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Baroness Hamwee: In Amendment No. 74, which stands in my name and that of my noble friend and in the names of the noble Baronesses, Lady Hanham and Lady Blatch, I too was seeking to understand what subsection (2) means. It states:
Lord Rooker: Again, I think I have a perfectly reasonable explanation for the amendments and for this part of the Bill. I was waiting for one of the noble Baronesses to say, "We have looked at the Notes on Clauses and there is nothing on Clause 11". So I shall say that.
It will take a little while, but I want to explain how this part of the Bill is intended to work. It is not quite as the noble Baronesses think. Clause 11(1) and (2) relate to Section 129 of the Political Parties, Elections and Referendums Act 2000. As Members of the Committee are aware, that Act makes general provision for UK, national and regional referendums. Section 129 gives the Secretary of State a power to make provision by order for, or in connection with, regulating the conduct of such referendums. I shall refer to that as the "conduct section". I can give details later.
The Lord Chancellor's Department, which has policy responsibility for the generic legislation on referendums, is currently preparing a draft order under the conduct section. That is intended to provide a generic framework to regulate the conduct of referendums. Drafts of the order have been the subject of discussion in the Electoral Commission's regional referendums working group, and the Lord Chancellor's Department hopes to extend that to wider consultation in the new yearthe new year being now.
The Lord Chancellor's Department's consultation will take time to complete and it will then want seriously to consider the responses. So I cannot say precisely when the generic conduct order will be made and, of course, we cannot predict exactly when the Bill will be enacted. The generic conduct order could come first by a little way, or the Bill may just reach the statute book first. I simply do not know. Clause 11(2) is simply designed to ensure that the generic conduct
If Amendment No. 74 were accepted there would be doubt as to whether a conduct order made before enactment of the Bill would apply to a referendum under the Bill. The 2000 Act, which is the main Act in this regard, has of course been in force for several years and the power in Section 129(1) of that Act is exercisable now. We want to ensure that relevant conduct orders about referendums made now will apply to referendums under the Bill.
It is as simple as that. I hope that that is a satisfactory explanation. In other words, it is notI repeat, notretrospective legislation. The legislative power exists now. The process is under way and it makes sense for the avoidance of doubt for the conduct order to apply to every referendum, including those that may be held under the Bill.
Amendment No. 73 is intended to ensure that the same arrangements would apply to the conduct of all referendums that are regulated by an order under Section 129 of the Political Parties, Elections and Referendums Act 2000 and held on the same day, wherever they are held in the United Kingdom. I can reassure the noble Baronesses that the Government's broad approach will be to have as uniform a set of rules as appropriate governing all referendums under the Bill and all referendums that fall within Part VII of the 2000 Act.
Indeed, as I said, the Lord Chancellor's Department is in the process of producing a generic conduct order covering not only conduct of referendums on elected assemblies but conduct of all other referendums under the 2000 Act. In fact, that generic conduct order would apply equally to Scotland, Wales and Northern Ireland as to England. The draft order will be laid before Parliament, and the making of such an order is, by the way, subject to the affirmative resolution of both Houses.
However, we need to retain the flexibility to make different provision for the referendums that would be held under the Bill. There is nothing sinister about that. For example, we may need to make provision under Section 129(1) for voting to be all-postalI said mayfor one referendum or set of referendums. Indeed, the Political Parties, Elections and Referendums Act 2000 would already allow for that in Section 156(5).
For the avoidance of doubt, because I will be hauled over the coals if I do not and because it may avoid lots of further questions, let me answer the question: what will the conduct order cover. That is a basic question, so I want to put a few basics on record for our future deliberations.
The generic conduct of referendums order will apply provisions of the Representation of the People Acts and regulations on elections to the administration of a referendum poll, as well as making completely new provision. The following list is not exclusive, but it will cover measures such as: basic forms and ballot papers; appointment of presiding officers and clerks at polling
Such material will be included in generic conduct orders, which will be fairly widespread. It is not being done because of the Bill; it would be done whether or not the Bill existed. I hope that it makes the position much clearer and gives a decent explanation of the otherwise unclear parts of Clause 11.
Baroness Hamwee: It is a pity if legislation that clearly applies must be ratifiedI do not use that term technicallyby being referred to in subsequent legislation. The more often one says that a provision in a previous Act applies when it clearly does, the more one casts doubt on the applicability of other provisions not referred to. I make the point because much of our legislation is complicated. Sometimes it is more straightforward not to say anything.
Baroness Hanham: I agree. It would be helpful if we could see the draft order. It may be being consulted upon, but I presume that it is available even to Peers. May we see the draft conduct order before Report stage? I am not sure why it should not be referred to in the Bill if it will be part of legislation. The whole supplementary section seems to add confusion. Even after the Minister's response, it is not clear how the system will operate. I shall withdraw the amendment for the moment.
Lord Rooker: I shall ask about the availability of the draft order. I do not have a precise day-to-day timetable. But, if the drafts have been discussed by the Electoral Commission's regional referendums working groupI do not know the acronym for itand there is a proposal to carry out wider consultation, I shall do my best to ensure that a draft is available. I do not know whether it will be the draft that is ready for consultation.
On the noble Baroness's second point, I suspect that it falls foul of one of the golden rules of parliamentary counselnever legislate for the same thing twice in two different Bills, even if the words are the same. The scope for doubt and problems in the courts is enormous. The provision is not included in the Bill because it is already covered in another Act.
These are probing amendments to help us to understand more of what is going on in Clause 12. They would remove subsections (2) to (4). Subsection (2) provides that the Secretary of State must consider the level of interest in the holding of a referendum. It defies belief that the soundings could really be about interest in holding a referendum, as distinct from a wish to have an assembly. Three daysfour days, including Second Readingof debate in the House have done nothing to alter that fact. The language used by all noble Lords, including me, in the debate last Thursday confused those two issues. If we are having difficulty maintaining the distinction, it is impossible to believe that those responding to the soundings exercise have been able to maintain it. Would the Government instigate a referendum if they thought that the answer would be "No"?
The Conservatives have added their names to Amendment No. 79. Subsection (3) provides that the Secretary of State can consider differences in the level of interest in different regions. I do not understand what that adds to subsection (2). Perhaps the Minister can help me. Why does it say "may consider", rather than "must consider"? Is that simply a matter of the style of drafting? If the provision is permissive, rather than mandatory, I will be even more confused.
Can the Minister tell us what amounts to "evidence" for that purpose and what is "published material"? Why is the material limited by the adjective "published"? Is the reference intended to mean academic and similar material? If so, why limit "views expressed" to those "provided" to the Secretary of State? Cannot he be expected to be aware of all views? Is the soundings exercise limited to formal responses? If so, why is "published material" not within that defined and confined group? I beg to move.
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