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Lord Mackay of Drumadoon moved Amendment No. 64:

Page 5, line 7, leave out from beginning to ("within") in line 8 and insert ("An election to fill a vacancy shall not be held if the vacancy occurs").

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The noble and learned Lord said: In moving this amendment I shall, with the leave of the Committee, speak also to Amendment No. 69. As noble Lords will be aware, Clauses 8 and 9 deal with the procedures for filling vacancies among the membership of the parliament. Clause 8 deals with constituency vacancies and Clause 9 with regional vacancies. The purpose of these two amendments is to seek to ensure that constituency vacancies and regional vacancies are treated in the same way so far as possible. Obviously, in the one case a by-election is required, but there is no such requirement for a regional vacancy. It is the similarity of the timing that the amendments address.

Clause 8, as drafted, means that if a constituency vacancy occurred up to one day short of six months before the next ordinary general election, such a vacancy would not require to be filled. That would mean that the constituents would go unrepresented by a constituency member for up to six months. If my calculations are correct that is one-eighth of the life of a parliament. Indeed, it could be slightly worse than that were the presiding officer to exercise the power contained in Clause 2(5) of the Bill which allows a measure of variation in the date as to when an ordinary general election is to be held. That period of six months could extend to almost seven months.

However, the effect of Clause 9, as currently drafted, is that if a regional vacancy occurs it can be filled almost automatically. As soon as the matter comes to the attention of the regional returning officer he can notify the presiding officer following the procedure set out in the clause. The only circumstances in which such a vacancy would not be filled are if the regional member concerned was an individual member or there were no further names in the party list to which the retiring or deceased member had been originally elected; or if none of those in the list appeared to serve any longer as members of the Scottish parliament.

It seems to me wrong in principle to allow such a discrepancy to continue with the constituency vacancy remaining unfilled for up to six months, and possibly slightly longer, and the regional vacancy being filled virtually overnight even if the general election is the following week. The purpose of these two amendments is to bring the procedures together as far as is practical. The effect of the amendments would be that both types of vacancy would not be filled if the vacancy itself occurred within a period of three months leading up to the date for the next ordinary general election. That date is set out in the Bill; namely, 1st May of the particular year. That appears to me to be a fair way of proceeding with this practical problem. I beg to move.

The Earl of Mar and Kellie: Amendment No. 64 is quite straightforward and clear. I like the fact that it reduces the amount of time that a constituency would be vacant. It also allows more people to gain albeit brief experience. That sounds very good, but when one comes to the grouped Amendment No. 69 it seems to reverse the procedure and prevent someone getting albeit two to three months' experience. The fact is, they are available. If it occurs, one of the phenomena is it may well not be the next person on the list who comes to the parliament.

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The next person may be in a good job and does not consider it is worth giving it up for what may be two months whereas someone further down the list might be available. A quite interesting phenomena could be forgone by the idea contained in Amendment No. 69.

Baroness Ramsay of Cartvale: The Government believe that there should be restrictions on holding a poll in a by-election for a constituency vacancy shortly before the poll in the next general election. That avoids the cost and the demand placed on the electorate to return a member for what is a short period of time. The Bill provides that if the latest date for holding the by-election, as provided for in Clause 8(3), is within three months of the next general election, then no by-election will be held. A similar approach applies to European parliamentary elections. It is not uncommon for countries with fixed date elections to make such provision. This is not something within our experience. The British experience is not to have fixed dates for general elections. However, in countries with those arrangements this is not an uncommon provision.

Amendment No. 64 would shorten that period. It could mean that by-elections were held within three months of a general election to fill vacancies that had arisen a few weeks earlier. It is always difficult to know where to draw the line on a matter of this kind, but we believe that the Bill strikes the right balance. However, this issue is not black and white.

However, Amendment No. 69 is quite different. It attempts to make a similar provision for filling regional seats but this is not necessary. Clause 9 of the Bill explains how the seats are to be filled. The seat will be filled by the next person on the party list. This is normal procedure in countries where there are lists. The Scottish Constitutional Convention straightforwardly noted that this would be the process for filling seats in the event of a vacancy. If that is not possible, the seat will remain vacant until the next general election. If it is found that it cannot be filled by the next person in the list then the seat will remain vacant until the next general election. Since no by-election is needed and there will be no cost and inconvenience to the electorate there appears to be no reason to make a similar provision. We see no point in making an issue or problem where there is none and where people can be represented immediately if there is no difficulty about the next person on the list. I urge the noble Lord to withdraw his amendment.

The Earl of Mar and Kellie: Before the noble and learned Lord rises to his feet, perhaps I may clarify one matter with the Minister. Am I correct in understanding that the returning officer will go down the list until he or she finds a candidate who is available?

Baroness Ramsay of Cartvale: I shall write to the noble Earl if my understanding is incorrect. On the basis of my briefing, I understand that if it is not possible to fill the vacancy with the next person on the list the seat will remain vacant until the next general election.

Lord Mackay of Ardbrecknish: Perhaps I may intervene because of my experience on the other two

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Bills. If I hear the noble Baroness aright, she says that if for any reason the next person on the list does not want to take the seat a vacancy arises. My understanding is that if the next person on the list does not want to do it then it falls to the next person on the list. One only considers a vacancy if one runs out of names on the list. That is a matter that I shall probably raise on clause stand part. I believe I am right that if the next person on the list cannot or does not want to do it, the offer is made to the person below.

Baroness Ramsay of Cartvale: I agree with the noble Lord, Lord Mackay of Ardbrecknish. It is only if the list is exhausted that the seat falls vacant. Therefore, one goes down the list until a person is found.

Lord Mackay of Drumadoon: I am in the happy position of being in agreement not only with my noble friend but also the Minister. It is always easier to agree with my noble friend Lord Mackay of Ardbrecknish rather than to try to disagree with him.

As the Minister has said, this is a question of balance. The purpose of my amendment, which I believe is self-explanatory, is to try to eliminate any unnecessary differences between regional members who can serve for a few weeks and constituency members who will be deprived of such an opportunity and to bring them together, albeit in an imperfect way. As the Minister says, it is a question of balance. It is not an issue of great principle. Having raised the matter, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

10.15 p.m.

Clause 9 [Regional vacancies]:

[Amendment No. 65 not moved.]

Lord Mackay or Ardbrecknish moved Amendment No. 66:

Page 5, line 25, after ("is") insert ("legitimately").

The noble Lord said: In moving Amendment No. 66, I speak also to Amendment No. 67. Amendment No. 66 involves a narrow and probing point. I suspect that I know the answer, but I wish to have it confirmed. I have introduced the word "legitimately". I am referring to a situation where there is a vacancy and the next person on the list is considered. I have said that,

    "He must be a person who is legitimately included in that list".

I have inserted the word "legitimately" to hear the Government's view about someone who is put on the list by a political party but, unbeknown to them, is disqualified perhaps because he has decided to stand as an independent for another seat, or something of that nature. What would happen? At what stage is someone legitimately on the list?

I appreciate that the political parties will try to sieve through that. But what happens if they fail to notice, or are not told? It could happen, although perhaps not

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often; it might be quite unusual. If it transpires that that person should not be on the list, the returning officer can skip over him.

Amendment No. 67 is more important in many ways, and is more than probing. Let us assume that someone who is a member of the Scottish parliament either dies or decides to resign. The returning officer looks at the next name on the list. The next name says, "Yes, I am delighted to be elected to the Scottish parliament". However, in the years between having been put on the list, and having had the election, that person has fallen out with his party and has left it. It seems to me to be totally illogical that that person could then take up a seat which was the party seat even though he had left the party.

The Government should address this issue. I am being perhaps firmer than I should like to be, but I know the Government's views on these matters. I wish to guard against the party saying to someone, "We don't like the colour of you any more. You are far too red and we're not having you. Therefore we're not going to let you have this vacancy. We'll miss you out". We get into great complications there. Therefore I am prepared to aim rather lower than my real objective and suggest that if a person is not a member of the registered political party, he or she should not be offered the vacancy. If the party tells the regional returning officer that his name is not to be notified to the presiding officer as the name of the person to fill the vacancy, he would not have the offer.

It gives the party more power than perhaps I should normally like. I wondered whether I would admit to this reason until we came to the summing up. But in case whoever of the noble Lords approaches the Dispatch Box tells me that we do not need to have this on the face of the Bill--as, no doubt, my noble friend Lord Balfour has noted and will tell us--these words are on the face of the Welsh Bill. I had put down an amendment to deal with this problem and at the same time the Government came forward with their own amendment. On the face of the Government of Wales Bill are the exact words of Amendment No. 67. It states:

    "This subsection applies to a person if he is not a member of a political party"--

the provision is slightly differently worded as the Bill is written differently--

    "and the party gives notice to the regional returning officer that his name is not to be notified to the presiding officer as the name of the person who is to fill the vacancy".

Dare I say in the presence of the noble Lord, Lord Thomas of Gresford, that if it is good enough for the Welsh it is good enough for the Scots? I beg to move.

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