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I was interested that some noble Lords referred to the whole selection process of first past the post. I was grateful that the noble Lord, Lord Alton, referred to the fact that in our party we had used open primaries for the selection process, and he referred to the one that took place in Totnes. I accept that one cannot use that process in every single constituency-it was a very expensive operation to mount-but variations on it can be used in others. In the constituency in which I live-Penrith and The Border-we recently selected a new candidate by means of an open primary. Anyone within the constituency who was a registered voter, for whatever party, could apply and come to the selection meeting. We had a very interesting experience and we believe that it was the first time that a candidate had been selected at a selection meeting held in the cattle mart in Penrith. It was not the most comfortable place to spend four, five or even six hours on a Sunday afternoon, but in the end we selected a candidate after a whole series of different votes until one candidate got a majority. I believe that that process showed that imaginative ways can be found to allow a much greater choice in the selection of a candidate than can ever be done by other means.
I shall say just a word or two about party lists and, in particular, about their weaknesses. In doing so, I pay tribute to my late noble friend Lord Mackay of Ardbrecknish. Many Members of the House who were here in 1998, or perhaps 1999, when we dealt with the European Parliamentary Elections Bill will remember the fight that Lord Mackay put up against the closed lists that the Government were proposing for those elections. They will remember that he tried to demand open lists for that process. We had many votes on the issue and it ping-ponged back and forth between the two Houses. In the end, we lost. It was regrettable that the Government would not give us the open lists
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I end by taking up the suggestion of the noble Lord, Lord Grocott, who said that this was possibly the time for some post-legislative scrutiny. We might look at the debates that took place between the late Lord Mackay of Ardbrecknish and whoever had the misfortune to speak for the Government on that occasion. Perhaps the noble Lord, Lord Grocott, can remember. It would be interesting to see what they said and what they predicted the effect of closed lists would be. I am sure that it would be a worthy exercise to conduct and it might lead us back to being the sort of country where, at the very least, we think about moving to open lists, if not reverting to first past the post, for European parliamentary elections.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): My Lords, I start by congratulating the noble Lord, Lord Alton, on securing this debate. It is true that an hour is not long enough but we are grateful to him for giving us the chance to debate this matter at all. I thank all noble Lords who have spoken. I was going to make an exception of the noble Lord, Lord Tyler, but I have decided that I will not.
The debate this evening has centred on electoral systems and the methods by which representatives may be elected. Of particular concern to the noble Lord, but not only him, is the impact of party list electoral systems. These are important matters and must be debated.
Party list electoral systems are undoubtedly a form of proportional representation. Broadly, they are designed to ensure that the proportion of votes that each party receives at an election determines the number of seats that they win. Under party list systems, voters elect representatives to multi-member districts or regions.
As we have heard, there are variations in party list systems according to the degree of influence that a voter has on which of a party's candidates is elected to a seat won by that party. Closed list system votes are cast for parties, and the order in which candidates on a party's list fill the seats won by that party is normally decided by the party standing at the election.
As we have heard from experts, there are different types of open list system, but voters have at least an option to cast a vote for an individual candidate from a party. This perhaps gives voters a greater say in which of a party's candidates are elected. Of course, party list electoral systems can also be used as part of mixed additional member systems to help to ensure that seats are filled in proportion to the votes cast. As noble Lords will, I am sure, agree, this Government have an excellent record in implementing constitutional reform, which has included electoral innovations. We have introduced new voting systems for the devolved Administrations, the European Parliament, the London Mayor and the Greater London Assembly. Some of
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With regard to elections for the European Parliament, of which we have heard a lot, MEPs in Great Britain were elected by the first past the post system. Under changes to European law in 2002, member states must now elect their MEPs using proportional voting systems. However, prior to these changes, we were already committed to introducing a more proportionate voting system for European elections in the UK. For the 1999 and subsequent European elections, we introduced a regional list system for electing our MEPs. I well remember the debates about which the noble Lord, Lord Henley, spoke. The reason why the Government favoured a closed list system was, in part, because under the alternative open list system that was under consideration at the time it might have been possible for a candidate low down on a party list to receive a significant number of personal votes yet still not be elected, while others higher up the list with fewer votes would be elected due to the weight of party votes. There was concern that that might undermine the legitimacy of some elected representatives. It is, of course, right that we continue to consider and debate whether this assessment remains the right one.
That brings me to the noble Lord's request that we make an assessment of the impact of party list electoral systems. The changes that we have made to voting systems have involved significant constitutional change. In January 2008 we published a review of the evidence and the experience of the new voting systems. The review examined the strengths and weaknesses of the various systems in place. As has been said on all sides, there is no panacea. There are strongly held views about which electoral system is best. As we have heard in this brief debate, all systems have their advantages and disadvantages.
Perhaps the fundamental aim should be to ensure that the electoral system is appropriate for the institutional context. For European elections and the devolved Administrations, perhaps this means reflecting the particular characteristics of specific regions and devolution settlements, but for elections to the House of Commons, I strongly believe that the voting system needs to reflect that the constituency link is vital. I hope that the House will forgive me for giving a personal example of why a single-Member constituency works in the real world. On Saturday last I attended the funeral of David Taylor, the late Member for North-West Leicestershire, in Heather, a small village in the middle of the old Leicestershire coalfields. It was bitterly cold, well below freezing and snowing heavily. Yet, hundreds upon hundreds of his constituents made the effort to attend his funeral in a gesture of affection and respect for their late Member of Parliament. They had not all voted for David Taylor; people had voted for other parties or none, but they were in the churchyard and the road leading up to the small village church. Of course, he was an outstanding Member of Parliament, but I have to pose the question: if David Taylor had been just one of a number of Members of Parliament
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Comments have been made about the impact of party-list electoral systems on voter turnout and voter alienation. Our review recognised that voter participation is often seen as a measure of confidence in democracy and the voting system in use. A number of points can be made in favour of party lists that might help to boost voter participation. As they produce proportional outcomes, voters may feel that their vote will count more and have greater weight, so are more likely to feel that they have a stake in the outcome of the election. It could be argued that electors under party-list systems have more choice as more parties have the chance of being elected. I could also say that party-list systems can help increase the representation of traditionally underrepresented groups. However, the review of voting systems noted perhaps the obvious-that turnout is a product of a complex set of factors which include voter knowledge, ease or difficulty of registering to vote, campaigning by political parties, and the impact of the news media. With regard to the European Parliament elections, turnout at each election in the UK during the period 1979 to 1994, held under the first past the post method, averaged at about 34.5 per cent.
Turnout initially fell at the 1999 European elections to 24 per cent, following the introduction of the new regional list voting system. However, turnout at the 2004 European elections rose to 38.5 per cent. This was the highest ever turnout at the European elections in the UK, and was due in part to these elections being combined with local government elections and all-postal pilots being held in certain regions. At the European elections in 2009, turnout in the UK fell slightly to 34.5 per cent.
The evidence suggests that, with the exception of the elections in 1999, turnout under the party list system for European elections in the UK does not compare unfavourably with previous elections held under the first past the post system. However, as I have explained, voter participation and turnout are influenced by a large range of factors and the available evidence suggests one sure thing: that one should exercise great caution in seeking to draw specific conclusions in respect of party list systems.
Concerns have been expressed that party list electoral systems can lead to the election of persons from extremist parties. I would say that, whatever one's views may be on party list systems, it cannot be disputed that they guarantee a high degree of proportionality in the way that seats are allocated to parties at elections. It is true that this has led to the election of persons from parties outside the mainstream: at the 2008 London Assembly elections the BNP won a London-wide seat, while at the 2009 European Parliament elections the BNP won two seats. However, as our review of voting systems found, party list systems have been beneficial to other parties, in particular the Green Party, which has won seats at the European Parliament and on the London Assembly. The review found that at European elections, the new voting system has allowed national parties in Scotland and Wales to win and maintain seats.
The noble Lord will be aware that for the European elections held from 1979 to 1994, prior to the introduction of the party list system for these elections, the Liberal Democrats and their predecessors won only two MEP seats, despite securing a significant proportion of the vote at these elections.
It has been argued that if we had used the single transferable vote system for the European elections, rather than the closed list system, the BNP would not have won any seats at those elections. I would say that at the 2009 European elections, taking the seat that the BNP achieved in the north-west region, the BNP was the fifth biggest party in a region with eight seats. It is hard to argue that it is indisputably an invalid or unfair outcome for the BNP to have won that seat, whatever one's view of that party's politics.
In a democracy, we must expect that at times persons standing for election will put forward views that many others may find unpalatable. This is an unavoidable consequence of living in an open and free society. We think it is important that when looking at electoral systems, you do not design systems simply with particular political parties in mind. We have to take a principled approach and have systems that we believe to be proper and appropriate for the particular body or institution in question.
(a) association of B with the protected characteristic including but not limited to association with one or more other persons who have the protected characteristic, or
(b) a perception by another person (A) that B has the protected characteristic.
Lord Ouseley: The purpose of this new clause is to put protection based on association or perception into the Bill. The full protection against discrimination which the Bill offers can then be as widely known to all users, or potential users-such as employers, employees, service providers, service users and public authorities-as possible.
The Explanatory Notes make very clear that protection against discrimination and harassment includes protection based on the person's association with a person with a protected characteristic-for example, as the spouse, friend, child, parent or lover of a person who has a
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That this protection should apply to association has already been clarified by the European Court of Justice in the recent case of Coleman v Attridge Law, in which the parent and full-time carer of a disabled child was discriminated against and harassed because of her association with the protected characteristic of disability. Earlier case law in the UK courts under the Race Relations Act 1976 had established this principle for racial grounds. In looking at association it has been well established under the Race Relations Act 1976, for 25 years or more, that a person can bring a complaint of race discrimination if they are treated less favourably because of their association with a person of a particular race-for example, where a white person with black friends is not admitted to a club, and the reason that the white person is excluded is because he or she is with them. The reason is race, even though not his or her race.
That is the same type of situation as being associated with disability for the carer of a disabled child in the Coleman v Attridge Law case. In two other reported cases, Showboat Entertainment Centre v Owen and Weathersfield v Sargent, association with the ground of race was extended to apply to white employees who were dismissed when they refused their employer's instructions to discriminate on racial grounds. The courts were satisfied that the reason for the dismissal was race.
It has been understood for many years that the Race Relations Act also covers situations where a person was wrongly perceived to belong to a particular racial group and, based on that perception, was treated less favourably. For instance, the abusive reference "Paki", if intended to refer to people of Pakistani origin, is often used against any one of south Asian origin in the course of harassment or discrimination against "Pakis".
The new clause does not introduce anything in terms of the law; it would merely ensure that any person reading the Bill would know that those aspects of protection against discrimination were part of the law. The amendment is aimed at helping to facilitate the streamlining of the law and making it clearer and more accessible for everyone. I beg to move.
Baroness Turner of Camden: My Lords, I support the noble Lord, Lord Ouseley, and in so doing speak to my Amendment 21A, which is on a very similar basis. The idea of my amendment was to clarify what discrimination can involve. The amendment would make it clear that direct discrimination can include discrimination based on a perception of B's sexual orientation, religion or belief, whether that perception is right or wrong. It would be possible for a person believing that they had been disadvantaged because of
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The wording also covers association, which the noble Lord, Lord Ouseley, mentioned, and persons believed to have protected characteristics. For example, an employee might be treated less favourably because of the sexual orientation, religion or belief of his or her partner, or because his or her son was believed to be gay, or in the case of the mother of a disabled child.
As the noble Lord, Lord Ouseley, said, that is all in line with the equal treatment framework directive, and I hope therefore that the Government will be prepared to accept it. My wording is extremely simple, so I hope that it will attract support.
Baroness Warsi: I have three amendments in this group: Amendment 24, which adds protection for those who are perceived to have a disability under the direct discrimination provisions; Amendment 38, which adds protection for those who are perceived to have a disability under the indirect discrimination provisions; and Amendment 54, which adds protections for those who are perceived to have a disability under the harassment provision. Amendment 7 addresses more widely amendments that I have tabled to Clause 13 with regard to disability.
In her Second Reading speech, the Minister stated that the Government were proud to welcome the important change that widened the definition of direct discrimination and harassment. The result of this change would be that people who themselves did not possess a protected characteristic but were associated with someone who did would also be protected. This expanded definition, however, is only made obvious in the Explanatory Notes. I think that the noble Lord, Lord Ouseley, has said that he would like to take this expansion still further and ensure that there is an explicit statement in the Bill, in a prime location, that a reference to anyone with a protected characteristic includes an association with people with that characteristic, or even when it is mistakenly assumed that someone had the characteristic when they do not. This would therefore include any area of equality law where a protected characteristic was mentioned. Can the Minister tell us why the expanded definition to include associations and perceptions applies only to direct discrimination and harassment? Is there not a case that it should cover any form of safeguard designed to be given to a protected characteristic?
Furthermore, I look forward to hearing the Minister's response on why the definition itself has not been put clearly in the Bill. I think that we are all in favour of the broadened definition, and it is very much to be hoped that when the provision is enacted it will mean real help for those who previously may have suffered detriment and disadvantage with no hope of redress. Does the Minister accept that there is a worry that, if this is not clearly stated in the Bill, there is a risk that it will not bring the benefits that we all hope to see? There may well be a sensible explanation for this course of action, but I think that the Committee would very much appreciate hearing the Minister's thoughts on it.
In a similar vein, we have tabled our amendments as probing amendments to ask the Government for greater clarity. We welcome the fact that the Explanatory Notes to Clause 13 state that this definition is broad enough to cover cases where the less favourable treatment is because of the victim's association with someone who has that characteristic-for example, the person is disabled-or because the victim is wrongly thought to have that characteristic, such as a particular religious belief. This addresses an issue raised by Coleman v Attridge Law. The European Court of Justice ruled that the relevant directive applied to a mother who claimed protection under an EU directive, not because she herself was disabled but because she had a direct relationship with her child who was disabled. We have already discussed much of this on Second Reading, so I will not go into it in more detail now. However, the Government have expanded this judgment still further so that it includes carers who look after elderly people.
However, we have tabled these amendments to raise two issues. First, the DCC is looking for clarification from the Government about how they expect the provision to work in reality. The DCC is concerned about groups such as those who at some point in their life have suffered mental health problems-though perhaps only for a short period of, say, a few months-which are perhaps not considered to have had a long-term impact on their life. An employer may discover this and deny them employment because of it. If so, could they claim direct discrimination, as they have been perceived to be a disabled person, and would this come under the expanded definition brought in by the Coleman case?
Can the Minister say how she thinks the perceived disability provision will work? Furthermore, can she explain why it was not thought necessary to include this provision in the Bill? In Committee in another place, this was discussed and the Solicitor-General said that she understood,
We agree with that. The provision is welcomed all round, so it seems dangerous to hide it in the Explanatory Notes, which after all are not part of the Bill, are not endorsed by Parliament and cannot be relied on as an absolute description of the Bill. Without stating it directly in the Bill, there seems to be a danger that it might not be enacted or used, which would be a terrible shame.
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