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Lord Hardie: My Lords, once again I thank the noble Lord for introducing formulae into your Lordships'

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House at this time of night. This is not an ideal time at which to discuss the intricacies of different electoral systems.

As the noble Lord pointed out, Amendment No. 46 is what may be described as a pure St. Lague system which is used in New Zealand. I understand that that is regarded generally as being too favourable to small and fringe parties. As a consequence, a modified version of that system was introduced in Scandinavia and that is reflected in Amendment No. 47.

I start by saying that we do not suggest that other systems, including St. Lague or modified St. Lague, are without merit. Indeed, the noble Lord has outlined the advantages of adopting the St. Lague divisor. However, this is not a matter on which we should delay much further your Lordships' consideration of the Bill.

In fairness, the noble Lord accepts that there are genuine arguments in favour of supporting the d'Hondt system other than that it favours the Labour Party. The Government favour the d'Hondt divisor as set out in the Bill not because it favours the Labour Party or the Scottish National Party for that matter. If we apply the various divisors to the results of the last election, I understand that they result in only slight differences. We believe that d'Hondt is simpler to understand and more logical to apply. It is easier to explain to the public and to those who will have to apply it. It has the virtue of being consistent with the approach proposed for the European Parliament elections and the elections to the Welsh assembly. Incidentally, it is also the approach set out in the White Paper.

As I said, we are not suggesting that other electoral divisors are without merit. However, this is the one we have chosen for the reasons I gave. The arguments advanced by the noble Lord do not convince us that they have more to offer than the d'Hondt system.

I can assure the noble Lord that the Government did not select this divisor on the basis that it is better for the Labour Party. The basic election system used in the Bill reflects that recommended by the electoral commission established by the Scottish Constitutional Convention. It is the system which was set out in the White Paper. It produces fair and reasonable results and the Government are not persuaded that we should change the divisor. For those reasons I invite the noble Lord to withdraw his amendment.

Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble and learned Lord for that explanation. On other occasions Scandinavia is held up as a shining beacon. Clearly it is not always a shining beacon and is not always what it is cracked up to be, especially when it comes to St. Lague or modified St. Lague.

I am pleased that the Minister and his advisers have at least worked out the consequences of the two systems and I broadly concur. It is only at this time of night that one could possibly start to discuss matters like this. If we discussed it in the broad light of day, somebody might come along and take us all away. I might say also that a little wine of the country might go down quite well and even improve the debate. As we cannot have that, there we are.

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I am satisfied. I felt it was worth returning to the issue. I believe I withdrew it on the last occasion but it was worth getting the Government to put on record why they favoured d'Hondt rather than either of the St. Lague variations. After the election in May, when people make the calculation, we look forward to seeing whether or not the results would have been different or more favourable to the smaller parties if we had chosen either of the St. Lague methods. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 47 not moved.]

Clause 7 [Allocation of seats to regional members]:

[Amendments Nos. 48 to 52 not moved.]

Clause 9 [Regional vacancies]:

Lord Mackay of Ardbrecknish moved Amendment No. 53.

Page 5, line 15, leave out ("applies") and insert ("and section (Regional vacancies: election) apply").

The noble Lord said: My Lords, Amendment No. 53 is grouped with Amendments Nos. 54 and 56 to 59. Amendment No. 53 is in fact a paving amendment. The two important amendments are Amendments Nos. 58 and 59. They relate to by-elections.

The Bill as it stands means that if a by-election is called either because of a member dying or resigning--with some qualifications that the Minister has kindly agreed to include; and I thank him for that--the position is filled by the person next on the list who is still a member of the party, is willing to go to the parliament and is in good standing with the party as well. I believe we achieved all those objectives.

The problem arises if, for any reason, the list runs out. That may be particularly true if a party does not put forward all its members. After all, after two years a few may have gone off to do other things. Some may have been offered attractive jobs and feel that a year in the Scottish parliament as top-up is not what they should be doing in the future; they may have been elected to the other place or even to the European Parliament in the interim. It may not happen often, but if we run out of lists, what do we do?

Another question arises if an independent member dies or resigns. As the provisions stand, the seat would remain vacant because that member was an independent. At the risk of being accused again of purity, I suggest that both those eventualities mean that the party balance, which the second vote is intended to maintain or to create, in the parliament would have been destroyed.

That is why I am asking the Government why they are not providing for a by-election, as they have in the European Parliamentary Elections Bill under which there would be a by-election in a similar situation. In fact, that would be a first-past-the-post by-election in a very large constituency. I repeat that that Bill provides for a by-election. I believe that in this Bill there should be such a provision for a by-election in the event of a party running out of names on the list to fill a vacancy.

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I have two methods of achieving that end. The first is my favoured solution and it is the most straightforward. We could simply call a by-election across the region on a first-past-the-post basis; each of the parties could put up one candidate; there would be a good scrap and somebody would win.

My second method is more sophisticated. Perhaps it is "purer", if I may put it that way. It is based on the fact that the original intention of the d'Hondt divisor was that such a seat would go to the Labour Party or to an independent if it had been so held previously. Therefore, in the case of a Labour-held seat, if there is a by-election only members of the Labour Party could be put forward as candidates. The electorate would then make a choice. However, I suspect that that is far too complex and far too "pure" and that my rather less pure, but more understandable, first amendment is the better. I suspect that the person who, along with me, drafted this amendment found that, late at night, her sense of humour was getting the better of her! I recognise that there are complications with it.

However, if the seats are to achieve that which they are supposed to achieve and if vacant seats have to be filled later, even if there is a by-election, they should be filled by the party which previously held that seat. I know that the Minister will say that I am right about that argument and that that is why the seat will be left vacant if it cannot be filled from the list. I am getting to know the Government's arguments! I understand them, but I think it is more important to fill the vacancy and to ensure that there are always 129 members of the Scottish parliament.

So, my favoured amendment is Amendment No. 58 which would mean an ordinary by-election and which, as far as the top-up is concerned, would put this Bill on all fours with the European Parliamentary Elections Bill. I beg to move.

Lord Sewel: My Lords, the noble Lord, Lord Mackay, is getting so good at working out the Government's arguments that he may, indeed, be offered a job on the Government Front Bench if he continues in a similar vein for much longer. I believe that the reasons why the Government are opposed to these amendments became clear as the noble Lord tried to advance his argument, particularly in relation to his "pure" version.

The problem is that the list system here is used as a corrective to introduce and to maintain proportionality. That is why this situation is different from what happens in a European parliamentary election. Clearly, if a vacancy occurs, as the noble Lord indicated, the party list is used. That is why we have provided for a list of 12 rather than the nine mentioned by the noble Lord, Lord Steel of Aikwood. That is to ensure that there is every opportunity for the party concerned to be in a position to provide someone who is still ready, willing and able to do the job.

However, if for some reason the party list runs out of candidates and there is a by-election, it is more than likely that the by-election would add to the disproportionality of the parliament. Perhaps I may refer--again, purely hypothetically--to a Conservative

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list member in Glasgow. If he were by some act of God to secure election to the other place during his period on the list in the Scottish parliament, a vacancy might well occur. If a by-election arose in the Glasgow list constituency, I suggest it is highly unlikely that the Conservative candidate would be successful. The probable outcome would be to add to the Labour representation. That would have the effect of enhancing the disproportionality within the system.

Although I can understand the attractions of a by-election for the noble Lord, Lord Mackay of Ardbrecknish--namely, that it provides him with the opportunity for a good scrap--I do not think it logically fits the structure that we have whereby the whole list system exists to enhance proportionality and, by definition, gives greater opportunity of election to members of those parties who have not done particularly well through the first-past-the-post system. If you then have a by-election based on first-past-the-post, you are likely to make the problem of disproportionality even worse.

I suspect that the noble Lord, Lord Mackay, is looking through a glass darkly when he proposes his "pure" system; that is, that we have a by-election limited to those candidates put forward by one political party. One would then require a political party to put forward a number of different candidates. That is an interesting idea. I am not quite sure what happens if an independent's place falls vacant. I believe that on reflection it will be clear that one of these proposals is totally bizarre and fanciful and the other works to produce the opposite result to that which the whole corrective principle is there to sustain. On that basis I hope the noble Lord will feel able to withdraw his amendment.

10.15 p.m.

Lord Mackay of Ardbrecknish: My Lords, the trouble with debate is that one can change one's mind during the course of the debate. The noble Lord has persuaded me that Amendment No. 58 is not valid because, as he rightly points out, it could distort party advantage. For example, if, as we hope, a Conservative member or two will be elected in Glasgow in the top-up, and a Liberal Democrat member will be elected in the top-up, and one of them falls by the wayside for whatever reason, a first-past-the-post by-election in Glasgow would be unlikely to produce a victory for either the Liberal Democrats or the Conservatives, unless the world is going to change quite markedly in the next couple of years. Such a situation may well produce a by-election victory for the Scottish National Party, which I suppose none of us would want. Therefore I think the noble Lord has convinced me on that first option.

However, as regards the second option, while I appreciate that a political party would have to put up more than one person, it would be interesting to see how it would attract the votes of the members of the other political parties. I must admit I was quite tempted by that idea. I suppose there is a third option which I may return to later. As we have allowed the parties to put up the candidates for the list, if the list ran out it would not

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be all that illogical to allow the party to nominate someone for the vacancy, if we needed to fill the vacancy. Therefore I think there is a third option. However, for the moment I shall withdraw my amendment and contemplate further the question of by-elections and the top-ups. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 54 to 59 not moved.]

Clause 11 [Power to make provision about elections]:

[Amendments Nos. 60 to 63 not moved.]

Clause 14 [Disqualification from membership of the Parliament]:

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