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8.55 pm

Lord Hart of Chilton: My Lords, I am well able to spot mental fatigue when I see it and so I shall be extremely short and associate myself with the remarks of the noble Lords, Lord Norton of Louth and Lord Pannick.

I was a member of the Joint Committee on the Constitutional Renewal Bill and I am also a member of the Constitution Committee, so what I am going to say will not be surprising. In paragraph 7 of the Joint Committee's report, we drew attention to the fact that we were given just 10 sitting weeks for pre-legislative scrutiny instead of the recommended three to four months. We also noted that the risk of a constricted timetable may not have allowed us,

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That sounds rather ironic now: we reported on the Bill in July 2008 but it took the Government almost exactly one year to produce a response and publish the Bill. That is not the mark of a vigorous Government responding to a report, almost all of whose recommendations they have in fact adopted; it is characteristic of a comatose rabbit.

It is obvious that neither House will have been able to scrutinise the whole Bill as major constitutional reform should be scrutinised. I have said that I am content with many of the Bill's proposals. That is not surprising, because the provisions in the main-in half the Bill-follow the recommendations of the Joint Committee. However, almost half the Bill has not received pre-legislative review. Points made at Second Reading in this House do not constitute and cannot substitute for detailed scrutiny, which is the very essence and raison d'ĂȘtre of this House. Any suggestion that this, a constitutional Bill, should be left to wash-up is not right in principle or practice. For a Bill that deals with constitutional reform to be handled in this way shows, I am saddened to say, that this House is regarded as an irrelevance.

8.57 pm

Lord Turnbull: My Lords, this Bill falls way below its advance billing with which we were provided in July 2007. It fails to address the most important constitutional questions: funding of political parties, which I do not think has been mentioned today; strengthening the ability of the legislature to hold the Executive to account; the anomalies left by the devolution settlement; the composition and role of this House; and many more issues.

Picking up the Shakespearean theme started originally by the noble Lord, Lord McNally, I compare this to the witches' cauldron in Macbeth-lots of disparate things like,

"Eye of newt and toe of frog",

thrown into the pot, some of which will deserve to survive the wash-up, and some of which will not. However, this debate has served an important purpose: it has allowed those of us who will not be in the metaphorically smoke-filled rooms to mark the card of those who will be. I hope they will listen to the views we have expressed in deciding whether to allow something to go through or to perish.

Like the noble Lord, Lord Maclennan of Rogart, I support a referendum on our voting system, but like him I also question the timing. The public have not been taken through the process in which we get to AV. There are many systems; people need to be taken through them more, and this process has been skipped. In my view, it would be better if after the election someone is commissioned to analyse the results and produce some view of what might have happened under these different systems, then people would have a clearer idea of what these different systems offer.

I support the shortening of the 30-year rule. I suggested to the Dacre committee two years of release every year until the target time was hit. However, something has gone wrong with the drafting of Clauses 85 and 86 which even Andrew Phillips MHL has not spotted. There are in fact two 30-year rules: the time for transferring

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documents to the Public Record Office, and the time for which the FOI exemptions apply. In their response to Dacre, the Government said that the two processes should be "concurrent"-in paragraph 36. But the first moves to 20 years after a phased transition and the second moves to 20 years immediately. I think that it is a case of two different parts of Whitehall having got into muddle and needing to sort it out.

An important proposal, about which many noble Lords have spoken, is placing the Civil Service on a legislative basis. The Northcote-Trevelyan report recommended this 150 or so years ago, saying that it could be accomplished in a "few clauses". This is precisely what we have. I would describe what is proposed as minimalist. That description should be regarded as a compliment, as it is precisely what the approach should be. It leaves most of the status quo unchanged. The Civil Service remains a professional career service recruited on merit and through competition. It serves the Government of the day, but stands ready to serve with equal commitment the Government of the next day. It is managed by a Minister for the Civil Service-a role which in practice is delegated to the Permanent Secretaries-and not by either Parliament or, as some have suggested, a board of governors of the great and the good. The Civil Service Commissioners are independent, appointed by the Queen. The Civil Service Code is not enshrined in the statute, but the statute lays down certain fundamental principles which it must embody. It describes in a better way than has been done previously the role that special advisers are allowed to play, but it does not set a limit on their numbers. That is the right approach, because I absolutely guarantee that, whatever limit one has set, there will that many special advisers immediately afterwards, and it would become an obstacle to efforts to reduce their number.

Virtually all this is in the present understanding. If the Bill changes very little, what, some may ask, is the point? The point is that it entrenches the existing arrangements which have served this country well for 150 years. It does not, however, freeze the development of the Civil Service. If the Government want to make a change- for example, and I would not recommend it, to allow Ministers to appoint their own senior officials-they can do so, but only by bringing that proposal to Parliament and seeking approval.

It is often said that the Civil Service is being politicised. Could it mean that people are being appointed for their political views? There is no evidence of this; indeed, the Civil Service Commissioners are involved in more senior appointments than used to be the case. Does it mean that civil servants have become too pally, too partisan? They are occasionally, but usually such cases are addressed, as in the case of Damian McBride, who was basically thrown out of the Civil Service and told to become a "spad". The real issue is that some of the work of the Civil Service, particularly policy advice and communications, has been diverted down political channels; that is, Ministers and their special advisers.

We have an opportunity to reaffirm the long-standing relationships and safeguards around the Civil Service. Should we take it, even it is not perfect? The principle of legislation has been on the agenda for 150 years.

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Specific drafts of these clauses to put it into effect have been in the public domain and been discussed, particularly in the Public Administration Select Committee in another place, for more than a decade. So this is not of those Johnny-come-lately proposals.

There are issues to refine in the proposals, some of which my noble friend Lord Wilson listed. I would support such refinements if opportunity allowed. However, my advice is to capture and enact what is before us, even if much of the rest of the Bill is jettisoned, because I fear that it may be some time before we have another opportunity.

9.04 pm

Lord Rooker: My Lords, I have been here for the greater part of the debate; I intended no discourtesy whatsoever to the Front Bench or to your Lordships' House in not being able to arrive earlier today. There are also the unique circumstances of the fact that this is the only opportunity that we will get to speak on this Bill. I would like to take a few minutes to speak against Part 3 regarding the referendum on the voting system.

I speak as a former supporter of the first past the post system, who changed his mind in the late 1980s to supporting proportional systems. Like most people who make the journey from first past the post to PR, I stopped off briefly in supporting the alternative vote; it is seductive, but a sham.

I also speak as the former chair of the Labour Campaign for Electoral Reform for four years. At the time, we succeeded in getting the Labour Party to have an inquiry into voting systems, which was chaired by my noble friend Lord Plant, and later getting the party to promise the referendum on the matter, which has been referred to earlier today.

The 1997 manifesto was crystal clear:

"We are committed to a referendum on the voting system for the House of Commons. An independent commission on voting systems will be appointed early to recommend a proportional alternative to the first-past-the-post system".

We now get to 24 March 2010, with this Bill in the House. Part 3 was not even in the Bill when it was published. It was put in in February this year, months after the Bill was originally published. After years of inaction with the Cabinet, which is broadly speaking against reform of any kind, we get this phoney proposal. I am very sad. It is a proposal which, by common consent, is the least radical change one could make to the existing, unfair first past the post.

The Secretary of State, in his introduction, made it clear that the alternative vote is a majoritarian system. It is not supposed to deal with any of the existing difficulties of the present system, such as unfairness, wasted votes, representation of substantial minorities, regional imbalances, and rural and urban balances. The alternative vote is open to and encourages tactical voting; that is, voting for something you do not really want to stop something else. The second preference is a tactical vote. Under the Bill, in Clause 29, it is possible for the ultimate tactical abuse of the election procedure to take place. This involves-and I guarantee that this will happen in some parts of the country-candidates asking supporters not to use the second

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preference where there are several candidates, so that close opponents do not benefit from the preferences. Anybody who has been involved in any votes like this knows that, if you have a choice about using the preferences, that is what happens.

So what do we do when we come to Committee? Do we make using the preferences compulsory, as in Australia's system-for the first time, encourage compulsory voting? Many people have fundamental objections to that. This Bill builds in an abuse. How can voters make a real choice with the alternative vote when they do not know who will top the first preferences, yet are asked to list everyone all in one go as a choice?

We should have a system in which voters vote positively for what they want and believe in, as opposed to negative voting, which I think this Bill encourages. The Canadian experience of the alternative vote makes wonderful study for the cognoscenti, which we will all become. Alternative voting may result in one party winning all the seats; in another case, a party may win 99 out of 101 seats on a bare majority, less than 60 per cent of the vote. The alternative vote does not allow for effective representation.

The alternative vote-I say this in particular to the noble Lord, Lord Rennard, who made one of the speeches I disagreed with tonight-damages a third party whose vote is evenly spread. It will be the second preferences of that party which elect the others. Those third-party voters will not obtain any representation due to the alternative vote. Furthermore, it may not elect the person with the widest support. It is worth putting this sentence on the record: in the jargon of political theory, which my noble friend Lord Plant is much more versed in than I am, it may not elect the Condorcet winner. This is defined as the option in which a candidate who could beat all the other candidates in a straight fight should be the winner. Imagine four candidates in an election, three of them evenly divided with partisan support, but the supporters of each loathe the other two. The fourth candidate has few partisan supporters, but would be the alternative for all the others. The fact of the matter is that that candidate would go out on the first ballot and would never be able to go off against any of the other three.

Lord Campbell-Savours: Would my noble friend concede that on the supplementary vote that would not happen, which is why it was designed?

Lord Rooker: I did not want to get into this. The supplementary vote is more unfair than the alternative vote, as the London Assembly elections show anyway. I did not want to go down that route because I wanted to stick to talking about the alternative vote. That is what is in the Bill.

There are very unfair aspects to the alternative vote-it is a sham. It maintains the concepts of safe seats whereby voters are ignored by one party and taken for granted by the others. No real contest, where candidates offer choices to electors, takes place in those seats. We all know that the electoral battle is in the marginals under first past the post. The thing that makes me sad and a little angry is, frankly, the sheer arrogance of the Government, who are dragged to the promise of a referendum after 13 years and try at the same time to provide the answers to the present system.

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It is clear that there is no consensus among the politicians. If the promise originally made of a proportional alternative-a family of choices-cannot be kept, which is patently the case, the honest approach is to have a referendum as happened in New Zealand asking, first, if voters want to retain the present system or have a change and, secondly, if they vote for a change, to offer them a family of choices. Let the people decide. What is the problem with letting the people decide on the voting system for the House of Commons-by which time we will have had such reform that we will all have a chance to vote, I hope. Why should Ministers, most of whom do not want any change, make this decision? That is what is in the Bill and it is fundamentally wrong and unfair. It is also worse because, under the Bill, Ministers will write the question and set the date. What on earth did we set up the Electoral Commission for? It should have that power, not just to check the wording and the propaganda and look at how the money is spent. It should not be down to Ministers to write the question, which is then presented in secondary legislation to Parliament. Some of these people are my friends, but they are political leaders who in a lifetime have shown not the slightest interest in fair voting. Indeed, they have slagged many of us off who have converted or been there all the while-then they suddenly see the light. It is too late, too little; it is a phoney proposal and for the wrong reasons. It is treating the voters like fools, and I do not think that the public will buy it.

Nobody has raised this, but I would naturally expect that all the votes on this part of the Bill in this House will naturally be free votes. I assumed that they were so in the other place. If and when the chance arises-and I have been absolutely negative on this, because I wanted to concentrate on the alternative vote-I shall come forward with positive amendments so that a choice can be made. Those amendments would meet the criteria of the Hansard Society report of 1976, the Plant report of 1992 and the Jenkins commission in 1998.

9.13 pm

Lord Tyler: My Lords, as usual, I am delighted to follow the noble Lord, Lord Rooker. I think that he has made it possible for my speech to be slightly shorter, because he said some of the things that I might well have said. However, I would have found it difficult to do so with such vehemence, because he speaks not only as a member of the Labour Party but also as a former Minister.

This has been a fascinating and very wide-ranging debate, as we have had a good look for the first time at an extremely long-awaited Bill. The Prime Minister, as noble Lords will recall, took Parliament and the public on a roller-coaster of expectations from the moment when he entered Number 10. First he promised a substantial and steady diet of reforms, ranging from limiting the prerogative powers right through to changing the invidious double role of the Attorney-General, in 2007. Then we got a draft Bill that diluted many of those objectives, building in acres of ministerial wriggle room. Treaties were to be ratified by Parliament, except when they were not; war would be authorised by Parliament, except when it was not. The role of the Attorney-General would change, but not very much.

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Along with several other speakers, I sat on the Joint Committee which considered that draft Bill and we found it pretty disappointing. I agreed very much with the noble and learned Lord, Lord Falconer, who called it the constitutional retreat Bill. Taking up that title, I was delighted to see-because I participated in the exercise-the work done by Democratic Audit, which I recommend to Members of your Lordships' House, because there in an annexe is a complete analysis of all the promises at various stages from the Prime Minister and other Ministers, and what has actually happened in terms of delivery from the moment those proposals were made.

Now we have this Bill, the CRAG Bill. It is on the edge of the election precipice, weaker in many places, more radical in a few others, but in all respects-as has been reflected so often today-very, very late. The Government have spent so long fiddling over the timetable-commissioning reports and committees-that they have missed the train. Worse, they have consolidated public disillusion with Parliament, rather than responding to the crisis of confidence that has been referred to so often today-by the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady D'Souza, in particular, but also by my noble friend Lord McNally and the noble Lord, Lord Graham. There is a crisis of confidence in this House as well as in the other place and, sadly, the golden opportunity to change our politics is disappearing into the distance rather than coming any closer.

There have been references to the Bill being a Christmas tree and to the baubles that have been added to it. There have also been some boughs cut off, notably, of course, the role of the Attorney-General, referred to by other noble Lords. Another one is war powers: what should Parliament's role be when the country is on the brink of war? Reform of party funding has been referred to by the noble Lord, Lord Turnbull. This is extremely important if we are to get back confidence in the way in which our politics are run. Then there are fixed-term Parliaments: suddenly, out of the blue, the Prime Minister is apparently prepared to give up his opportunity to play party games with the timing of general elections.

I have listened to 38 contributions today and I cannot possibly deal with them all, but I shall make brief reference to my noble friend Lord Phillips of Sudbury, who we are delighted to see back here. We have missed him, because it is so evident from his contribution that he would have made a major contribution this evening to the interminable discussions we have had on some of these issues. For example, he was always a great protagonist for pre-legislative scrutiny. As has been referred to by many Members of your Lordships' House, we did give pre-legislative scrutiny-albeit, as has been accepted by the noble Lord, Lord Hart, it was inadequate for the timescale. We took evidence on, for example, the extremely important sections about the statutory role of the Civil Service.

The other theme which has been very strong today is the very detailed discussions that we have had on my noble friend Lord Steel's Bill at various stages. We went into great detail on that-I participated myself-so to suddenly pretend that it has appeared on the agenda

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this afternoon is naive in the extreme. We have had interminable discussions about taking a first step towards more comprehensive reform of your Lordships' House. It would be absurd to pretend that those sections of the Bill that pick up my noble friend's Bill have not had proper scrutiny.

Time and again, the dilemma that has come through our discussions today is that Members of your Lordships' House have said how outrageous it is that we suddenly have this Bill at this stage, there is not proper time to consider it and we doubt that there will be time to consider it in future-but, of course, there is one section of the Bill that they themselves think is absolutely vital to get on to the statute book in the next few days. The only problem is that it does not always seem to be the same section. That is the dilemma that the Government have thrown at us and it is their fault.

I was struck by the fact, for example, that the Constitution Select Committee conclusion-we have all paid tribute to the very good work that that committee does on our behalf, and the current report is part of that-says,

We have been at it for 150 years; we are not suddenly coming to this today. It was interesting that the noble Lord, Lord Armstrong of Ilminster, followed by the noble Lord, Lord Wilson of Dinton, and then the noble Lord, Lord Turnbull, have all pleaded with us to get on with that job. I find it extraordinary that the Constitution Select Committee should have picked up that particular part of the Bill as needing more scrutiny. We gave it a great deal of scrutiny in the Joint Committee on the draft Bill and, as has been so apparent in the important contributions from the distinguished selection of your Lordships' House on the Cross Benches, there are strong reasons for taking that part of the Bill forward to the statute book.

Fourteen years ago, the then leader of the Labour Party, Tony Blair, promised,

yet we are still worrying about whether this appointed Chamber should have a statutory commission. Ninety weeks after Gordon Brown promised to reinvigorate our democracy, we are now facing the prospect of reactionary Tories fighting in the last ditch to preserve the hereditary principle in this House. They want to stop the public from having a say about the way in which they-not we in this House, but the public outside-elect Members of the other place. The noble Lord, Lord Campbell-Savours, gave us a serious warning: it would look very odd if this unelected House started to put major obstacles in the way of how the public have a say in this matter.

The Government seem to have set a dinosaur trap, hoping that Tory Peers will seek to delay and destroy these reforms. They have deliberately left it to the fag-end of this Parliament to introduce the Bill so that they can go to the electorate in the coming weeks and say, "Look at what those unelected relics in the House of Lords have been doing, stopping us getting through sensible and popular changes".

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Lord Howarth of Newport: That objection did not seem to trouble the noble Lord's party very much a couple of evenings ago on the Norwich and Exeter orders.

Lord Tyler: I was going to come to that point but, since the noble Lord overstayed his welcome by so many minutes on that occasion, I do not intend to do so simply to respond to his intervention.

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