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Lord Mackay of Ardbrecknish: My Lords, I am grateful to the Minister for his explanation. Obviously, he could touch on only one or two issues in this long piece of secondary legislation. I wish to make two general points first.

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This legislation underlines the problem that we in the legislature have of being unable to make any amendment to any provision in a piece of secondary legislation. I have no problem with the great bulk of this legislation, but I am concerned about one or two aspects. My dilemma, and that of my colleagues in the other place, is that we either accept it all or reject it all. I believe that as parliamentarians we must think long and hard about a better way of dealing with secondary legislation, especially when noble Lords see the size of this document.

My second point is that which I made on the equivalent Welsh and Scottish orders. Clearly, most of the legislation represents a complex series of changes to the Representation of the People Act in order to allow for lists. Lists are alien not only to that Act but to the British political tradition. I will leave that aside as we have already had that debate. However, I hope that the Government will consider the suggestion.

I appreciate that the answer may be that between the passage of the original Bill and these elections they had no time to bring forward primary legislation. However, I believe that they should consider bringing forward a Representation of the People Bill which deals with the list system, so that in future we need not go backwards and forwards from that Act to these regulations in order to work out all the changes which have had to be made to a first-past-the-post electoral system to bring it into line with a list system.

I hope that the Minister will take that on board. I speak only for myself--I have consulted no one--but while I do not like this system I believe that it should be properly regulated. The only way to do so is to have a self-standing Act so that we are not confronted with the bitty changes we see here.

My substantive points are in ascending order. I was surprised to see that the ballot paper, which appears on page 44, has been presented horizontally and not vertically. I am delighted to see the names--the Minister always made it clear that they would appear. I had some trouble with the Minister in respect of the Welsh Bill, but I was happy that he saw the force of the argument and that the change was made in subsequent Bills.

In Scotland--I am not sure about Wales--in two weeks' time I shall be looking at a ballot paper on which the list is delineated vertically; in other words, the parties are listed one below the other. Therefore, I was surprised to see a horizontal list. I do not think that there will be confusion, although a few eyebrows may be raised in Scotland and Wales when they find that they have yet another variation of ballot papers within a few weeks. England will not have the problem on 6th May, so people will not realise that there is a vertical potential. I am intrigued that the Government decided to make the ballot paper vertical for the European elections.

As regards the deposit, I shall make two different arguments, but there is a way to bring them together. I understand that £5,000 and merely the signature of the registered party's nominating officer is enough. No longer will people have to go out and compile a list of assenters of electors who are prepared to sign the

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nomination papers. Five thousand pounds is a hefty sum for a genuine independent or small political party which wants to stand for genuine bona fide reasons. I am assuming that it will lose its deposit. That is unfair. It would be better to have a lower money threshold and insist that a list of signatures is obtained by any party or candidate wanting to stand.

On the other hand, I do not believe that £5,000 will be enough to stop people using the system for self-publicity. In the Scottish parliamentary elections a restaurant--I shall not name it because it would receive even more coverage--has registered itself for £150 as a political party and is to stand. It is £150 to register yourself as--I shall be neutral--The Salad Days Party registered from The Salad Days restaurant and £5,000 to get yourself on the ballot paper. That may sound expensive, but it will appear on the ballot paper which will be seen by every elector in a very wide area. It will also get it on many of the notices surrounding the ballot. And, if it is prepared to pay for a leaflet, it will get a free delivery to every household. That is not a bad bargain. I do not know whether anyone will use it in the European elections, but I understand from the press that someone is using it in the Scottish parliamentary elections. I shall not mention the name of the restaurant because that may encourage people. However, I believe that for future elections the Government must reconsider their decision to have no assenters.

The Minister knows that I do not like the concept of registration. I believed that it is profoundly anti- democratic and he knows that there were some difficulties. I do not know whether there have been difficulties on the European scene; I suppose that we are not near enough to that election. However, the Scottish Green Party, for example, had to become affiliated to the English Green Party in order to be allowed to stand in the Scottish elections and probably the same will be true of Wales. That is not right and we must examine the system again.

The Minister clearly knew what my two substantive points would be and therefore he dealt with them. But, I am afraid, not to my satisfaction. He will not be surprised to hear that. Rule 46 on page 37 deals with recounts. As the Minister rightly said, the same applies in Wales and Scotland on the regional list. The count will be conducted in parliamentary constituencies. When the count has finished the people in the constituency will have the right to demand a recount. The results will go to the regional returning officer who will bring them together from all the constituencies and perform the magic of d'Hondt. As I am going somewhere tonight, and the speed of the Minister's delivery leads me to suspect that he is, too, I shall not bore your Lordships with d'Hondt. You can all be grateful for that, especially noble Lords who have already heard my exposition.

There is a problem which, to be fair, was acknowledged by the noble Lords, Lord McIntosh of Haringey and Lord Sewel, when we dealt with the Welsh and Scottish elections. It is only when someone comes to the last position--perhaps the second to last, too--in the calculation for d'Hondt that he will know whether he ought to have a recount. By that time, the horse has bolted and it is not possible to go back and

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have a recount. We were told that all one can do is to have an election petition. That is not a very sensible way to deal with the recount proposition.

I did not have the time today to draw together results from the last general election as they may come out in some of the Euro-constituencies. However, I have looked at the results of the last two general elections in Scotland. For example, in Glasgow at the last election, assuming that the second votes were the same as the first votes, the very last seat was down to the Labour Party by only 730 votes over the next nearest candidate who happened to be from the SNP. Therefore, I have no great regrets in that regard. But 730 votes is not many when one considers the total number of votes.

In central Scotland it was even worse at the last election. When it came to deciding on the last vote position, which fell to the Conservative Party, I am happy to say, it fell to that party by only 137 votes over the Liberal Democrats. I believe that 137 votes is not many votes in an electorate of 400,000. It is just a few bundles. I believe that I can easily persuade your Lordships that recounts at that stage will clearly be felt to be needed to make sure that nothing happened at those original parliamentary counts to move ballot papers about.

That fact could not be known when the counts took place at parliamentary constituency level because in relation to most of the rest of the constituencies looked at in Scotland, for example, there was not much doubt about the last seat. But it was very close in two of them. In the previous election, as regards the Highlands and Islands seat, 466 separated the SNP from the Labour Party. The SNP won that seat. Therefore, the Labour Party may have an interest in trying to ensure that the original counting was right and that there was no confusion.

Over a large number of constituencies--and in this case it would be the whole of Scotland or the whole of the south east of England--not many individual mistakes need to be made to make up a difference of 173.

Somebody may be quick enough to say that, on that number of counts, the chances are that the mistakes will all balance each other out. It may be possible to prove that to me mathematically but I suspect that a candidate from a party defeated by a handful of votes for the last seat, especially if it were the only seat he would win in that area, may not feel so neutral and balanced about a lack of a recount. Therefore, we must try to find a way to deal with recounts.

I know it will be difficult and I know what may happen. It may be necessary to delay the decision on the last seat in order to have a recount provision. Boxes would have to be reopened and the system gone through again. But the Government are conceding that that may have to happen in any event but only, much later, after an election petition. That is very unsatisfactory.

Lastly, I wish to raise the question of by-elections. I checked the Scotland Bill and I left it thinking that there were no provisions for by-elections. I have read quite carefully Sections 9 and 10 of the Act. It does not seem to me that there is any provision for by-elections.

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Perhaps I should have looked at the orders to see whether the Government have dealt with them in another way. Are the Government consistent between the three and are the Government sure that they are consistent between the three?

Secondly, is it possible to have by-elections in a proportional representation system. The position is that if a member dies or resigns, his seat goes to the next person on his party's list for the simple reason that the d'Hondt calculator is supposed to decide on proportionality. The seat goes to the next person on the party's list.

The noble Lord and I had many discussions about this and we reached a sort of middle-ground solution as regards what would happen if the next person on the list did not want to be elected. He may have found a job which is even better than being a Member of the European Parliament and no longer wished to be elected. He should then be able to say to the returning officer that he does not want to be elected and it would then be necessary to go to the next person on the list.

However, the other point I raised, which the Minister took on board, was in relation to the situation in which the next person on the list has left the party. He may want to go to the European Parliament--and who would not, given the salaries and conditions?--but he no longer represents the party. The Minister came forward with the provision that the party must certify that the person is still in the party.

I am glad that the Minister underlined that point because one difficulty I had was that while it was clear to me that it would be quite wrong for the person, if he were no longer in the party, to receive the seat, equally, it would be quite wrong for the party to decide that it no longer liked the colour of his tie, his face or that it preferred a candidate lower down the list. I am glad that the Minister put on record that the only reason would be if the person had left the party. That is fine and right and retains the proportionality.

Let us say that the Labour Party gains one seat in the south. I do not know whether or not it will do so. It will probably gain more than one seat, but let us say that it gains only one seat. I grant to your Lordships that it is unlikely but let us assume that the problem occurs in relation to the Labour Party's list. It goes down the list and has no other candidate. That means that there must be a by-election. That by-election is not held on a proportional system at all. It is held on first-past-the-post. Holding an election in those large regions using the first-past-the-post system means, inevitably, that the party which won the first seat on the d'Hondt calculator will win the by-election. It is nothing to do with proportionality. It may be a member of one of the other parties who wins. It may be the party which gained only one seat. The Labour Party will lose the one seat to which it is entitled by proportionality.

It seems to me that there is a huge contradiction by holding elections using the d'Hondt system, which is looking for proportionality, and filling up places of retired or dying members from the party's list because, rightly, that keeps the proportionality. But if there are

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no more candidates on the party list, rather than leave the seat empty, which at least would be something, a by-election must be held in which that party is unlikely to gain back the seat. Therefore, the proportionality is shot through.

Perhaps I may say as a mathematician that, if we are to have proportionality, for goodness sake let us have some purity about it and let us not write these errors.

Holding the seat vacant is not the best solution but it is the only solution in a proportional system. We canvassed other possible solutions which were shot down by either the Minister or myself. I believe that I shot down one of my own proposals in mid-speech, because this is a difficult matter, but the solution of having by-elections where the party may lose the seat to which it is entitled is not the answer to that problem.

Otherwise, I am content with the regulations and I look forward to hearing the Minister yet again try to defend one or two of those positions.

7.30 p.m.

Lord Dholakia: My Lords, I am grateful to the Minister for his explanation of the regulations. My noble friend Lord McNally would have responded from this side of the House but, unfortunately, he is not well and it falls to me to respond on this matter.

We welcome many aspects of the regulations. We are pleased to see a national limit on party expenditure. That is right and the Neill committee was right to suggest it. We welcome also the change to take account of the Bowman case which allows for third parties--not political parties but individuals or organisations--who wish to show support for a candidate by expenditure which is more than the current nominal £5.

In the other place my right honourable friend Alan Beith expressed his concern about the appearance of the ballot paper. I am not particular bothered about whether it is horizontal or vertical but I am more worried about the arrow on the ballot paper which points straight to the Conservative box. I hope that it will not give that party any added advantage. I am sure that some research would have been carried out on that aspect and I am sure that the risk of confusion is very small.

I have some sympathy with the views expressed by the noble Lord, Lord Mackay of Ardbrecknish. I am afraid I find it difficult to pronounce his title; he probably finds it difficult to pronounce mine. The schedule provides for local recounts, as the noble Lord quite rightly pointed out, but not for recounts for the whole region in the event of a close result. Local returning officers can authorise a recount in the local counting centre, but the overall regional result will not be known at that stage.

The Government say that regional recounts will not take place because all staff would have to wait in the counting centres for the final result in the region to be declared. That would be costly and impractical. In the event of a close regional result the returning officer can recalculate, but cannot order local recounts.

We have no doubt that that will get us into difficulties. Returning officers, obviously, do not like recounts--in many cases, rightly so--as many of those

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who have fought elections will know. However, in the new circumstances there will be much more pressure for recounts in the light of regional situations. If a party, be it a leading party or a second party, thinks that it might have enough votes to gain one seat, a request for a recount is reasonable.

We need to avoid court actions, such as that at Winchester. I am certainly not complaining about the court's decision in that case. The arguments have been well put both here and in the other place. This problem needs to be addressed and I am sure that we shall have an opportunity, soon after the election, to look at the regulations. We would not wish, in any way, to hinder progress and we shall certainly support the regulations.

7.41 p.m.

Lord Williams of Mostyn: My Lords, I welcome the comments that have been made. Many points to which both noble Lords have referred are dealt with by the assurance that I gave, and I repeat, that we intend to review the running of such elections soon after the 10th June election. I am happy to give that assurance once more.

The noble Lord, Lord Mackay of Ardbrecknish, referred to his dislike of the list. We have held that debate on several other occasions and it is not fundamental to the content of these regulations.

The noble Lord makes the point that there is a case for--I believe I can fairly paraphrase him--a codification of the Representation of the People Act, together with any subsequent and consequential regulations. I think that case should be made. I think your Lordships will know that it would depend on legislative time. If the legislative time of this House is to be unnaturally taken up with debates, which are extremely lengthy, about the reform of this House, it would be difficult indeed for me to please the noble Lord, Lord Mackay of Ardbrecknish, by introducing a codification Bill.

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