation from the Electoral Commission. It was simply told that that is what the Government want, and it is not considering that. Yet that proposal does not appear in the Bill.
Nothing in clause 1 says that there shall be three pilot regions. It simply hangs in space as a Government intention that is not to be enacted and that is to be dealt with by secondary legislation. That seems entirely inappropriate. The Electoral Commission made absolutely plain the limits of what it is allowed to consider. The Government have not asked it to recommend the detailed form of the all-postal or electronic pilot schemes. Why on earth not? The purpose of the commission is to carry out audits, take considerations of that kind into account and make proposals to the Government for eventual legislation.
The Government have already decided what they want to do. They have passed to the Electoral Commission a remit and asked it to rubber-stamp it so that it is acceptable and so that it makes the Government impervious to criticism that they have not consulted. However, they have also said that the commission should not expect consultation, as the basic decision has already been taken. As I said, that is an inappropriate way of doing business, and I deplore it.
I have a great deal of respect for the Electoral Commission and its work. The consultation that it has
undertaken is of importance, and the consultation that it will take following enactment of the Bill will be equally important. Both should be taken into account. That is why I do not accept the premise of the hon. Member for Surrey Heath that, for some reason, the consultation that will have taken place up to the time at which the Bill receives Royal Assent is irrelevant.
If the Government have already taken decisions on matters that are absolutely crucial to the operation of the pilot schemes, I wish that they would make them explicit in the Bill rather than hiding behind a cloak of anonymity, as it were, in suggesting that the Electoral Commission is considering such matters when, in fact, it is not. It is specifically excluded from considering them, as requested by the Government.
As this is the first time that I have spoken in the Committee, may I welcome you to the Chair, Mr. Cook?
I wish to endorse my hon. Friend's comments. I notice in subsection (3) the word ''such'', which I believe needs a cross-reference to details about the consultation. I am concerned about the wording in the Bill, because it is absolutely clear from the material that we have received from the Electoral Commission that it works from parameters fixed by the Government, yet those parameters are not stated. Therefore, there is no exact explanation of the word ''such''.
Is it not entirely clear that subsection (3) comes after subsection (2), which discusses the sort of consultation about which we are talking?
Perhaps I should explain to the Minister where my confusion lies. I cannot see an explanation in subsection (2) of the actual process or parameters of consultation. It simply uses the words ''first consults''. However, the Government are limiting the consultation. It has not been open to everyone who is involved but has been carried out within defined limits. I simply suggest that the information should be in the Bill. Perhaps the hon. Member for Surrey Heath might have less trouble with subsection (3) if it were a little more specific.
It appears that the intention of the amendment, if it is not a probing amendment, is to delay the process by which consultation of the Electoral Commission could take place until after the Bill receives Royal Assent. I assure hon. Members that there is nothing improper or untoward in the clause.
The Secretary of State has the power under section 6(2) the Political Parties, Elections and Referendums Act 2000 to
''(a) review, and
(b) submit a report to the Secretary of State on,
such matter or matters . . . as the Secretary of State may specify.''
The request for the commission to consult on pilot regions or nations has been made under that legislation. In order to be explicit that consultations can legitimately occur at this stage and also to prevent future challenges, subsection (3) makes it absolutely clear beyond doubt that consultations are allowable.
If I were to place a malign motivation on the Opposition, which I am loth to do, I would suggest that this is a wrecking amendment. We need to consult the Electoral Commission now. Hon. Members know that the elections that we are discussing are due to take place in June. We must ensure that we can proceed with ample time to obtain the considered views of the commission.
To leave consultation until after Royal Assent would be to allow too little time to obtain advice, choose the regions or nations and give them a full opportunity to prepare for piloting. We have proceeded with common sense to ensure that it is beyond doubt that consultations with the commission will be allowed. That is why the provision is there.
The Minister makes a semi-accusation. He says that he is loth to do so, but makes it anyway by saying that amendment No. 19 is a wrecking amendment. We have not sought to delete subsection (2), which states:
''The Secretary of State must not make an order under this section unless he first consults the Electoral Commission.''
If we had sought to delete subsections (2) and (3), he could reasonably suggest that we were trying to wreck the Bill, but amendment No. 18, on which we have voted, states that we want to extend subsection (2). We did not seek to delete it, and we accept the idea of consultation, but we have made it clear that the Government are rushing the Bill through. The Minister says that he wants it enacted before next summer's elections. That is unnecessary, so why not leave it, have a proper consultation and finish it?
Members will be familiar with the dates of the elections to which the Bill relates. They are the local elections and the European parliamentary elections in June. It is self-evident that we want to give any regions and nations chosen for piloting ample opportunity to prepare. We must ensure that they are selected in good time, so that they have time to prepare. In order correctly to undertake the selection process, we must give the Electoral Commission an opportunity to comment. That is why it is undertaking its own consultation process. It will make a recommendation to the Secretary of State, who will then decide the regions or nations eligible for piloting.
Does the Minister think that it is wise to go ahead without the evidence from the Commission? We have had the paper from the Electoral Reform Society, which I hope he has considered. It is an independent, worthwhile organisation that is not trying to push a line for anyone, and it concludes:
''The Electoral Reform Society does not believe that pilots in either all-posting or e-voting in the 2004 elections would be beneficial.''
The report provides all the evidence. It says that it will be nonsense, rubbish and that e-mail, for example, will cost a fortune and will not work. I do not know if other Members have seen the report, but when the Electoral Reform Society says that such piloting
should not go ahead, is it wise to go ahead without the views of the Commission?
The Bill is a framework for choosing and selecting the regions or nations eligible for piloting. It does not specify the regions or nations that will definitely be involved. We have discussed how the main order-making process that will select a region or nation and how the Electoral Commission, which is the proper independent body to undertake a thorough survey of the country's views, will help to inform Ministers.
That is a mystery. We talked earlier about an enigma in a conundrum, wrapped in a mystery, which neatly encapsulates the Opposition's view. I do not know why anyone would want to inhibit more convenient, accessible voting. However, that is not the subject of the amendment and you would call us to order if we strayed further from it, Mr. Cook. The amendment provides that no consultation would be permissible until after Royal Assent, which would be too restrictive. It would wreck the opportunities for regions and nations to have pilots, which would be wrong.
I rebut the uncharacteristically unfair remarks from the hon. Member for Glasgow, Anniesland. We do not want to take that any further. What if, after consultation with the Electoral Commission, we came up with a significant line of argument that went against what the Government propose in the Act? Would the Government then revisit it? Surely, it makes sense to ensure that the views of the Electoral Commission are taken on board before any measure is enacted.
I did not include the Scottish National party in the comments I made about the Conservative party. They will be reserved for special comment at another time. The hon. Gentleman makes a reasonable point. Of course, we should listen to the Electoral Commission's advice; that is precisely why we want to make it possible for consultation to take place either before or after the enactment of this measure. To provide that consultation is not possible before enactment is too rigid. This capricious little amendment does not contribute anything useful to the proposal.
When my hon. Friend the Member for Rochford and Southend, East spoke earlier about the Electoral Reform Society, I believe that I heard the Minister saying, sotto voce, to his officials that he did not have that ERS submission. If he has not yet seen it, I ask him to comment on the fact that I drew his attention to it in our abortive and truncated sitting on Tuesday. As I said that the submission arrived in my post on Tuesday morning, it would have been wise of the
Minister, and the Government, to read it so that he could respond more effectively to my hon. Friend.
Of course, the Government are aware of several representations made by different organisations. Although I may not have a piece of paper before me at present, we are fully appraised of all issues that come to the Government's attention. However, the point remains that the amendment would prevent consultation taking place before Royal Assent, which would effectively scupper an opportunity for the Electoral Commission to make recommendations to the Government and enable the Government to choose regions in good time so that they can prepare for the proper, comprehensive operation of a working electoral pilot. No hon. Member would want the pilots to fail; therefore, we should allow consultation to take place both before or after Royal Assent. I urge the Committee to reject the amendment.
I made it clear at the outset that we felt strongly about the amendment and I shall press it to a Division. However, before I do so I want to respond briefly to a couple of things that the Minister said, and to the helpful comments of the hon. Member for North Tayside who spoke for the Scottish National party.
I rebut the slur levelled by the hon. Member for Glasgow, Anniesland in an intervention. Conservative Members want voting to return to the higher figures that are set out in the Library briefings for the Bill. In every election since the second world war, from 1945 up to and including 1997, whatever the results, the turnout in the general election has been more than 70 per cent., and the average has been roughly 75 per cent. The first time since the second world war that a general election turnout dropped dramatically was in 2001. The main reason for that, in my view and that of the hon. Member for Glasgow, Cathcart, was the cynicism engendered by the media. Another factor was that, because of Government gerrymandering since 1997, a lot of voters not only lost faith in the Government, which is why there was a collapse in the Labour vote in the Labour heartlands, but felt that the political process had been undermined.
It is not in our interests to disfranchise people. My hon. Friend the Member for Stone, many other Conservative speakers and I made our stance clear on Second Reading. We do not believe that security aspects of postal or e-voting, which will be covered by later clauses and groups of amendments—I will not anticipate those arguments because I would be out of order to do so—have been properly dealt with. Far from wanting to disfranchise people, we are trying to ensure proper security.
We also feel that the consultation should be allowed to finish before a Bill is put forward, a point that was well encapsulated by the hon. Member for North Tayside. I am a great admirer of the Runrig music that he and his friends performed, and I agree with almost everything that he has said so far. That does not reflect approval from Conservative Members for the general policies of the Scottish National party, but it is useful
to have someone from one of the minor parties strongly supporting us in making points that comprehensively answered the Minister's comments. As the hon. Member for North Tayside said, a Bill should not be put forward before sensible consultation has been reported. That is ridiculous. It is not a case of putting the cart before the horse, but of not even having a horse. A cart without a horse is not much use, not even to the hon. Member for Glasgow, Anniesland.
The hon. Gentleman has not done the election prospects of the hon. Member for North Tayside any good by backing him. Members of the Scottish National party are well known in Scotland as tartan Tories anyway.
The hon. Gentleman always wants to re-write history. Part of the reason for the low turnout was that there was such a poor Opposition. When there were contests in constituencies, the Labour vote increased. In constituencies with a large Labour majority, the turnout was low.
Unfortunately, I do not have my copy of Dod's Parliamentary Companion, so I cannot discuss the hon. Gentleman's seat. However, on election night in 2001, there was a huge fall in Labour majorities in some of the safest seats across the country. That was because Labour voters had lost faith, and that was one of the reasons why the turnout collapsed so much.
Mr. Harris rose—
Order. I fear that we are straying from the point. The amount of time to be spent on these deliberations has already been determined. How that time is utilised is entirely up to hon. Members. Remarks must be pertinent to the line-by-line scrutiny of the legislation.
In deference to your ruling, Mr. Cook, the hon. Member for Glasgow, Cathcart has indicated that he no longer wishes to intervene. Therefore, I can bring my remarks to a close.
The Minister has not had the chance to read the Electoral Reform Society's report, so he may not realise that it says that an e-voting pilot is unlikely to bring any significant rise in turnout, is vastly expensive, and relies on unverified software. For those reasons, it recommends strongly against e-voting pilots in 2004. On that basis, would it not be wise to consult the Electoral Commission before proceeding?
I agree with my hon. Friend. There will be extensive debates about the details of what the Electoral Reform Society and other organisations, some of which I quoted on Second Reading, think about e-voting. That is relevant to the question whether the consultation should have finished before the Bill was put forward.
I have made my case. Subsection (3) is an outrageous way to treat the Electoral Commission, and I should therefore like to put the amendment to a vote.
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 11.
With this it will be convenient to discuss the following:
Amendment No. 46, in
clause 1, page 1, line 18, leave out from 'election' to end.
Amendment No. 21, in
clause 1, page 1, line 19, leave out subsection (5).
Amendment No. 47, in
clause 1, page 2, line 1, leave out paragraph (b).
Amendment No. 1, in
clause 1, page 2, line 3, at end add—
Amendment No. 20, in
clause 1, page 2, line 3, at end add—
'(c) any two regions with a common boundary.'.
Amendment No. 48, in
clause 1, page 2, line 3, at end add—
'(c) any region which does not meet the criteria identified by the Electoral Commission for inclusion as a pilot region'.
Amendment No. 39, in
clause 9, page 5, line 6, leave out from '(c.2)' to end of line 7.
This important group covers several crucial issues and it may take a little time to explain the arguments.
Amendments Nos. 45 and 46 would take out the reference to a specific region, which would make the pilot scheme the European Parliament elections in 2004 for the whole country. The reason why I put forward the amendments for consideration is twofold. First, I want to explore the reasons for not having a national election to the European Parliament on the new basis, if that is what the Government intend. Secondly, I want to explore when a pilot is not a pilot, which is when it is of such a size as to be a significant part of the total electorate.
My principled view is that it is not right for part of the electorate to use a different system to elect their Members of the European Parliament from that which pertains in the rest of the same country. There is an easy and obvious riposte to that, which is that we have a different system in Northern Ireland. I accept that, but there are also special reasons for having a different
system there. In general, however, having different systems of voting in different parts of the same country for the same election should be avoided unless there are good reasons for doing otherwise.
Perhaps the hon. Gentleman will clarify the argument. My understanding is that although the pilot will mean that some people in certain parts of the United Kingdom will vote by post, the system of elections to the European Parliament would be exactly the same everywhere in the UK—that is, the list system. Therefore, the system in 2004 will be no different from that used in the general election, when some people voted by post, others voted by proxy and most voted personally at polling stations.
The hon. Gentleman is right—up to a point. He is right that whether we use a list system, a single transferable vote system or a first-past-the-post system, the electoral system will remain unchanged, and that therefore all parts of the country will be on the same basis.
However, there is a difference in the mechanics of the system; otherwise, there would be no point in running the pilots. There is a difference between elections that are held on an all-postal basis, on a postal and electronic basis, or using the current system, with the majority voting in person and having the opportunity to use a postal vote. If there were no difference at all, the exercise would be pointless, but we start from the premise that there is a difference, and that it is likely to affect turnout and voting patterns in some parts of the country, which in turn will have a knock-on effect on the candidates who are elected in those areas.
There is a principle involved, although it is not one for which I would die in a ditch. For a single election there should be a consistent method of voting.
I am surprised that the hon. Gentleman, as someone who is in favour of decentralisation, as I am, is not in favour of examining ways in which we can introduce electoral reform, if this is a mode of electoral reform. The only way that the success of electoral participation can be measured is by some level of experimentation. I am concerned that if such experimentation does not take place, new models for encouraging people to vote cannot be tested.
I am not against the principle of pilot schemes, because there are strong arguments for running them. Nor am I averse, as I have made plain, to novel methods of voting. I have had some experience of that in my constituency, and my view is that it improved turnout and people were satisfied with the outcome.
In general, until now the pilot schemes have operated in whole local authority areas, although I am told that there were some exceptions to that, of which I was not aware, in which trials took place in specific wards within local authority areas. However, in general, a single local authority has considered whether it wished to run a pilot and made proposals to the Government and, if those proposals were agreed, the pilot was run in that whole local authority area or the wards in it. That is the right way to do it. My quarrel is with the proposal that a large tranche of the
country, but not all of it, should adopt this system at an election for a single body—the European Parliament.
I could perhaps accept the proposal more easily if the system were to be adopted in only one region and we were to use that as an experiment. However, I understand that the Government are proposing—although that is not explicit in the Bill—that three regions will participate, out of the 10 European electoral areas for the UK, excluding Northern Ireland, for reasons that we understand. A significant part of the UK will therefore be involved, meaning that the principle of trying a small-scale experiment first and then expanding it if it works, will not apply. It will be a huge experiment in a large part of the country—the population that will be affected by it is three times that of Scotland. Once an experiment is being conducted on that scale, it would be better to
run the whole election under a new system and to assess the result. At least there would then be consistency throughout the country and the result could be compared with previous elections to see whether there appeared to be a significant change. We would then have the perfect opportunity to see whether there is a differential between different parts of the country—different because of their rural or urban natures or because of the number of local authorities involved. That would be a more significant experiment—in the words of the hon. Member for Stroud—than the one in the Government's proposals.
Mr. Harris rose—
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without question put, pursuant to the Standing Order.
Adjourned till this day at fifteen minutes past Two o'clock.