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Lord Thomas of Gresford: With that introduction, I, too, strongly support the amendment. The suggestion that appears in the Welsh Bill, and no doubt in the Scotland Bill, that a person can be a regional member chosen from the party list and yet at the same time can change his party and cross the Floor, causes me difficulty. The idea that a person who has been on a regional list can subsequently be appointed as a regional member because of a vacancy when he has left the party

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and when the party does not want him to be a member, carries the situation of cross-over of existing members to a ludicrous degree. I hope that, as has happened with the Welsh Bill, the Government will accept the amendment.

I heard the noble Lord, Lord Mackay of Ardbrecknish, say that either paragraphs (a) or (b) would apply, but the critical word is "and" at the end of subsection (4A)(a). Both conditions must be fulfilled. It states:

    "This subsection applies to a person if ... he is not a member of the registered political party, 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".

When we discussed the Welsh Bill, I understood that the purpose of having "and" was to ensure that a person is not disqualified, for example, because he has failed to pay his subscription and at the time when the vacancy arises he has ceased to be a member. Therefore both conditions are necessary; first, that he has left; and, secondly, that the party accepts that he has left and has notified the presiding officer to that effect. I strongly support Amendment No. 67.

The Earl of Balfour: My name is on the amendment. I believe that when it was moved in respect of the Government of Wales Bill it was a very sensible amendment. I can do no better than to quote from the speech of the noble and learned Lord, Lord Falconer of Thoroton, on that occasion. He said:

    "This government amendment deals with the concerns expressed about the fairness of allowing people who had left a political party to remain on a party list put forward at an assembly election by that party. We believe that it would be an injustice and a disservice to the electorate if we were to allow a casual vacancy in a party list seat to be filled by someone who had been on the list at the time of the election but who had since left the party.

    The electoral region ballot in the assembly elections will involve a choice between party lists or independent candidates. If they choose to vote for a party list, most voters will be voting for the party list as a whole rather than for any individual candidate on that list. The allocation of the electoral region seats in each electoral region is determined so as to compensate for any disproportionality in the seats won by the parties in the constituencies within that region".--[Official Report, 11/5/98; col. 916.]

I cannot put it better and it is a fundamental reason behind the amendments to which my name is attached.

Lord Sewel: I ought to make clear at the outset that there is no difference between us in terms of where we want to get to. There may be a slight difference in terms of the various routes we choose, but there is no difference on the need to deal with the issues and on the outcome. We fully accept that we shall need to provide for the situation in which individuals have left a party prior to becoming eligible to fill a list vacancy for that party between the elections.

It may be helpful if I draw to the attention of the Committee the fact that we have accepted already that it is an important point and by amendment in the Commons we have extended the power to deal with this matter in an order under Clause 11. That amendment in the Commons provided the means by which we could

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deal with this. I believe that that occurred before the Welsh issue was dealt with, but I may be wrong about that.

That approach seems to us to have merit in that it provides a flexibility to tailor the necessary provisions on party lists to take account of changes and circumstances which may arise in the future. In that area, it is quite difficult to be absolutely clear about the whole range of circumstances which may develop.

However, I understand and fully accept the view that Parliament should be able to consider in detail the way in which we propose to exercise the powers we have taken under Clause 11. I hope that the noble Earl will feel reassured when I tell him that the order under that clause will be subject to the affirmative resolution procedure in both Houses. Therefore, we shall have the opportunity to return to that issue in due course.

In the meantime, I am happy to offer the reassurance that we have no intention of using both powers in order to give parties a general power of veto over list candidates. A candidate who has fallen out of favour but is still at the right stage of the list cannot be leap-frogged by those who may find him something of a troublesome colleague. Therefore, we shall not give parties a general power of veto which we believe would be an abuse.

It is absolutely fair to point out that it would have been open to us to adopt the alternative approach taken in the Government of Wales Bill, as suggested by the noble Earl. But in the light of the fact that this problem had been spotted in the other place and that in this Bill we have chosen to amend the Bill as I have outlined to deal with the matter by order under Clause 11, I hope that the noble Earl will recognise that there is no point of difference between us in terms of policy or principle. It is a slightly different way of approaching the matter which provides a greater degree of flexibility to respond to particular circumstances. There will still be parliamentary scrutiny because the order envisaged under the amendment is subject to the affirmative resolution procedure in both Houses. Therefore, we shall have an opportunity to scrutinise the proposals in detail. I hope that Members of the Committee are reassured in relation to that.

On Amendment No. 66, I can understand what the noble Lord, Lord Mackay, is trying to achieve and I do not have any difficulty at all with that. The difficulty is that in terms of our electoral practice, it has not been the job of the returning officer to involve himself up to that point in determining the bona fides, the legitimacy, of candidates. He has had a relatively formal role. Basically, his role has been nothing more and nothing less than ensuring that the forms have been filled in properly. His job has involved that degree of scrutiny.

It would be a departure from normal practice to extend the role of the returning officer to start inquiring as to whether or not a candidate is legitimate in the sense that he has not been disqualified because of some act of commission, or some omission, on his part. Under present arrangements, we have the means to deal with that; that is, through the court procedures.

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10.30 p.m.

Lord Mackay of Ardbrecknish: I believe that the noble Lord was beginning to answer that point. The problem is that Clause 4 contains all the debars that a political party's regional list must not include "a person" etc., but it does not say who will blow the whistle. If the noble Lord is saying that other political parties or individuals will have to keep an eye open for this and go to court, that is fine, but it seems rather elaborate. The returning officer is obviously the person who is in the best position to make a judgment about the legitimacy of such things.

I am not sure that the noble Lord can help us any further although perhaps the Government should consider this point when we go into this new system under which 12 names might be presented to the regional returning officer. To what extent will he check them? Currently the checks are provided by the proposers and seconders of the candidates in the first-past-the-post system. They look at the electoral register to see that the person is registered there. The disqualifications, if I can call them that, in Clause 4 are a good deal more than just that. I wonder who will make these checks.

Lord Sewel: I have got close to answering the noble Lord on this point. As things are at the moment, a challenge would come through, be made to the courts and be resolved through the courts. I am not saying that I shall go away and think again on this issue, but it is something on which I am quite happy to reflect over the long summer evenings that lie ahead of us.

Lord Thomas of Gresford: I am encouraged by the response of the noble Lord, Lord Sewel. I am puzzled as to why Clause 9 exists at all if Clause 11 can, by order, make provision as to

    "the return of members of the Parliament otherwise than at an election".

Why do we bother with a whole clause dealing with regional vacancies? I see no reason why provisions like those in the Government of Wales Bill should not be included on the face of this Bill to make the position absolutely clear.

The difference between Clause 9 and Clause 11 is that the provisions of Clause 9 are mandatory whereas Clause 11 sets out a discretion for the Secretary of State to make such provision as he thinks fit for all sorts of things. None of them specifically deals with the particular matter that is referred to in Amendment No. 67. The principle is clear. Why should it not appear in Clause 9?

Lord Sewel: I have given the assurance that we will be bringing forward an order under Clause 11 to deal with the point that the noble Lord has made. I have given that assurance. This Bill and the Welsh Bill have developed differently in the different Houses. You can have two routes to the same destination. I would

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have thought that this is a Scottish solution to a Scottish piece of legislation. There is quite appropriately a Welsh solution to a Welsh piece of legislation.

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