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Baroness Hayman: Clause 6 is a valuable protection to ensure that the Government can respond swiftly to the referendum results. I and other Ministers share the difficulty experienced by the noble Lord, Lord Bowness.
The clause does not prohibit legal challenge where there has been some form of misconduct about a referendum count. The purpose of the clause is the same as that behind the equivalent clauses in the Referendum Act 1975, the Scotland and Wales Acts of 1978 and the Referendums (Scotland and Wales) Act 1997. There is therefore precedent for this measure in previous legislation. Perhaps the noble Lord will say that that is another phrase that I should not be using at the Dispatch Box. The noble Lord, Lord Bowness, said that issues had been raised about the conduct of the referendum in Wales. I understand that my right honourable friend the Secretary of State for Wales has today answered comprehensively a Parliamentary Question in another place on that topic. I return to the intent of this particular clause. This clause is designed to prevent a frivolous challenge to the counting of votes or ballot papers. The Government recognise that the provisions in the Bill do not amount to an absolute bar on legal proceedings as the courts may construe Clause 6 as not ousting their jurisdiction in appropriate cases, such as one involving a flagrant breach of the law by a counting officer in the conduct of the referendum. I can assure the Committee that there is no question of the courts being unable to consider appropriate cases. We recognise that the courts are rightly jealous of their jurisdiction and look carefully at clauses that seek to oust their powers. There is therefore a substantial body of case law concerning the proper interpretation of such statutory provisions. Should any legal proceedings be brought challenging the actions of the chief counting officer or a counting officer it would be for the court in accordance with case law and the particular circumstances of the case to decide whether a challenge should be entertained in the light of Clause 6. For example, if it could be shown that a counting officer had failed to carry out his statutory duties or had acted in any way deemed to be ultra vires the courts might intervene despite the terms of this clause. I hope that I have reassured the noble Lord and that he will feel able to support the clause.
Lord Bowness: I am grateful to the Minister. I always experience difficulty in pursuing legal matters in this House. Perhaps I should not take this point any further. The Minister has informed the Committee that the precedent lies in the Welsh and Scottish Bills. Of course, a clause of this kind has not been tested subsequent to the passing of those Bills. The words "any proceedings" give me great cause for concern. However, I shall read what the Minister has said. Clause 6 agreed to. [Amendments Nos. 18 to 20 not moved.] Clause 7 [Functions of the Local Government Commission]:
Baroness Hamwee moved Amendment No. 21:
Baroness Hayman: These amendments remove the power to issue a direction to the Local Government Commission specifying matters such as the total number of electoral areas and members for which the recommendations in the commission's report must provide. When we debate the next group of amendments perhaps we shall see more clearly precisely why they have been proposed. We believe that these amendments are unnecessary. The White Paper will make our proposals on electoral arrangements quite explicit. The Local Government Commission will have to operate within a clear policy framework when it draws up its recommendations on the boundaries and the number of members of electoral areas in Greater London. The directions provided for in the Bill will reflect the policy proposals set out in the White Paper. These will include matters such as the number of electoral areas and the members of the assembly. The White Paper will be crucial in helping Londoners to decide how to vote in the referendum. I do not believe that it would be helpful to suggest that there should be no mechanism by which the commission should be instructed to take account of the White Paper and to leave out critical details upon which Londoners had voted. That does not sit very comfortably with giving Londoners a real choice.
The commission and Secretary of State will be operating in the context of a clear policy framework set out in the White Paper. Government policy with respect to electoral systems, the number of electoral areas and the number of assembly members will have been made explicit. The discretion of the Secretary of State will therefore be far more limited than some people have believed. The approach here is well precedented. The provisions contained in Part II of the Bill are based on those in Part II of the Local Government Act 1992 which provide for the structural review of English local government and for periodic electoral reviews of counties and districts.
I emphasise that there is clear precedent for the provisions in Part II of the Bill. Clause 7(2) is necessary in recognition of the fact that the commission is concerned with first elections rather than reviewing existing arrangements and enables the Secretary of State to set the detailed policy framework that will have been outlined in the White Paper.
We therefore believe that our proposals in Part II follow another well-precedented approach. I stress again that clear detail will have been laid out in the White Paper. It is only right in that context that a mechanism should exist for directing the commission to take that into account when drafting its report. I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Hamwee: It is probably better to have the debate on the later group of amendments at this stage, because we seem to have consequential amendments which precede substantive amendments. I feel almost as simple as the noble Lord, Lord Mishcon. I shall await that debate, and read the Minister's answer on this group of amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ludford moved Amendment No. 22:
The noble Baroness said: This set of amendments provides for an open, consultative method of arriving at the best electoral arrangements for a democratic and representative London assembly. If Clauses 7 to 11 stand as drafted there will be little scope for the LGC to be creative and consultative, because the directions as to electoral areas are constraining. The number of members and even the names of the constituencies will be subject to directions. That does not leave a great deal for the LGC to consult upon and involve other parties in arriving at its recommendations.
Perhaps I can contrast that, first, with the Jenkins Committee on electoral reform, which has already been mentioned today, which was given a set of criteria against which to work but which was otherwise free to think the thinkable. The second contrast is with the experience of Scotland, where the Scottish Constitutional Convention worked in a consensual way, bringing together not merely parties but trade unions, churches and voluntary organisations. Part of the reason for the massive Yes vote in Scotland was that the groundwork had been through that consensual, consultative method. We want no less for London.
The Secretary of State's ability to give guidance to the LGC, meets part of the test that the Minister mentioned in her previous remarks. It is true that guidance is better than directions. The amendment would enable the Secretary of State to require the commission to have regard to it. I think the Minister used the phrase "have regard to", or "take account of".
The reserve power remains under Clause 9, that once the report is submitted to the Secretary of State, in accordance with Clause 7, the Secretary of State may then direct the commission to submit a further report. In the first instance, we propose that the LGC should be given a framework within which it can come up with a system which is likely to receive the maximum support and, again, meet the test of long-term stability and consent.
The amendments provide that the matters upon which the Secretary of State may give guidance could include--it is obviously not an exhaustive list--the timetable for the report, and criteria such as fairness, proportionality and voter choice.
We on these Benches start with the motive that we want an effective assembly with popular support, not one crippled from the start by a bad voting system. We contend that a bad voting system would be first-past-the-post. We see the dangers created by a one-party state with disaffected voters who are alienated and so often do not turn out to vote. That has produced examples such as Hackney, Glasgow and Doncaster and, to some extent, the GLC. The first-past-the-post system is tried and tested, but it may be the residents who have been tried and tested by the experience of living under first-past-the-post regimes. We believe that there should be a proportional system which reflects London's diversity and ensures a fair, geographic spread of representation.
Voter choice is an important criterion to which the LGC should have regard. That principle is essential in order to reflect the diversity of London's population, and to achieve gender balance. Ethnic minority representation is important in London. It will come as no surprise to the Committee to hear that the preference of the Liberal Democrats is the STV which gives the optimum combination of voter empowerment to express preferences and proportionality between parties. We favour the pure form of STV as used in Ireland, North and South. The Committee need not fear that I shall launch into a discussion of all the possible permutations of STV or any other system, because I am not qualified to do so. Obviously the test of a Liberal Democrat is that one can run an STV election, and unfortunately I cannot.
I want the LGC to go into all the possible permutations. One of the things it might look at is the 50-page report produced by the Electoral Reform Society in response to the Government's Green Paper. That is meaty material. We on these Benches will undoubtedly have to compromise on what will emerge as the eventual system, as will others, to achieve our goal of a consensual system suitable for London.
It is also our view that a genuine constituency basis is needed. The commission would need to look at the best configuration of constituencies. If it were already subject to a direction from the Secretary of State to specify the electoral areas, the number of members and the names of the constituencies, it would be so hide-bound that it would be unable to come up with the best solution. A London-wide single list would, even if proportional, fail to reflect the diversity of Londoners and fail to make Londoners feel that that body belonged to them by reflecting geographical differences.
The commission must also consider the size of an assembly. We believe that it must be large enough to achieve proportionality and to allow all Londoners to feel represented. There is a danger that that will not be achieved if the assembly is too small. However, if it is too large we shall have the problems experienced by the GLC. We also want it to be large enough to provide enough person power to carry out the work of scrutinising the mayor. The Government put emphasis on that. We believe that a membership of 40 or 50 best meets that criterion. However, we are arguing for the Local Government Commission to bring together a forum of interested parties--political parties, voluntary organisations and pressure groups such as the Electoral Reform Society, Charter 88 and others--and to publicise and invite comments on its recommendations before it reports.
There is considerable common ground between the comments of the Electoral Reform Society and the response of the Liberal Democrats to the Government's White Paper. We see considerable merit in the idea of constituencies which pay regard to the historic counties in London. There would be, say, five large multi-member constituencies whose boundaries reflected historic routes and geographic attachments. That has a great deal of resonance in London; for instance, the postal address of Kingston is Surrey, although it is a London borough. Furthermore, Middlesex carries weight for people in cricket clubs, for instance.
We wish to put those ideas into the melting pot because we believe that there is considerable mileage in them. However, we believe that first-past-the-post single member constituencies which group boroughs together should be firmly ruled out. There are many pitfalls in that approach, but I must not take up too much time in spelling them out. The advantage of having large multi-member constituencies is that they need not be the same size. There would be no need for continuous boundary reviews because one could alter the number of members representing each constituency. Sufficient members would be elected in each constituency to achieve the desirable proportionality and genuine ethnic representation.
The purpose of the amendment is not to set out the electoral system but to suggest that the Government should give guidance--not directions--to the Local Government Commission to go out and consult and to consider what would be the best tailor-made system for London that has the best chance of receiving maximum support. I beg to move.
Page 3, line 15, leave out ("If the Secretary of State so directs,").
The noble Baroness said: I beg to move Amendment No. 21 and speak also to Amendments Nos. 27 and 34. At first glance the Bill appears to leave to the Local Government Commission a considerable amount of flexibility and discretion with regard to a number of
important matters. However, at second glance the Local Government Commission can submit a report only if it is so directed by the Secretary of State. The first amendment in this group seeks to take out the opening words of this clause so that the commission is required by statute to report and is not dependent upon the direction of the Secretary of State. Further, the direction that the Government propose should be given by the Secretary of State under subsection (2) which I seek to remove is one that covers the total number of electoral areas and the total number of members.
These are important matters. The number of electoral areas and the number of members are inter-dependent and inextricably part of decisions about the electoral systems. For the purposes of this debate I take it as read that there will be two elections, one for the mayor and one for the members of the assembly. In a later grouping of amendments we shall debate the importance of systems that allow for proportionality and voter choice. In this group of amendments I seek to ensure that the hands of the Local Government Commission are not fettered by an imposed direction that will enable it to undertake only a technical exercise as to how to implement the Government's preferred system. I beg to move.
7.30 p.m.
Page 3, line 18, leave out ("him") and insert ("the Secretary of State").
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