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In answer to the noble Lord, Lord Lyell, all Northern Ireland departments have been consulted on any consequential amendments. They will continue to be consulted, but it is now a matter for the Northern Ireland Executive. If there is anything more that I could or should have said, I shall write to him. In respect of tigers, although I have never heard of them in Northern Ireland, it is a delight to know that they have indigenous tigers and other exotic animals. I look forward to hearing more about such things during my visits to the Province.

4.15 pm

Lord Kilclooney: Before the Minister sits down, I want to raise two or three points. First, we had a Celtic tiger in Ireland but it is now dead. Secondly, on local government, co-options take place if it is the unanimous decision of the councillors. If one councillor objects, there cannot be a co-option and there must be a by-election. Will that continue to be the procedure

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between now and 2011? Will a co-option take place only if it is unanimously agreed in the existing council; and if one person objects, will there still be by-elections from now to 2011?

Thirdly, I do not think that the Minister answered my question about elections in 2011. She said that there will be elections in 2011—that is accepted—but if there is no agreement on the new boundaries, will we definitely have local elections under the existing boundaries?

Baroness Royall of Blaisdon: It is absolutely clear that the current system of co-option will continue. There will therefore be by-elections, as there are now, and there will be no changes. If by 2011 we do not reach a conclusion that enables us to have elections under the new boundaries, I understand that the Government will come back to Parliament and postpone the elections until it is possible to have them. I am wrong—perhaps I may seek advice.

We will have to decide in due course whether the elections will be held under new or old boundaries when we have a clearer idea of progress. We will keep Parliament informed of that progress. I beg you Lordships’ pardon for being misleading. In 2011, if there has been no conclusion to the discussions, we will take a view on whether the elections should take place under the old boundaries. We will review the situation then.

Lord Kilclooney: In order to clarify my mind, perhaps I may ask a further question. Does that mean that even if there is no agreement on the new boundaries, we will still definitely have local elections in Northern Ireland in 2011? If so, they must be on the basis of the existing boundaries. Is that the position?

Baroness Royall of Blaisdon: That would seem logical. However, for the moment, I must say that before too much of 2011 elapses, we will look at the reviews, consider the progress and come back to Parliament. At this time, it would be wrong for me to say whether that would mean that elections would take place under the old boundaries. It is too soon to say.

Motion agreed.

Northern Ireland Assembly (Elections) (Amendment) Order 2009

1st Report Joint Committee Statutory Instruments
The Northern Ireland Assembly (Elections) (Amendment) Order 2009

Considered in Grand Committee

4.19 pm

Moved By Baroness Royall of Blaisdon

Baroness Royall of Blaisdon:I am sure that Members of the Committee have noticed that this order is lengthy, and I hope it will assist the Committee if I set out the legislative background and explain why it is necessary. The Northern Ireland Assembly (Elections) Order 2001 governs the conduct of elections to the Northern Ireland Assembly. It applies to Assembly

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elections, with the necessary modifications, provisions on the conduct of parliamentary elections contained in various pieces of electoral legislation, most notably in the Representation of the People Act 1983 and the Representation of the People (Northern Ireland) Regulations 2008.

The Committee may be aware that both of those pieces of legislation on parliamentary elections have been amended recently. The 1983 Act was amended by the Electoral Administration Act 2006, and, following that, consequential changes were required to the secondary legislation governing parliamentary elections. These were set out in the 2008 regulations. As the 2001 Assembly order applies to both pieces of legislation, we also need to make the appropriate changes to it.

Therefore, the main purpose of the draft order is to update the 2001 order to ensure that the framework for administering elections to the Northern Ireland Assembly is consistent with the legislative changes recently made in respect of parliamentary elections. It is for this reason that the order is such a sizeable one and I can assure the Committee that the vast majority of provisions within it are technical or merely make the necessary updates to which I have referred.

However, although the main purpose of the order is to update the legislative framework for Assembly elections more generally, bringing forward this legislation also provides an opportunity for other changes to be made. For that reason, in July 2008, the Northern Ireland Office launched a full public consultation entitled, Improving the Administration of Elections to the Northern Ireland Assembly. The consultation paper discussed a number of areas where legislative reform might be considered worthwhile. Responses to the consultation were received from, among others, the four largest Northern Ireland parties, the Chief Electoral Officer and the Electoral Commission.

As a result of the consultation, the order also includes some substantive provisions that I wish to draw to the Committee’s attention. The first relates to filling vacancies in the Assembly that arise during the term. Assembly elections are held under the single transferable vote form of proportional representation. It is widely recognised that by-elections to replace members in a PR system may result in parties being disproportionately represented in a constituency.

At PR elections, several seats are usually available for each constituency and they are allocated proportionately to candidates who receive enough votes to meet the quota for that constituency. If one of those seats becomes vacant and there is a by-election, the seat is likely to go to a candidate from the strongest party in that constituency, even if it had previously been filled by a candidate from another party, thus distorting the careful balance that would have previously existed. For this reason, the 2001 order provides for candidates to submit a list of up to six substitutes ranked in order of preference when delivering their nomination papers. This list is then used to fill any vacancy arising should that seat be vacated because, for example, the member has died or resigned during the course of an Assembly term.

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Although this system has been effective in reducing the possibility of by-elections in a PR system, a number of practical problems have been identified in relation to it. For example, those designated as substitutes at the time of the election may be unable or unwilling to fill a vacant seat at the time the vacancy actually arises. They may have assumed other responsibilities during the course of the Assembly term or other factors may have emerged that did not exist at the time the person was first listed as a substitute, such as illness or family commitments, or they may have changed or withdrawn their membership of a political party since then. For these reasons, the consultation paper proposed an alternative process for filling vacancies, which is set out in Article 6 of the draft order.

Under the new system, if a seat becomes vacant, the nominating officer of the party that the member belonged to at the time he or she was elected will be asked to nominate a replacement MLA to fill that seat. For independent MLAs, a slight variation of the current system will continue. However, rather than provide a list of substitutes at the time they are nominated as a candidate, they may do so only once they are elected. An independent MLA may modify this list during the Assembly’s term, providing proper notice is given to the Chief Electoral Officer. The consultation revealed that there was strong support for the proposed new method from most respondents, including the four largest Northern Ireland parties.

The draft order also includes other minor amendments to the 2001 order that received widespread support from respondents to the consultation, which I will set out briefly. Currently, at an Assembly election, the returning officer may suspend the count between 7 pm and 9 am, but only if the counting agents agree. Assembly election counts rarely finish before 7 pm due to the use of the single transferable vote system. Although it is normal practice for the counting agents and the returning officer to agree to suspend the count if it appears unlikely that the count will be concluded that evening, in a number of constituencies during the 2007 Assembly election agreement could not be reached to suspend. This resulted in the counts continuing well into the night with the last constituency declaring in the early hours of the following day.

Counting in an STV system is a complex exercise. It is important both for the welfare of counting staff and for the integrity of the count itself for the count to be suspended, if necessary, at a reasonable time. For this reason, the draft order provides for the count to be suspended at 11 pm unless the counting agents and the returning officer agree otherwise. This is the practice at local government elections in Northern Ireland, which are also held under the single transferable vote system.

The draft order also provides for an extension of the period in which nominations can be made, in light of the increased number of candidates at Assembly elections compared to parliamentary elections. In addition, it provides for a party’s emblem to be included on a ballot paper at the request of a party nominating officer rather than by the candidate, as is currently the case. It is hoped that these administrative changes will greatly assist the Chief Electoral Officer and party officials at what is usually a busy period for all concerned.

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In summary, the order is essential to ensure that the legislative framework for administering elections to the Northern Ireland Assembly is consistent and up to date with developments in electoral law across the UK. I hope that Members of the Committee will also agree that the current system for filling vacancies in the Assembly requires reform, and that the proposed new method is the most suitable under the circumstances and is widely supported by the political parties in Northern Ireland. I beg to move.

Lord Glentoran: Again, I thank the noble Baroness for that lengthy but clear description of the contents and purpose of this statutory instrument. Having not sought election myself in the past, other than on the one occasion that allows me to be here, I am not an expert in the details and minutiae of parliamentary elections but others here are.

In a personal vein, I have never been a supporter of proportional representation. It complicates things enormously. However, we are where we are in Northern Ireland, and it is probably the best form of electoral system. Everyone involved in the administration of elections there deserves congratulations. Since I have been doing this job, over quite a number of years, we have moved miles to remove fraud, improve efficiency and get all sorts of lists and dates up to date. The system for administering elections in Northern Ireland is now way ahead and far more secure than that of the rest of the United Kingdom. It is high time that the United Kingdom Government got themselves together and got a more open, clear, honest, straightforward and well managed electoral system.

Having said that, I leave it to others who are rather more experienced than me to comment on proportional representation and whatever else. I support the order.

Baroness Harris of Richmond: I, too, thank the noble Baroness for presenting the order, the schedules of which are indeed complex. However, it is useful to have the consolidated provisions, particularly of Schedules 1 and 2, reflecting all the changes made by the Electoral Administration Act 2006. It will certainly make things simpler for political parties and others to have all the relevant information in one place, rather than constantly cross-referencing with previous orders.

We on this side of the Committee particularly welcome the provisions of Article 4, which reinforce that an elector can vote only once at an Assembly election. We hope that the unambiguous language in the order will serve to reinforce existing legislation to combat electoral fraud in Northern Ireland. As the noble Lord, Lord Glentoran, has graphically demonstrated, Northern Ireland is now leading the way in elections.

On the appointment of replacement members of the Assembly when a seat becomes vacant, have the Government given consideration to the importance of democratic transparency? Do they believe that it is important that those who are nominated to fill vacancies are known to the electorate at the time of the original election and that they are subject to scrutiny? On independence, we are very pleased to see that an order of preference will be indicated in the substitutes list; otherwise it would be impossible to

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know how to choose between the substitutes. Having said all that, generally we welcome the provisions of this order.

4.30 pm

Lord Browne of Belmont: I, too, support the Northern Ireland Assembly (Elections) (Amendment) Order 2009. It appears to be a progressive advancement in the transparency of the representation of the people of Northern Ireland. Previously, it appeared to be a bizarre and truly undemocratic situation whereby a candidate for the Northern Ireland Assembly could personally appoint five unknown individuals who would be able to fill the seat should a vacancy arise during the four-year term. Therefore, it is entirely appropriate, as set out in Article 6, that such a vacancy should rest with a party’s nominating officer until such time as the electorate is able to express its full wish for the six-seat constituency on a proportional basis.

However, one anomaly that appears to arise is that such a system of secret personal nominees will continue to pertain for independent members who are elected outside a previously established political party. Worse still, the current legislation proposes that rather than making the nomination before election, candidates will only have to do so if and when elected. Surely, it would be democratically preferable if such a process not only happened before the election, but that the list of individuals was published so that the electorate in any particular constituency would be aware of the likely replacement if a vacancy were to arise. Could the noble Baroness explain whether consideration was given to that at any time and why does it not feature in the legislation as currently outlined?

Finally, I would be very grateful if the noble Baroness could outline whether consideration was given to those candidates who stood at the Assembly Election in 2007 and stood in more than one constituency. I wonder whether such blanket candidacy should be banned and, if not, what should occur if a candidate were successfully elected to more than one constituency?

Lord Kilclooney: I know who the noble Lord is getting at there. I also thank the noble Baroness for her very clear presentation of this order. I welcome it. I declare an interest as a recipient of a pension from all the Assemblies and Parliaments that have existed at Stormont since 1965. Over the past 40 or so years, I have seen it all.

I welcome the fact that elections will continue to be on the basis of proportional representation. Education in Northern Ireland is good: we understand proportional representation and we have no difficulty whatever in exercising it. It gives a much fairer political representation across the Province than the first-past-the-post system would. I welcome proportional representation. I live in the west of the Province and if it were not for proportional representation, there would be very few pro-British members elected to the Northern Ireland Assembly in the western part of Northern Ireland. It is a formula for fair representation.

I agree with the noble Lord, Lord Glentoran, that Northern Ireland elections are very fair and free, and set an example, compared with the cheating which

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goes on in England. I trust that the authorities here will look at the subject more closely in future elections.

On vacancies, I agree entirely that the nominating officer should be the leader of the party that was elected in the first instance. For example, someone could be elected as a member of the Democratic Unionist Party—the largest party in Northern Ireland—and could subsequently leave the Democratic Unionist Party to join some other funny party. If that person were then able to nominate his successor, that successor would no longer represent the views of the electorate in the constituency. It is very wise to change the system to one whereby the leader of the party to which the member was elected at the original election continues to be the nominating officer for a subsequent vacancy to be filled.

Lord Bew: The Northern Ireland Assembly (Elections) (Amendment) Order 2009 is, technically, a very accomplished piece of work. However, we should recognise that the immediate effect of both orders before us is slightly to shift power from the electorate to the political elites and to the political class in the north in a very small way. I do not want to overstate that. Like my noble friend Lord Kilclooney, I want to look again at Article 6: it makes a new provision about the circumstances which will follow when Assembly seats become vacant. When an elected MLA is not a member of a registered political party, they have to provide a list of six persons in rank order to succeed him or her in the event of a vacancy. More importantly, when a vacancy occurs in a registered political party, the nomination is in the hands of the party nominating officer or leader, even if the individual creating the vacancy does not continue to be a party member. My noble friend Lord Kilclooney has just referred to such a possibility.

There is one lacuna in the order: it does not explain the Government’s thinking on this point. It may be exactly as my noble friend Lord Kilclooney has expressed it, but there is no actual explanation about why this route has been chosen. In her introduction, the noble Baroness made the point that in PR elections a by-election can distort the balance in a constituency. None the less, many countries in that circumstance go ahead and hold an election and, as it were, take the risk of consulting the electorate. It is not always the case that the countries operating the PR system choose to say that they will nominate in order to preserve the existing party balance.

I am asking for some clarification of the Government’s thinking. It may be the same as that of my noble friend Lord Kilclooney. It is perfectly reasonable to think that it should be done that way, but nothing in the order explains why the Government have come to that conclusion.

Baroness Royall of Blaisdon: I am grateful for the wide support for this order. I note the disparate views which have been expressed about the system of election in Northern Ireland. Like the noble Lord, Lord Glentoran, I thank all those who have been involved in the organisation of elections in Northern Ireland and I congratulate them on enabling free and fair elections. They have done a very fine job.

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The noble Baroness, Lady Harris, correctly pointed out that the order will make things much simpler for the people of Northern Ireland. All the information that they require on elections will be in one place. It is particularly important that it is clearly stipulated that an elector can vote only once.

On transparency, which is very important, we believe that generally it is the case that when electors vote for representatives of political parties they do so because they support that party's position on certain matters in line with the manifesto of that party. We therefore believe that it makes sense for the party to decide who should fill that seat. We have of course reflected on transparency.

I am grateful for the strong support of the noble Lord, Lord Browne, and I hear what he says about the anomaly, as he sees it, on independence. However, issues relating to that were set out in the consultation paper and it was widely supported. It is a difficult issue, but as the people of Northern Ireland support the proposal, we believe that it is the right thing to do.

The noble Lord, Lord Kilclooney, has an extraordinary record of service to democracy in Northern Ireland. It is remarkable in that since 1965 he has been involved in so many parts of the democratic system there. I, too, think that Northern Ireland should be very proud that it has fraud-free elections.

The noble Lord, Lord Bew, suggested that a certain amount of power was being transferred from the people to the political elite. I can see why he has arrived at that view, but we believe that this process is the best way forward. In some countries, there are by-elections under a system of proportional representation. However, we think that this is the best way forward in Northern Ireland, where it is important to have political balance and where all such things are taken into consideration.

I am grateful for the support of all Members of the Committee.

Motion agreed.

Welsh Ministers (Transfer of Functions) (No. 2) Order 2009

3rd Report Joint Committee on Statutory Instruments
Welsh Ministers (Transfer of Functions) (No. 2) Order 2009

Considered in Grand Committee

4.41 pm

Moved By Lord Davies of Oldham

Lord Davies of Oldham: The draft order seeks to effect the transfer of functions under the Prisons Act 1952 from UK Government Ministers of the Crown to the Welsh Ministers. It will help to improve the quality and relevance of the learning undertaken in the prison estate in Wales.

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The duty to promote the education of the people of Wales contained in Section 10 of the Education Act 1996 was transferred to the National Assembly for Wales in 1999 under National Assembly for Wales (Transfer of Functions) Order 1999, SI (1999/672), along with the majority of functions in the Education Acts. These functions are now exercised by the Welsh Ministers by virtue of the Government of Wales Act 2006. Responsibility for education of persons detained under order of a court is excluded from the scheme of the Education Acts.

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