7 Feb 2011 : Column 1

House of Lords

Monday, 7 February 2011.

2.30 pm

Prayers-read by the Lord Bishop of Wakefield.

Introduction: Lord Stephen

2.37 pm

Nicol Ross Stephen, Esquire, having been created Baron Stephen, of Lower Deeside in the City of Aberdeen, was introduced and took the oath, supported by Lord Steel of Aikwood and Lord Wallace of Tankerness, and signed an undertaking to abide by the Code of Conduct.

Agriculture: Dairy Industry


2.43 pm

Asked by The Lord Bishop of Wakefield

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley): My Lords, there is no simple link between supermarket retail prices and farm-gate prices. Producers in dedicated supply groups for individual supermarkets tend to receive the highest prices for their milk. The Government believe that the market must drive price levels. It is important that large retailers cannot abuse power by transferring excessive risks or unexpected costs onto their suppliers. We therefore propose to establish a groceries code adjudicator to monitor and enforce the groceries supply code of practice.

The Lord Bishop of Wakefield: My Lords, I thank the noble Lord for his answer, but the situation has become even more serious. Last Friday, 4 February, the NFU published a report noting a £330 million gap between the price paid for milk and the cost of production. It is ironic that many demonstrations outside supermarket depots belong to a company that was once a co-operative of northern dairy farmers. In the light of that, will Her Majesty's Government urgently support the European Commission's dairy package to change the way milk contracts and supply chain contracts are negotiated?

Lord Henley: My Lords, I ought to make it clear that prices have in fact gone up somewhat. The average price in December was 26.4 pence per litre, which was a 5.8 per cent increase on a year ago. However, I appreciate that other prices for dairy producers have gone up just as fast and that they are facing quite severe problems. As regards the work being done in the EU, I think that the right reverend Prelate referred to the High Level Group on dairy. We will certainly be making appropriate comments on that and feeding in our views to what the Commission is proposing.

Lord Lea of Crondall: As I understand it, there are 17,000 dairy farms in this country and the average dairy farm gets a subsidy of £30,000 a year, which by my arithmetic is £500 million. There are 2 million cows, so each cow gets £250. I am sure the NFU will say that the cow does not get it and that the farmer does not get it. So who does get it? Could it be that the processors get it, the supermarkets get it, or the consumer gets it? Somebody must get it, so should there not be something like the Office for Budget Responsibility or the new adjudicator to clarify analytically who does get it?

Lord Henley: My Lords, I cannot confirm or deny the figures produced by the noble Lord, but I can give him an assurance that subsidies go to the farmers and not to the cows as I imagine that the cows do not have bank accounts.

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Baroness Parminter: Does the Minister agree that a 3,700-cow mega dairy in Lincolnshire will be as much of a nail in the coffin for the competitiveness of small British dairy farmers as the unopposed arm lock of the supermarkets over farmers with their milk prices?

Lord Henley: My Lords, I am not going to comment on individual applications by individual farmers or farming groups for their own planning consents, but the point that should be made in terms of our own interests in this is that the welfare of the animal must always be supreme. We believe that with proper stockmanship and so on, the welfare of animals can be maintained on big farms as well as on small farms.

Lord Sewel: Can the Minister clarify into which schedule of the Public Bodies Bill the groceries adjudicator, or whatever it is, will be placed?

Lord Henley: The noble Lord will be pleased to hear that the groceries code adjudicator will not be in that Bill, but in a separate Bill being introduced by colleagues in the Department for Business, Innovation and Skills. I look forward to the Bill coming before this House in due course.

The Countess of Mar: My Lords, the noble Lord hinted that farmers who act co-operatively succeed in getting better prices for their milk than those who act alone. As the British farmer has such a poor record of co-operating with his fellow farmers, what will Her Majesty's Government do to encourage farmers in order for them to get a better price for their milk?

Lord Henley: I am not sure that the noble Countess is in fact correct. The highest prices being paid for milk at the moment are coming from Wiseman Dairies with its direct contract for Tesco and the lowest current prices are from one of the farmers' co-operative groups. I do not know whether the two are connected, but certainly it is a matter for individual farmers to decide whether they want to act together, not one for Her Majesty's Government.

Lord Grantchester: We welcome and take encouragement from the fact that the Government are continuing with the previous Administration's Dairy Supply Chain Forum as a mechanism to keep in close contact with the industry. Does the Minister agree that the dairy market is not dysfunctional, that the industry's prospects are positive and that it is undertaking significant investment with a value added strategy? Price rises are feeding through what are now much better integrated relationships. Does he further agree that the problems facing dairy farmers are more the result of volatility in input costs rather than from supermarkets? I declare my interests in dairying.

Lord Henley: My Lords, I can agree with much of what the noble Lord has said. Obviously, individual dairy farmers are facing problems, and we saw a decline of 4.7 per cent in their number last year. But as the noble Lord said, prices are increasing somewhat at

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the moment, even though there is considerable volatility in the other prices dairy farmers have to face in terms of their milk production.

The Lord Bishop of Exeter: My Lords, I am delighted to know that the Government are still committed to bringing in a Bill to establish the office of the groceries code adjudicator. Given the seriousness of the situation that we face in dairying and other aspects of farming at present, when is that Bill likely to be brought before the House?

Lord Henley: My Lords, my understanding is that there is a good chance that it will start in another place first some time this Session, but I cannot give any precise timing at this stage.

The Earl of Sandwich: My Lords, the adjudicator was going to be situated in the Office of Fair Trading. Can the Minister confirm that the Office of Fair Trading is to be abolished? In which case, the adjudicator will have to be situated in the Competition Commission, which is also to be abolished.

Lord Henley: My Lords, I am not sure at the moment where the groceries code adjudicator will be sitting, but I can assure the noble Earl that he will sit somewhere where he can do the job that he will be asked to do as effectively as possible.

Lord Phillips of Sudbury: My Lords, will the Minister also look at the impact of predatory pricing on small, local convenience shops, which make a great contribution to their communities?

Lord Henley: My Lords, that is obviously a matter that ought to be looked at but I think everyone should welcome the fact that supermarkets deliver low prices not only for milk but for other matters as well. The consumer would welcome that.

International Development Aid


2.51 pm

Asked by Lord Sheikh

Baroness Verma: My Lords, focusing UK aid on fragile and conflict-affected states is central to our development efforts and makes a significant contribution to our national security. All UK bilateral and multilateral aid is currently being reviewed, ensuring a greater focus on results and maximising the impact of every pound spent.

Lord Sheikh: My Lords, I thank the Minister for that response. What discussions has her department had on improving the interface between different

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government departments to support fragile and conflict-afflicted states so that they do not become a future security risk? Can she also explain what the Government are doing to assist these states in the achievement of the millennium development goals?

Baroness Verma: My Lords, the Government's strategic defence and security review set out a clear vision of enhanced UK work on upstream conflict prevention. Building on this, DfID, alongside the FCO and MoD, is taking the lead in developing the Government's new Building Stability Overseas strategy to be published in the spring. This strategy will set out how we will use development, diplomatic and security tools in an integrated approach to tackling conflict and instability overseas. No fragile state has yet achieved a single millennium development goal.

Lord Tomlinson: My Lords, is the Minister aware that her statement about getting value for money for every pound spent from the development budget will be very welcome? Can she tell us which precise, ring-fenced developmental objectives were met by the transfer of £1.8 million from the DfID budget to finance the visit of his Holiness the Pope?

Baroness Verma: My Lords, the money was not taken out of ODA but was a part of DfID's budget. The work that the Pope and the Catholic Church do overseas is welcomed; they do a lot of work through educational and medical care across the world. It was therefore not ODA money but came out of the DfID budget.

Lord Roberts of Llandudno: My Lords, I am sure that the whole House welcomes the fact that all parties here are aiming for the target of 0.7 per cent by 2013. As we are all going in the same direction, does the Minister agree that there should be even more consultation, even at a ministerial level, on how our overseas aid is targeted and spent?

Baroness Verma: My Lords, my noble friend raises a very important point. We are carrying out the bilateral and multilateral reviews and having a great deal of consultation with a great many organisations precisely to ensure that all our aid is focused on getting the best results for the poorest people in the world.

Lord Hannay of Chiswick: My Lords, does the Minister agree that in failing or failed states, where often straightforward development projects are impossible to mount, it is entirely proper, as a precursor to resuming development, to provide money to help these states? Is that view shared by the Development Assistance Committee of the OECD?

Baroness Verma: My Lords, as the noble Lord is aware, our goals are common across the OECD and our multilateral partners, and our aim is to ensure that our investment-every penny that we spend-is directed towards ensuring the best outcomes. He is aware of that.

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Lord McConnell of Glenscorrodale: My Lords, one year ago this week the previous Government launched the Civilian Stabilisation Group, allowing 1,000 UK citizens to be deployed to fragile and conflict-affected states. The current Government have promised to expand the work of that group. Can the Minister confirm for us today that the budgets will be available for the new stabilisation response teams and that the UK will continue to press the United Nations to make its own ambitious proposals on the international response for civilian secondments in a way which will enhance and add value to the UK's own Civilian Stabilisation Group?

Baroness Verma: I should first like to pay tribute to the great work that the noble Lord did when he was a Member of another place. I should also like to congratulate him on the work that he is continuing to do to ensure that the relationship between Scotland and the African countries is maintained. The United Nations is of course one of our key partners; but, as I said, we are going through the multilateral and bilateral review process. This process will ensure that we are able to target and focus all our aid budget on the programmes and countries that need it the most and where the outcomes are best achieved.

Lord Naseby: Is my noble friend aware that DfID's practical help in demining in Sri Lanka has been enormously welcome and pretty successful? But as the refugees-more than 270,000 of them-have nearly all now returned home, the crying need is for infrastructure, particularly in the health field. Will she, with DfID, look at the possibility of building at least one hospital in the northern region of Sri Lanka?

Baroness Verma: My noble friend is absolutely right about the work that DfID has done to try to reduce the suffering caused by landmines and the explosive remnants of war. As I have said several times over, we are coming towards the end of our reviews. These really can give us a greater focus on where our aid will go. However, healthcare and education are key to supporting the work that we do.

Baroness Kinnock of Holyhead: My Lords, how will Her Majesty's Government respond to the request made only last week by the International Development Select Committee for a list of exactly which countries will qualify as fragile and conflict-affected states, which will therefore be eligible to receive increased funding?

Baroness Verma: My Lords, the noble Baroness raises an important point. She will also be aware that the reviews are coming to a conclusion. They will be able to lay out all the questions that the Select Committee raised as well as the ones that she has asked.

The Earl of Listowel: My Lords, can the Minister say what progress the Government are making towards improving the education of girls and young women in fragile states?

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Baroness Verma: The noble Earl is absolutely right about education for girls and women. Women and girls are at the heart of all the work we are doing, particularly in countries such as Afghanistan and Pakistan which will be our key priority. The Secretary of State has therefore said that 30 per cent of the aid budget will be focused on our fragile states.

Disabled People: Disability Living Allowance


2.58 pm

Asked by Baroness Gardner of Parkes

Baroness Gardner of Parkes: My Lords, I beg leave to ask the Question standing in my name, and I declare an interest as I have disabled family members.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, the proposed assessment for personal independence payment is not intended to disadvantage individuals but to ensure that the benefit is focused on those who are least able to live independent lives. We therefore think it right that it takes greater account of the successful use of aids and adaptations than DLA does. We know that this is a complex issue, and that is why we are consulting on this point.

Baroness Gardner of Parkes: My Lords, I thank the Minister for that reply and I am aware of the consultation. Under item 27 of the consultation, it would appear that those who have used their DLA to improve their lot might be disadvantaged. I would like him to agree with me that it is very important to encourage people to help themselves and remain useful members of society and that no perverse incentive should be brought into this process.

Lord Freud: It gives me pleasure to say that that is the exact purpose of this assessment. We want to make sure that the money that we do have is well directed to supporting people to have independent lives. It would clearly be perverse if people were supported to live an independent life and that support was then removed when they still needed it. I cannot envisage that that situation would develop.

Baroness Campbell of Surbiton:My Lords, will the Minister tell us how the Government expect to achieve the projected savings of £1 billion by 2015 when the highly regarded disability charity Disability Alliance

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estimates that 823,000 disabled people will lose vital DLA support in order for the Government to meet that target?

Lord Freud: My Lords, as the noble Baroness pointed out, the target is to reduce the spending on DLA by 20 per cent by 2014-15. But that is against a projection of a benefit that is, frankly, out of control. The actual figure in that year will basically come down to the level that it was in 2009-10, which is just below the £12 billion mark.

Baroness Hollis of Heigham: My Lords, the consultation paper proposes that the three rates of DLA should be so-called "simplified" into two rates, which presumably implies-as the noble Baroness, Lady Campbell, suggested-the scrapping of the lower rate of DLA care. Lower-rate DLA care goes to those with significant need of help or supervision. Does the Minister agree with the noble Baroness that if the Government go ahead with that, it will take almost £900 million-nearly £1 billion-out of the incomes of disabled people, some of whom are among the poorest in this country? Is that what he means by saying that we are all in it together?

Lord Freud: My Lords, I disagree entirely with that premise. The personal independence payment is a new assessment of people's needs and is designed to help people to live independent lives and to give them mobility. To that extent there can be no presumption about what is happening to existing rates. We will set these rates based on people's requirements to live independent lives.

Lord German: My Lords, it seems to me that the consultation paper can be read in one of two ways. Can the Minister tell us whether the purpose of the PIP is to extend the level of adaptations and aids that will be available to people-to facilitate greater access and ensure that everyone who needs the payment can get it?

Lord Freud: My Lords, I can respond to that question positively in the sense that times have moved on: adaptations and aids have moved on since the DLA was introduced, and we are looking at a different environment in which people can be helped to live pretty normal lives with those adaptations. It is important that we have an assessment process and a personal independence payment that reflect what is really happening to people's lives.

Baroness Wilkins:My Lords, does the Minister agree that the extra costs related to lack of mobility are far wider than just moving around-not least the need for extra heating, the extra wear and tear on clothes and the need to employ others to do decoration or repairs in the house and to look after the garden? How does this make the provision of aids relevant in the assessment of extra costs?

Lord Freud:My Lords, the noble Baroness is right that we need to have a pretty broad view on what mobility implies. One of the big differences between

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the personal independence payment and DLA is that the personal independence payment looks at the person's ability to plan and execute a journey, not just at their physical capacity. One of the big differences with the personal independence payment is that it puts a lot more emphasis on mental competences compared with physical ones, or it raises those competences in relative terms. Many of those adaptations are clearly for physical requirements; others, the ones to meet mental requirements, will be taken much more into account.

Lord Rix: My Lords, the noble Baroness, Lady Hollis, has already referred to the statement, "We're all in this together". In that statement, were the Government including the 80,000 people with disabilities living in residential care who are going to lose the mobility component of their DLA, or were the Government simply thinking that such a valuable aid to so many vulnerable people was a total waste of taxpayers' money?

Lord Freud: My Lords, we are taking a very close look at the mobility requirements of people in residential care. The existing arrangements are pretty patchy; the payments are used for different purposes in different places and are often pooled in a way that they are not designed for, in a very complex regulatory framework. We will be looking very closely, as part of the consultation exercise, at what the best form of support should be for people in residential care in this way.

Lord McKenzie of Luton: My Lords, following on from that question, has the Minister read the evidence in the report from 27 leading disability groups entitled, Don't Limit Mobility? The report points out that mobility needs tend to be factored into care packages only to meet specific needs in the community care assessment and not generally to meet individuals' personal mobility needs. Do the Government therefore accept that the proposal to withdraw the mobility component of DLA for those in residential care because of double funding is based on a false premise, is simply wrong and should be withdrawn?

Lord Freud: My Lords, I have indeed read with great interest that particular piece of research. We are talking to the lobby about it and are very interested in some of the data behind it. We are in the process now of collecting a lot of information about what is really happening. It is a very fragmented area in terms of regulatory support and practice, and when we have that information I will be very pleased to share it with the House.



3.07 pm

Asked By Baroness Cox

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The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, the Southern Sudan referendum is a momentous step towards the implementation of the comprehensive peace agreement. A formal announcement of results is expected later this afternoon. President Bashir has today issued a decree accepting the referendum result, which provisionally shows an overwhelming majority for secession. We welcome the continuing commitment of the Government of Sudan. We will support north and south as they work on the remaining comprehensive peace agreement issues. We continue to support efforts to establish a lasting peace for Darfur.

Baroness Cox: My Lords, I thank the noble Lord for that very warm and encouraging reply. Would he agree that it is appropriate today to send very best wishes to the peoples of Southern Sudan as they celebrate that overwhelming mandate for independence announced today and to congratulate all who worked very hard to make arrangements for the referendum in very challenging circumstances? Is the Minister aware that the people living in the Nuba mountains or southern Kordofan were offered only a consultation? When I was there last year they said that they were so worried for their future under Khartoum that they might have to resort to war to fight for their own freedom, which would clearly be very destabilising for Southern Sudan. What is being done to address the needs of the people of the Nuba mountains, and especially their concerns about religious freedom, humanitarian aid and their African culture?

Lord Howell of Guildford: Certainly we welcome all the congratulations coming from around the world on what is the birth of a new nation. The noble Baroness is absolutely right about that, and she is right to point to the outstanding issues that remain. Not all problems have been solved by this referendum, particularly in relation to the areas that have worries about their relationship with the north while they remain politically under northern control. I think that she mentioned-if she did not, she will forgive me-southern Kordofan and the Nuba mountain regions. There are also the Blue Nile regions and the region of Abyei. All those regions desire to have their rights respected-their property rights respected and their political impulses respected-and all of them have yet to see a way through the necessary consultations. Those consultations will be within the framework of the comprehensive agreement, and we will work very hard with the United Nations to ensure that all the rights needed are respected.

Baroness Kinnock of Holyhead: My Lords, will the Minister tell us exactly what part the UK is playing in the negotiations taking place to deal with Sudan's debts of $35 billion? Is it fair that south Sudan should inherit the debt which was incurred by the north of Sudan? Is the Minister aware of new figures which reveal that up to 90 per cent of the Sudanese debt owed to the UK is actually interest?

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Lord Howell of Guildford: These are matters that have not yet been settled. As I said just now, there are a number of practical issues that have to be worked out. I cannot give the noble Baroness the precise detail of where the financial discussions have got to, but obviously, in as far as we are affected in the way that she described, we shall have to work out the best and fairest arrangement between the two countries. We think that these things can be done, but we have certainly not got to the point of solution yet.

Lord Alton of Liverpool: My Lords, I welcome the historic announcement that has been delivered from the Dispatch Box today. However, will the Minister touch again on the situation in Abyei to which he referred a moment ago, and on the Foreign Secretary's recent statement reflecting on the violence between the Misseriya tribesmen and the Sudan People's Liberation Army and the massive influx of armaments and weapons into that area? Does he agree that a reduction in the armaments levels and the removal of the militias from those areas is perhaps a prerequisite for a lasting peace? Can he also tell us something about the architecture which will be put in place to bring about the right of self-determination of the people of Abyei, who have been excluded from the comprehensive peace agreement and from the referendum?

Lord Howell of Guildford: I cannot offer the noble Lord an immediate pattern of solution to the situation. As he knows well, and as your Lordships will know, there has been no referendum in that area. There has been a demand for the people of that area to have a say. There are some quite substantial implications in terms of oil resources in the area-about 10 per cent of the oil resources of Sudan as a whole. I can only repeat what I said earlier. We will work very closely with the UN to see that consultations within the framework of the CPA are pushed forward and that the wishes and rights of the people of this region, like those of the other regions I mentioned, are fully respected.

Lord Avebury: My Lords, will the Minister confirm that the Blue Nile consultations are going ahead very well but that in southern Kordofan they have not even started? Is there not a difficulty in holding a consultation in a state where the governor is wanted by the International Criminal Court?

Lord Howell of Guildford: Yes, there are such difficulties, and I do not think that they can be disguised. As I mentioned earlier, there are difficulties in south Kordofan, the Nuba mountains and the Blue Nile region, and we will have to work very hard to see those overcome. I am personally encouraged, as I hope that your Lordships and my noble friend will be, by the tone taken in Khartoum about the outcome of the referendum and by the very substantial willingness of all parties to reach agreement on the very difficult boundary and border issues which any partition-any secession-is bound to raise. These were certainly raised.

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Budget Responsibility and National Audit Bill [HL]

Bill Main Page
Copy of the Bill
Explanatory Notes

Third Reading

3.13 pm

Baroness Anelay of St Johns: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Budget Responsibility and National Audit Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

A privilege amendment was made.


Moved by Lord Sassoon

Lord Eatwell: My Lords, the passage of the Bill through your Lordships' House has been an excellent example of the importance of this House as a scrutinising and revising House. On behalf of these Benches, I thank the Treasury Bill team; Miss Jessica Levy from my office, who managed most of the relationship with the Bill team; and the Ministers, notably the noble Lord, Lord Sassoon, for the way in which they have approached the discussions and constructive negotiations on the content of the Bill.

The Office for Budget Responsibility established by the Bill is a peculiar institution. It is both outside government and of government. We need to ensure that legislation provides a framework for its independent operation as far as possible. That is what, working together, we have managed to do. We have clarified the role of non-executives, we have removed the statements in the Bill that seemed to qualify independence, we have enabled the OBR to consider issues of national risk, and we have enabled a process of external review of operations.

A number of factors remain. We on this side of the House are not entirely content with the budgetary provision for the OBR, or with the role of the charter as a qualifying agent that qualifies the OBR'S independence and instructs it.

The Countess of Mar: May I ask the Leader of the House whether it is normal to make a speech like this on the Question whether the Bill do now pass?

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): It is unusual, but it is in order. I think that the noble Lord, Lord Eatwell, is about to wrap up his remarks, but he was being constructive and helpful.

Lord Eatwell: I am indeed. It is appropriate to thank people, when a Bill has gone through in this co-operative manner, for what has been achieved.

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I know that the Government think that this side of the House has taken a somewhat belt-and-braces approach to the independence of the OBR; I am sure that Sir Humphrey, or perhaps Sir Nicholas, does. However, it can do no harm to the OBR's reputation to have a belt in place when the braces fail.

It is the Government's responsibility now to ensure that this important experiment in economic governance is a success. We on this side wish Mr Chote and his team well.

Lord Myners: My Lords, my words are very much in the same direction as my noble friend's. This has been a superb example of the House working well. We had long and detailed discussions in Committee. The Minister listened attentively and reserved his position, but came back with constructive amendments, and at all stages he kept fully informed everyone who is interested in the Bill by writing to us and keeping us up to date. It is a better Bill as a consequence of the House working effectively in the way that it did.

The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, I thank the noble Lords, Lord Eatwell and Lord Myners, for those remarks. I add my thanks to the Bill team, who did a cracking job, and to the Opposition for the constructive spirit in which we saw the Bill through.

Bill passed and sent to the Commons.

Parliamentary Voting System and Constituencies Bill

Order of Consideration Motion

3.17 pm

Moved by Lord McNally

Motion agreed.

Parliamentary Voting System and Constituencies Bill

Report (1st Day)

3.17 pm


Moved by Lord McNally

Lord Falconer of Thoroton: My Lords, as we begin Report on the Bill, we believe that it is important that the House is updated on our position on the Bill. We invite no prolonged discussion at this stage on the timing of Report.

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The Bill is acknowledged on all sides of the House to be a significant constitutional Bill that has not been the subject of what is regarded as the norm for such a Bill-either public consultation or pre-legislative scrutiny. Report has been brought forward without the 14-day gap that convention requires between Committee and Report. These conventions exist for a reason. That 14-day gap allows consideration and discussion in Committee and then the formulation of amendments for Report and preparation for their debate. There has been one sitting day between the end of Committee and Report. It is for your Lordships to judge whether the many issues raised by the Bill meant that it was never going to be possible to scrutinise it properly in the time sought to be allotted by the Government.

We think it right to register the point about the gap, but the mood of your Lordships' House has been to encourage the participants to resolve the problem by negotiation. The Opposition have supported and participated in this actively. They have been greatly assisted by the intervention of the Cross-Benchers. We have negotiated at all times in good faith. The Government indicated a basis for agreement on the main issues, to which the Cross-Benchers have responded, with our support, in accordance with the Government's suggestions. Cross-Benchers have discussed amendments with the Government in accordance with what they believed the Government were indicating, but no agreement has been reached.

Our system of self-regulation works only if the parties are willingly to negotiate honestly and skilfully and can reach agreement. However, we want to help the process and to do so we have agreed today that we will seek to complete Report on Part 1 of the Bill today. There is a way to go, but my sense is that your Lordships want to get on. It is a token of our good faith that we seek to complete Part 1 today. No one could suggest that that was not very reasonable progress. We want this House to consider these matters in a reasoned and reasonable way, and we very much hope that the Government will respond to this. We want this House to be able to consider and, as appropriate, vote on the key issues before us on Report to encourage resolution by agreement.

Baroness D'Souza: My Lords, last week an amendment on public inquiries was tabled from the Cross Benches as a possible means of arriving at a compromise agreement between the Government and the Opposition. The Government promised to come back with a modified amendment. Following this there was an agreement that Committee on the Bill should be completed, as it duly was, last week. We are now on Report and we have further amendments on public inquiries, thresholds and the percentage variation. Perhaps this is an appropriate time to reiterate the role of the Cross-Benchers by laying particular emphasis on their being politically unaligned.

The amendments before us-some usefully tabled by expert Members on the Cross Benches-are to do with content, not process. As the current Convenor, I do not and cannot speak for one party or another in this debate, although as individuals, me included, we will vote according to what each of us thinks are useful amendments and what is an appropriate way forward. I can say that Cross-Benchers as a group

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wholly support the main task of this House, which is scrutiny. It follows that anything that might interfere with that role, be it a programme timetable, filibustering or flouting of the conventions of this Chamber, would probably not be supported. Thus the normal convention at this stage is that Report should go ahead, that reasoned arguments be put, that Divisions take place and that the Bill goes to the House of Commons by 14 February. I say with some confidence that this would be the view of the majority of the Cross-Benchers.

As your Lordships know, a great deal of negotiation has taken place. However, what is now called for is that the essence of these negotiations comes to the Floor of the House and that opinions be canvassed by means of voting. Whatever the outcome of the Divisions, the Bill would go back to the other place for consideration. This is the way in which this place has, for perhaps hundreds of years, conducted its business. Many of us might feel that we should now return to these practices and that necessary compromises are made at the final stage of the Bill, which is Third Reading, next week.

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I thank both noble Lords who have spoken in a most constructive way. I agreed with the noble and learned Lord, Lord Falconer of Thoroton, when he said that this should not be the occasion for prolonged debate. I very much welcome the reiteration by the noble Baroness of her role as Convenor of the Cross-Benchers, the role of the Cross-Benchers themselves and her interest in the process of scrutiny. Individual Cross-Benchers can take different views on the content of the Bill as it progresses.

It is true that there are normal minimum intervals, which have been shrunk on this occasion. The reason for that is plain. For the Bill to become law it needs to return to the House of Commons at the end of play on Monday 14 February. That has been well known by Members of this House. However, the House has flexibility to reduce minimum intervals, and that is what we are dealing with. Indeed, some of the amendments that we will deal with today were last dealt with in Committee on 30 November. The House will feel, therefore, that we will have plenty of time to examine it. Time is not unlimited. That is an important consideration. I respect what the noble and learned Lord said about completing Part 1 today. That is right, sensible and achievable. I am sorry that he did not go on to say that he would be able to complete Part 2 this week, but I have to hold out the hope that we will be able to reach agreement so that Report can be completed this week in time for Third Reading on Monday. We will also continue to work with the usual channels, because it is also the will of the House that we should try to focus the key debates on this Bill at a time that is most convenient for noble Lords to make their voices heard in a Division.

Report received.

Clause 1 : Referendum on the alternative vote system

Amendment A1

Moved by Lord Rooker

A1: Clause 1, page 1, line 5, at end insert-

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"( ) If less than 40% of the electorate vote in the referendum, the result shall not be binding."

Lord Rooker: My Lords, it is best if I briefly state what this amendment does not do. It does not prevent the referendum taking place. It does not have a threshold that stops the proposed change in the Bill taking place. It simply allows the compulsory change in the Bill to be activated only if the turnout is 40 per cent plus. If it is less than 40 per cent, it still allows the change but requires the decision of a Minister to do so, which probably implies a debate in this House and the other place. In other words, if the turnout is 40 per cent plus, we get a binding compulsory change. If it is less than 40 per cent, it becomes discretionary. All my amendment does is to make the referendum effectively consultative if the turnout is less than 40 per cent. In fact, it takes in the debate that we had in Committee on an indicative referendum along with some of the debates on a compulsory threshold and compromises on both those issues-something that has been sadly lacking from this coalition-to try to put to the House an amendment that allows the Bill to operate in a more sensible way.

As I have said, I think that it would be controversial in some ways if the thresholds-on which there are amendments-were put in simply because people go back to what happened in 1979, which left a sour legacy. On the other hand, this is a major piece of UK constitutional legislation that affects every voter in the country. I am not clear that it is right to do this without more consensus than we have in the Bill. A high turnout and a small majority would be as bad as a low turnout with a large majority. Before we embark on this we should have an assessment of the result of the referendum. My compromise is that we can assess it only if the turnout is less than 40 per cent. If it is more than 40 per cent, there is no assessment and the result is binding. That is the way we have done it in the past. We have had a referendum, and then assessed the result before we make the changes. In this case there is a halfway measure-we do it only if the turnout is less than 40 per cent.

If the Government get their way-they want a high turnout on May 5-it is implied that probably the turnout will be higher. I do not prejudge that. If it is indicated by the people of this country that they are not actually four-square behind it, the amendment allows us, in certain circumstance, to have an assessment and to rethink the way forward.

The amendment is reasonable in the extreme-far more reasonable than anything I have heard so far. Twice in the past fortnight I have heard the Leader of the House mention at the Dispatch Box a package of concessions. There is no package of concessions on the Marshalled List as far as I can tell. Given what we said in Committee-we are not trying to repeat what we did but are taking part of two debates-I think that my amendment is frankly so reasonable that it should be passed on the nod. It would not wreck the Bill or the referendum and would allow a pause to assess whether the turnout is low. What is wrong with that? I beg to move.

3.30 pm

Lord Blackwell: My Lords, I have been a loyal supporter of the Government on this Bill but I confess that this is one amendment where I have sympathy

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with the proposer given the role that referendums may have in other constitutional issues and the precedent that may be set. I ask myself how comfortable I would be with a referendum on joining the euro if less than one in five of the population-that is, 20 per cent-voted for it; or, indeed, with a referendum on leaving the European Union if a similar result emerged. Therefore, the Minister needs to address how the precedent set by a referendum on this issue might affect precedents set on other grave constitutional issues that might also be the subject of referendums in the future.

Lord Anderson of Swansea: My Lords, my starting point is clear and I think has widespread acceptance throughout the House-namely, that what is proposed is a major constitutional change. I hope that the House is with me in saying that a constitutional change of this magnitude should have legitimacy, particularly as the hallowed rules of the game, which have stood the test of time over a long period, are being changed. Therefore, a means has to be devised to show that such a change has at least reasonable support among the electorate. The object is to make any such change as long-lasting as possible so that any future Government are not tempted to alter the rules of the game as they would recognise that there was a sufficiently broad consensus. Otherwise, there is a danger that the change will be deemed to be no more than the view of one Government which can be properly reversed by a successor Government. I warn the Government that if they steamroller ahead-already there have been great affronts to our normal conventions on this-a future Labour Government-such a Government will arise, although we do not know when-will be tempted to say that they are not persuaded that the change has sufficient support, and therefore that they are minded to change it.

Therefore, the key question for the Government is: do they seriously think that it is important that such a change has wide popular support? Putting it another, simpler way: do not most reasonable people in the House agree that it would be absurd if only 25 per cent of our electorate were to turn out and there were to be-if I have done my arithmetic correctly-13 per cent for and 12 per cent against? Would that be considered a sufficiently strong basis for a change of this nature to be agreed? I hope that most reasonable people agree that it would be absurd if such a change were to be agreed on such a flimsy basis. It would be contrary to the spirit of our constitution, the way that we work and, indeed, the way in which this House tries to ensure a reasonable response to proposals.

I fear that there could be quite a small turnout. Between now and the proposed date of the referendum we have but two months. However strong the efforts that are made by the umbrella organisations for and against the referendum and however strongly the Government try to whip up enthusiasm, I fear that there will be substantial apathy. There is widespread disillusion at government generally; and the Deputy Prime Minister, who has been most personally linked with this proposal, is not the most popular member of the Government. Whatever the merits of the case, people may find that a convenient way of showing their disapproval of the Deputy Prime Minister is by

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voting with their feet. This is perhaps part of the problem of a referendum; it very much depends on who is putting the proposal and the time at which it is put. We saw that, for example, in our own referendums. In 1979, an unpopular Labour Government put forward proposals for devolution in Scotland and Wales, which, certainly in Wales, were mightily rejected. Equally, in 1997, when the bliss was in that dawn, a new reforming Labour Government managed to get not a 4:1 rejection of the proposals, as in 1979, but a majority for them-just.

On a further point of sadness, it appears that the Government are probably not in a mood to make concessions. This rather wooden response of theirs may be part of the problems of coalition politics. I cite in evidence the debate on the Isle of Wight proposal. We understood, from the excellent speech of the noble Lord, Lord Fowler, that all parties on the isle were in favour of an exception being made. The noble Lord made an extraordinarily strong case for that. It was quite clear to all of us that whatever arguments we might seek to raise it was easy to see that the Isle of Wight would not provide a precedent for other areas of the country and was unique. That surely should have been an opportunity for the Government to say, "We are a listening Government; we have heard the arguments and we are minded to change our position". But no-the Government insisted on putting the proposal to a vote and were then roundly defeated. Worse, they then tried to claim some benefit, saying, "This is one of the great concessions that we have made", when clearly any listening or reasonable Government not bound by a coalition agreement would have made some concession on that point.

I turn speedily to the amendment on what happens if fewer than 40 per cent vote. This provides an escape route for the Government, and I return again to the Cunningham amendment in 1979, with which I had some experience, all those years ago. I make but two short propositions. First, in many countries, there is special provision when there are proposals for constitutional change. It is not enough to have a bare majority in one or both Houses of the legislature. Secondly, there is special provision in many countries where a referendum is held to ensure that more than a bare majority is required-hence the proposal for a threshold.

I could detain the House for a long time with the results of my research on this issue. My objective is not to detain, and to accept that practice varies from country to country. I shall give a few examples, if I may, of the two propositions. First, I cite Article 5 of the US constitution, which demands that before an amendment to the constitution can be made:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention",

and so on. There is also a precedent in Germany, which I shall not quote, under Article 79 on amendment of the basic law. There is also Section 128 of the Australian constitution.

Again, because of pressure of time, I shall neither cite these amendments to constitutional provisions nor detain the House by going through a litany of other countries. I concede that all the examples that

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I have given relate to federal constitutions, but it can plausibly be argued that in this country we are sleepwalking toward a quasi-federal system. Already, Scotland has primary legislative powers. With the Welsh referendum in March, we have the prospect of substantially increased powers. As a slightly humorous aside, after the unfortunate rugby match on Friday one companion said to me: "Well, we may have lost the game, but we shall win the referendum". That may be a small consolation for the result on Friday.

The object of thresholds for referendums has always been to show that there is an appropriate majority in the country for the proposal: otherwise, as I have said, it could be short lived. It would be a temptation for a future Labour Government to return to the issue if there was not a basis of sufficient consent. Clearly, there are different forms of special majority. I concede that a number of countries have a different view. For reasons of time, I will refer to, rather than quote from, the 1975 Nairn committee proposals. In this country we had a referendum in 1975 on the EU without a threshold clause, but which produced a 2:1 majority on a very significant turnout. We had the threshold commitment in 1979: I believe that Hansard will show that the Leader of the House conceded to me that this was an opportunistic response on behalf of the then Conservative Government, which fully supported the Cunningham amendment of 1979 on a 40 per cent turnout. Perhaps consistency is not something that one should hang around the neck of any politician. However, there was a threshold for the proposal for a regional assembly in the north-east and for other matters such as tenants' choice and the education Bill.

Overseas examples are legion. Again, I will not go through the various constitutional proposals of Denmark, Ireland, Italy and Switzerland. The Government claim to be particularly close to Sweden at the moment. Sweden has strong constitutional provisions, which I will not quote, which related to proposed changes. So does Australia. The Government loudly say that they are very committed to the Commonwealth. Not only Australia but many other Commonwealth countries have appropriate provisions for constitutional change.

I end by saying that the principle is very clear. We want to avoid the absurdity of a low turnout and a lack of public interest determining a key change to our constitution. We must recognise the special nature of such a vote if we wish the result to last. If the rules of the game are to be changed, we must ensure that there is an adequate majority and an adequate consensus in our country as a whole.

3.45 pm

Lord Howarth of Newport: My Lords, this is one of the most important issues before us on Report on Part 1 of the Bill. The amendment tabled by my noble friend Lord Rooker is eminently sensible. Surely we should all be able to agree that, where major constitutional change is concerned, there should be a search for consensus. Major constitutional change should not be made on a small participation in the vote.

I fear that turnout at the referendum will be low, partly because the question of whether we should switch from first past the post to the alternative vote

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system of elections is fairly obscure and technical, and partly-this is a very important factor-because this legislation, proposing as it does such important changes to our constitution, has not, as convention and normal practice require, been the subject of public consultation by way of a Green Paper or pre-legislative scrutiny. That means that there has not been an extensive debate, other than in your Lordships' House, where the extent of the debate has been well justified in these extraordinary circumstances. In the time that will be available between this Bill reaching the statute book and the day that the Government have appointed for the referendum, 5 May, there will be very little possibility of the Electoral Commission explaining to, informing and, indeed, educating the people of this country about the choice that it will fall to them to make. Those are significant reasons why we should insist that there should be a substantial turnout if the result of this referendum is to be binding, and I think that a minimum turnout of 40 per cent, as proposed by my noble friend Lord Rooker, is well judged.

I think that there should always be a high hurdle in a referendum. It would be intensely undesirable if Governments got it into their heads that referendums were a readily available, convenient way of introducing a change that they happened to think was desirable. I very much heed the advice of the Constitution Select Committee of your Lordships' House. In its report on referendums, it has made it very clear that it considers referendums to be in principle undesirable and inconsistent with the principle of parliamentary government. Although the committee concedes that referendums may be appropriate on significant constitutional issues, I am sure that the tenor of its recommendations is that we should not automatically reach for referendums as a convenient device for the Government of the day; rather, it should be rare and difficult for a proposition to be put to a referendum.

I take the view that, where there is to be a referendum, it should be advisory rather than mandatory. Again, my noble friend Lord Rooker has proposed to the House a very sensible compromise: if there is a majority on a genuinely substantial turnout, we accept that this referendum will be mandatory but, if the turnout is less than 40 per cent, the question of where we go from there will come back to Ministers and to Parliament. That all seems very sensible. Surely, when we are developing constitutional change, we should do all we can not only to achieve consensus between the parties in Parliament but to achieve a substantial consensus in the country. Therefore, I support the amendment.

Lord Alderdice: My Lords, I think it is only right for me to pay tribute to the noble Lord, Lord Rooker, who was regarded with much affection during his time as a Minister in Northern Ireland. However, that also leads me to my questions about his amendment. He was famed for his plain speaking and uncluttered thinking, but sometimes the simple response to a complex issue may not be the right one, and I think that that is the case with this amendment.

Two of the amendment's components trouble me. The first is the notion that it should be a non-binding referendum; in other words, we say, "This is so important that we must hear what the people have to say. But if

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we do not like what they have to say because of the numbers who turn out to vote, the Government will then do something different from what the people have said". I do not think that it is a very advisable to ask the people what they think but then for the Government to decide whether they will follow through on that. However, it goes further than that. The noble Lord, Lord Rooker, will be very familiar with the fact that the only elections in Northern Ireland which are not held on a proportionate basis of some kind-in fact, all the rest are held on the STV system-is the election to the House of Commons at Westminster. I could very easily see a situation where the turnout in Northern Ireland was much higher than in other parts of the United Kingdom-that is not unusual-and where there was overwhelming support for moving away from the first past the post system, as it is not used for any other elections and no one in Northern Ireland seriously proposes going back to it.

Of course they would rather have STV but that is not on the agenda at the moment. Northern Ireland could vote overwhelmingly for a move away from first past the post and the Government could say that the rest of the UK have not voted in such numbers-although the outcome is still clear-and have the freedom to ignore the situation or to espouse it. If this is what the people want, maybe we should move away from the first-past-the-post system in Northern Ireland-and perhaps in other parts of the UK-and argument could then begin to emerge that the Government had the freedom to bring forward different electoral systems for the one Parliament. That would not be a change because it is already the situation in our elections to the European Parliament. It would not help to bind things together in the United Kingdom if we had different forms of elections to the House of Commons.

I am seeking to show that what appears a simple, straightforward, elegant way of addressing a potential problem in fact opens up a series of other matters which have not been referred to in today's debate. I give way to the noble Lord, Lord Reid, who is also a much distinguished servant of Northern Ireland.

Lord Reid of Cardowan: I thank the noble Lord for that. His argument would carry immense weight if not for the simple fact that the circumstances-historically, socially and constitutionally-in Northern Ireland are unique in the United Kingdom. Nowhere else has a referendum been held inside and outside the United Kingdom at the same time, as was the case with the Good Friday agreement; nowhere else is there a Chamber where automatically all of the parties must share a percentage; nowhere else are there constitutional arrangements which stand completely at odds with every other part of the United Kingdom, for very good reasons. Therefore, the arguments the noble Lord has made very eloquently fall on the simple point that Northern Ireland is already unique, and anything that added to that uniqueness would be marginal compared to the differences that already exist.

Lord Alderdice: I am grateful to the noble Lord for his intervention. However, I am sure he will not go back to Scotland to argue that Scotland is not unique in its history, culture and background.

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The point is not the uniqueness of the situation in Northern Ireland but the importance of holding together a single system for election to the House of Commons so that various procedures do not enter into it which have the untoward effect of differentiating representation in the House of Commons. We need something which binds our United Kingdom together. That is why the simple and, on the face of it, not unreasonable proposition from the noble Lord opens up all kinds of other boxes. That is not his intention but it is a real possibility, and that is why I oppose the amendment.

Lord Hodgson of Astley Abbotts: Like my noble friend Lord Blackwell, I have been a loyal supporter of the Government throughout this Bill. However, like him, the amendment gives me cause for concern and I feel there is a lot in what the noble Lord, Lord Rooker, has said. I share my noble friend's views about the danger of a precedent being created in this way without any threshold.

The noble Lord, Lord Alderdice, argued persuasively that we may not like what the people have said. However, as I understand it, under the amendment of the noble Lord, Lord Rooker, 60 per cent of the people will have said nothing. They will not have said that they are in favour of it; they will just have stayed away. That is hardly an argument for there being the high-level consensus for the change that it is proposed to bring in.

Even with the noble Lord's amendment, we could have a binding referendum with one in five people voting in favour of it, which seems a perfectly satisfactory threshold. My concern is more about different results from different parts of the United Kingdom, to which he refers. We may have different turnouts in different parts of the United Kingdom because of the nature of the elections that are taking place on the day. We may have low turnouts in one place and high turnouts in another, and large parts of the United Kingdom may feel that they have had a system foisted upon them in circumstances where they have voted against it and there is not the level of consensus required.

For me, the danger of having no minimum to which we can point as giving a level of participation across the country represents a grave danger to the unity of the kingdom, because all parts of the kingdom may not feel that they have been treated fairly.

Lord Elystan-Morgan: My Lords, I have, for my sins, tabled Amendments 11 and 15 in relation to a 40 per cent threshold, but I have considerable doubt whether those amendments are in any way superior to this one. The effect of my amendments, if I may so call them, would be completely to nullify the effect of the referendum. It would be as if it had never happened if it was carried by a yes vote but the turnout was under 40 per cent. That would be the end of it, it would be totally expunged.

The effect of the amendment proposed by the noble Lord, Lord Rooker, is very different. It states that the referendum stays. The referendum has no mandatory effect, but it has a consultative effect to which, obviously, the Government of the day would be under considerable moral and legal obligation to pay the highest heed. That is the difference between them.

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The beauty of the amendment of the noble Lord, Lord Rooker, is that it gives great flexibility. It enables the Government to take into consideration all the matters which are relevant to its ultimate determination, including the level of turnout. For example, if the turnout was 39 per cent, it seems to me that it would be entirely proper for a Minister to say, "In the circumstances, we see no reason why we should not accept this as, effectively, the will of the people". On the other hand, if the turnout was 29 per cent, that might be very different. If there were special circumstances in relation to polling day, they, too, would be relevant factors to be taken into account.

The beauty of Amendments 11 and 15, however, is that they give certainty. There would be no question of any dubiety about whether the Government of the day were acting properly and fairly or were in any way tinged by partisan considerations. It would be absolutely certain. It is said that Sir Walter Raleigh, contemplating the axe that would put an end to his life, said, "It is a sharp but certain remedy". That is what my amendments would be: a sharp and certain remedy, possessing the merit of certitude but lacking any flexibility.

Three questions should be asked about the issue which are relevant to my amendments, and I shall not repeat them if I speak on those amendments. First, how serious would it be if only a derisory turnout supported a yes vote? Secondly, is a 40 per cent turnout threshold the right way to go about it? Is it fair and just? Thirdly, would any alternative in all circumstances be worse?

I start with a proposition which I suppose that everyone in this House will accept: this situation is unique. We have never been this way before. Only one all-UK referendum has been held, in 1975 on the question of whether Britain should depart from the European Union. That was not a mandatory referendum; it was a consultative referendum. I have read the Act again. There is nothing in the Act that says in any way that it is authoritative, so it could only have been consultative. I am sure that that is the correct constitutional judgment in the circumstances.

Therefore, we have the unique situation of an all-UK referendum that is mandatory. How serious would it be if there was a derisory turnout? I believe that that would eat like acid into the very roots of our parliamentary and constitutional system. I do not believe that one can exaggerate what would be the case. There is cynicism abroad already about this House and the other place. That cynicism would be multiplied many times if it were felt that changes had been made that turned only perhaps on a percentage of 10, 15 or 20 per cent.

4 pm

It can be said that Governments are elected on very small majorities and with very small turnouts. That is certainly the case: I think in 2005 it was under 22 per cent, as has already been said. Governments come and go: massive features of the constitutional landscape remain. That is what we are dealing with.

The next question is whether this is the way to deal with this matter. Yes, I believe that it is. One could certainly consider the alternative of a majority provision, where a majority has to be x per cent. Many will

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remember the Cunningham amendment of 1979 which operated in Scotland and in Wales. The very eminent constitutionalist Professor Bogdanor laid the situation bare in the following way. With an 80 per cent turnout, you could achieve that 40 per cent majority with half of that vote plus one vote. With a 70 per cent turnout, you could achieve the 40 per cent majority with 57 per cent of those electors voting yes, which is a high percentage. However, with only a 60 per cent turnout, which would be very substantial-I think that was the turnout in Scotland in 1979-you would need 67 per cent of those electors to vote yes; a level so high as to be virtually impossible.

The idea of a threshold condition, therefore, is entirely proper. I am in grave doubts as to whether my amendment has merit over that of the noble Lord, Lord Rooker, or whether the amendment of the noble Lord, Lord Rooker, has merit over mine. But if the House is of the opinion that this is the way to do it, I would completely accept that.

As regards the 40 per cent, that is about right. With regards to Sir Patrick Nairne, I think there were two sittings-the 1997 and 2006 sittings-when turnout thresholds of 50, 60 and 70 per cent were discussed. Bearing in mind that in no general election since time immemorial-as far as I know-has less than 50 per cent of the electorate voted, and that in the previous referenda referred to the turnout was always 50 to 60 per cent, 40 per cent seems to me to be right and proper.

I do not accept the canard that by having a threshold an abstention amounts to a no vote. That is utterly misplaced and misconceived. There is no evidence one way or another. It is as likely as not that, were there a threshold, persons who are mildly disposed in favour will be brought out to vote. But if one places oneself in the mind of an ordinary elector who had doubts about the matter in hand, one can ask whether he going to vote or to abstain. If he votes, there is a stone cast deliberately and positively against the proposition. That stone will be part of a pile that he hopes will be sufficient to defeat it. If he does not vote, there is uncertainty as he does not know whether the threshold will be reached.

Lord Tyler: My Lords, does the noble Lord accept that in those circumstances an abstention counts as a no vote and so discourages participation in the whole exercise?

Lord Elystan-Morgan: I readily accept that an abstention can count as a no vote. Whether it would in most cases, with great respect to the noble Lord, I do not think anybody can say. I am quite certain that it is wrong to assume that an abstention is always equivalent to a no vote. That is my proposition. I do not think that I have anything useful to add to the matter, save to say that what is at issue is the credibility of the parliamentary system-credibility that would be greatly damaged if some provision of this nature were not resorted to.

Lord Falconer of Thoroton: My Lords, this is an important amendment, which goes to the legitimacy of any change to the voting system. First, I do not

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believe that the stages in the argument are substantially in dispute. The referendum deals with an important constitutional issue and I have not heard anyone say that we should not have a referendum. There are people who object to referendums but, by and large, if our country is having referendums, this is an issue to have one on because it changes the voting system.

Secondly, this is an unusual Bill in so far as a referendum is concerned because it provides for a compulsory referendum, not an advisory one. By that I mean that if the vote is passed, the consequence is not that Parliament would then produce another Act of Parliament, as it did with the Scotland Act and the Wales Act, but that there is automaticity in that the Minister is required to bring forward an order that would automatically, in the light of the vote, give effect to the change in the voting system.

Thirdly, the effect of the provisions is that if, for example, there was a turnout of 25 per cent in the referendum, which no one regards as an outlandish percentage, you could end up with what is regarded by all as a major constitutional change being produced by 12.5 per cent of the country supporting it.

Fourthly, the reason why a referendum is required is that in constitutional change of this importance-and no one disputes its importance-it should be harder rather than easier than normal to effect such a change.

Fifthly, this is a change that has the support of the Liberal Democrats, while the Labour Party is divided on it and the Conservatives are against it. The effect is that it is almost certain that unlike with, for example, the Scotland Bill, the Wales Bill and the European common market in the early 1970s, Parliament would vote in favour of these changes. That means that, if there is no threshold, you have a situation where, far from it being harder to bring about this constitutional change, it may well be easier than it would have been with a normal Act of Parliament.

The noble Lord, Lord Elystan-Morgan, said that if you ended up in a situation where the referendum was passed by 12.5 per cent of the electorate, which would be the position, the legitimacy of the change would be considerably in doubt. I agree with that. It would-I quote the noble Lord-"eat like acid" at its legitimacy and put our voting system in play for whoever next forms the Government. There needs to be some protection to ensure that a major constitutional change such as this is not easier to make than through a normal Act of Parliament.

I am aware of the history of this matter, which is coloured by the threshold that was inserted in the 1978 Bill in the House of Commons. At the Committee stage, there was an interesting debate on that, during which George Cunningham, then the Member of Parliament for Islington South and Finsbury, in a very powerful speech persuaded Parliament that it would be wrong to make such a major change without there being a threshold.

Lord Tyler: Will the noble and learned Lord explain one point to me? His colleague in the other place, Mr Christopher Bryant, made a powerful speech against any threshold in this Bill, on which the Commons voted by 549 to 31. Why does the noble and learned Lord differ from his colleagues in the other place?

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Lord Falconer of Thoroton: I do so for two reasons. First, if one reads Mr Bryant's speech, one sees that he made it clear that this was a matter for the Lords to form a view on. Secondly, the amendment moved by my noble friend Lord Rooker does not provide that the proposal would automatically fail, which was what was voted on in the Commons. My noble friend has come up with what seems a sensible conclusion to make the referendum an advisory one, which, as noble Lords have heard from the quotes from the Constitution Committee, is the norm in our country. My noble friend has found a way through in relation to that.

This is important. We were unsure what our position should be precisely on the point made by the noble Lord, Lord Tyler. We had a different position in relation to a drop-dead referendum, where, if you did not get a 40 per cent turnout, that would be the end of it. Instead, my noble friend has found a way through that.

I have listened with interest and respect to what was said by the noble Lord, Lord Alderdice, about the Northern Ireland position and to what my noble friend Lord Reid said. My view is that we are dealing with a voting system for the whole of the United Kingdom. Once one accepts the proposition that there needs to be something special in order to justify this change, there has to be support throughout the whole of the United Kingdom, which obviously includes Northern Ireland. Although I listened with respect, I do not think that the reason given means that the simple solution that my noble friend Lord Rooker has produced is inadequate.

The noble Lord, Lord Hodgson, said that there would be a differential turnout in relation to this referendum because there will be local, Scottish Parliament or Welsh Assembly elections in some parts of the country but not in others. If you have a UK-wide threshold for turnout, that assists in making sure that the differential turnout does not affect the result.

The Opposition support the noble Lord, Lord Rooker. We believe that what he has said will promote acceptance of AV, if that is the change, which is good for the country. If there is a majority among those who vote, but the 40 per cent threshold is not reached, it will then be open to Parliament to conclude that that is sufficient, but the matter would have to come back to Parliament. There would have to be a piece of primary legislation; it would not depend just on a statutory instrument. My noble friend's proposal does not rule out-

Lord Rennard: Is the noble and learned Lord suggesting that it would be open to Parliament in that event to reject the result of the referendum if, say, on the mathematics that I have just worked out, 13.5 million people voted yes in the referendum-a greater number than have voted for any Government in recent general elections-and 4 million people voted against? If so, the will of 13.5 million people voting yes would not count, while the will of 4 million people voting no would. Ultimately, he says that the matter would go back again to Members in the other place to decide what the voting system should be for voters, rather than leaving it for the voters themselves to decide what system they have for choosing their elected representatives.

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Lord Falconer of Thoroton: The position would be exactly the same as it was in relation to the Scotland Act, where a massive majority voted yes in favour of Scottish devolution. It was open to Parliament to say no to all those people in the Act that followed, but of course Parliament said yes. Unless you take the view that one completely discounts Parliament altogether, it is unlikely that such a conclusion would be reached, but suppose that the position were that 5 million voted yes and 4.5 million voted no. Let Parliament decide what should then happen. That is the effect of the amendment moved by the noble Lord, Lord Rooker. With respect, that is a very sensible conclusion and one that is entirely in line with our parliamentary democracy. We on this side of the House will vote in favour of the Rooker amendment and I hope that other noble Lords will do so as well.

4.15 pm

The Advocate-General for Scotland (Lord Wallace of Tankerness): I thank the noble Lord, Lord Rooker, for tabling his amendment and for allowing the House to have an opportunity to debate what I think has been recognised as an important issue. It was debated in Committee and we now have an opportunity to further debate it and other amendments.

The noble and learned Lord, Lord Falconer, indicated, as have many other contributors, that this is a serious constitutional issue. Its seriousness is marked by the fact that there is going to be a referendum at all. The noble Lord, Lord Anderson of Swansea, made reference to this House's Constitution Committee, whose report saw referendums as being used only for matters of the highest constitutional importance. It is fair to say that, with the exception of the proposal for a referendum on AV, the constitutional measures in the so-called CRAG Bill that we dealt with briefly before Dissolution last year were not deemed sufficiently important to trigger a referendum. The Government recognise the importance of this issue-hence the referendum.

The amendment moved by the noble Lord, Lord Rooker, would provide that, unless 40 per cent of the electorate voted in the referendum, the vote would not be binding. It would appear, therefore, that the intention is to make the referendum indicative should the turnout condition not be met. I am somewhat unclear what the consequence would be if the 40 per cent was not reached. I wonder, perhaps, whether the provisions in Clause 8 that mandate the Minister to make the order implementing the AV provision if there are more yes votes than no votes would remain unchanged if this amendment were taken alone. It is unclear what the ultimate effect would be. There is Amendment 10B, however.

Lord Rooker: Amendment 10B should have been linked to this.

Lord Wallace of Tankerness: That is helpful. Originally it was linked and it seems to have been delinked. The amendment would change the obligation to implement the result of the AV referendum into a power to do so.

I thought that the noble and learned Lord, Lord Falconer of Thoroton, was suggesting that there had to be primary legislation, although I am not sure

7 Feb 2011 : Column 28

whether I heard him correctly. Amendment 10B deals with that, although I should say something about the difficulties there, because there is still a lack of clarity. In addressing these amendments, I never like to lean too heavily on the technical matters, but there are important technical issues here of which the House should be aware.

The new discretion in Amendment 10B, if it were to be carried, seems to apply whatever the circumstances and not just where the referendum is made non-binding by Amendment A1 because turnout is less than 40 per cent. We might, therefore, find ourselves in an odd situation if the turnout exceeded 40 per cent with the majority in favour of AV. One part of the Bill would suggest that the result was binding, but another would suggest that there was no obligation, because there would be a power rather than an obligation to bring forward the order. I am also unclear as to the effect of the amendment in the event that less than 40 per cent of the electorate voted in the poll and the result was against a change in the system. I strongly suspect that this is not the intention but, as it stands now, the provisions mandating the Minister to repeal the relevant clauses would still stand but the result itself would not be binding. I am sure that the noble Lord will have an opportunity to clarify that. There is a difficulty there at the moment.

In addition, the amendment offers no indication of what kind of process might be followed where less than 40 per cent of the electorate voted. Even if Amendment 10B were carried, there would be a heavy responsibility on the Minister and then on Parliament if there had been a yes vote. The Boundary Commission review would be complete but he or she may or may not bring the provisions into force. As we are all aware, the boundary review will not be completed until 2013 at the earliest. Is it really the case that we want to replace the current provisions in the Bill, which provide both clarity and certainty, with provisions that could leave us with no clear resolution for the two years following on from the referendum? I am not saying that that would be the case, but that is the possibility that we open ourselves up to with these amendments. I cannot believe that that lack of clarity would be healthy.

I assume that that is not the intention of the noble Lords who are making these proposals. Perhaps they envisage that the gap in their amendments would be filled by what the noble Lord, Lord Wills-I am not sure whether he is in his place-proposes in his Amendment 10C, which is that there would be a debate in Parliament. His proposal would introduce a statutory requirement for a debate in both Houses within 14 days of the referendum result, although as it stands it would not make the referendum indicative and so would have little practical effect.

Even if the amendments tabled by the noble Lord, Lord Rooker, provided for this or some other process, I would still find it necessary to oppose them. The Bill provides that the referendum result will be decided by a simple majority. We believe that that is right, because it is the simplest, clearest and fairest way of proceeding. When people make the effort to go to the polls on 5 May, they should know that, if they vote for the

7 Feb 2011 : Column 29

alternative vote, that is what they will get. To impose a threshold or to make a referendum indicative would be to offer some sort of consolation prize-people might get it at the very end.

Reference has been made in this debate and in the debates that we had in Committee to the 1978 situation, where, because of George Cunningham's eloquence and, perhaps, the Opposition seeing an opportunity, a 40 per cent threshold was introduced. The noble Lord, Lord Rooker, said that there was a bitter taste. As one who campaigned in that referendum, I know that that bitter taste lingered for a very long time. To go out and campaign in a referendum and get a majority for the yes vote and then to be told that the majority did not count and did not matter was bitter. In terms of the cynicism of voters, which was referred to by the noble Lord, Lord Elystan-Morgan, there would be a real danger of cynicism if people went out and voted and there was a clear yes vote and somehow or other that yes vote had to be held in suspension or might not be translated into action.

Lord Lamont of Lerwick: If that argument is correct, why does it not also apply to general elections and constituency votes, which some noble Lords wish to alter?

Lord Falconer of Thoroton: Is it not also right that it was an automatic no when the level was not reached in 1978, which is not what my noble friend Lord Rooker is proposing here?

Lord Wallace of Tankerness: There is a difference because the 40 per cent related to something different. I am not entirely sure that I follow what my noble friend Lord Lamont said, because in general elections there is no threshold for what the turnout should be to make those elections valid and no one has ever suggested putting a turnout-

Lord Lamont of Lerwick: The noble Lord is in favour of moving to an electoral system in which a simple majority is not enough. At the same time, he is saying that this referendum ought to be determined by a simple majority.

Lord Wallace of Tankerness: There are different types of voting system and there will be later amendments with regard to them. This is a referendum with a straight yes or no. If in a general election there were two candidates, it would be a simple, straight case of whether you were or were not elected. The difficulty arises under our electoral system where there are more than two candidates. That is why there is a difference between a straight yes or no in a referendum, where by definition one side is going to get more than 50 per cent of the votes cast and one side is going to get less than 50 per cent.

I am aware that concerns have been raised here and elsewhere about the turnout. It is clear that we all want to see high levels of turnout. I believe that this will be the case. The fact that the referendum will be combined with other elections on 5 May will help to increase turnout. The campaigns in the run-up to the referendum

7 Feb 2011 : Column 30

will increase public awareness. The work of the Electoral Commission in promoting public awareness about the referendum and the media coverage about the referendum will help. In previous referendums, the turnout has generally been above 50 per cent. It was 64 per cent in the 1975 referendum on the European Community, 60.2 per cent in the Scottish devolution referendum and 50.1 per cent in the Wales referendum in 1997.

My noble friend Lord Blackwell expressed some concern about setting a precedent if there are any future EU referendums. It is precisely because of the precedent that we should not start setting thresholds. A procedural barrier such as this can lead us into uncharted waters, because someone might come along with different thresholds for future referendums. Surely it is better to have a single, straightforward vote where people know where they stand and what the outcome will be when they cast their vote.

My noble friend raised the question of the United Kingdom. We sometimes have different votes in different parts of the United Kingdom at a general election. Sometimes that leads to some tensions, but I do not think that it is suggested that it has weakened the fabric of our union in any way.

Lord Hodgson of Astley Abbotts: Does the Minister really think that on 5 May, when we have a Scottish parliamentary election, a Welsh Assembly election and only local government elections in England, the level of turnout is likely to be the same in all three parts of the United Kingdom-not to mention Northern Ireland?

Lord Wallace of Tankerness: It would be rash to predict the turnout, but I think I am right in saying that 84 per cent of the United Kingdom electorate will be engaged in an election as well as in the referendum. That gives every opportunity for the turnout to be higher as a result, and it is perhaps more likely to be better in all parts of the United Kingdom than if no election was being held at all that day, when there would very much be a doubt as to the turnout in different parts.

Lord Dubs: I only wanted to say that London does not have elections, which is surely crucial.

Lord Wallace of Tankerness: I know that, but I think that the figure that I have seen is 84 per cent. It is recognised that London does not have elections, which is probably all the more cause for those who wish to stimulate participation to ensure that it is particularly well focused in London.

As my noble friend Lord Tyler pointed out, when the question of a threshold was considered in the other place, Members there sent a very clear message indeed, voting by 549 votes to 31 votes against the proposal. I note in particular that Mr Christopher Bryant, speaking from the opposition Front Bench in the other place, said that he did,

His colleagues followed him into the Lobby.

7 Feb 2011 : Column 31

The noble Lord, Lord Sewel, is in his place. During the debate on the 1997 referendum on devolution, he said:

"The threshold, as we have demonstrated, is one of the most dangerous introductions into the democratic process that has been engineered".-[Official Report, 7/7/97; col. 467.]

I hope that he will confirm that.

Lord Sewel: I do confirm that. I also confirm that that was an advisory referendum.

Lord Wallace of Tankerness: Indeed, and I do not think that that takes away from the point. As the evidence in paragraph 193 of the Lords Constitution Committee report said:

"Despite referendums in the UK being legally advisory, a number of witnesses pointed out that in reality referendums might be judged to be politically binding. Dr Setälä argued that 'in established democracies, it seems to be very difficult for parliamentarians to vote against the result of an advisory referendum'".

It might also have been advisory, but the noble Lord, Lord Rooker, recanting on his vote in 1978 in a debate on the Regional Assemblies (Preparations) Bill on 8 April 2003 in this House, referred to the vote after the George Cunningham speech and said:

"The result was a botched referendum in Scotland, which resulted in a "Yes" vote that could not get over the hurdle ... We are now in the position where we are following the precedent set in Scotland, in Wales"-

that is, a more recent precedent in Wales-

The noble Lord spoke powerfully on that occasion.

The Bill offers simplicity. Above all, it offers certainty. Every vote will count and will not be distorted by any artificial barrier or threshold. My noble friend Lord Tyler asked the noble Lord, Lord Elystan-Morgan, about abstentions counting in no votes. During our debates last week on postal votes and whether people could vote by post if they had voted in person, it was clear that a number of Members of your Lordships' House were registered in two places. They can exercise only one vote, so the other vote will technically, de facto, count as a no vote. Those who have died since the register was made up will count as a no vote, because nothing here allows the register to be recalibrated to take account of people with votes at second homes or those who have, sadly, passed on. I recall very well that these unfairnesses were highlighted time and again in the 1979 referendum in Scotland.

The certainty of the will of the people should be given effect without further complex procedures or further parliamentary debate or political wrangling, so that when people go to the polls on 5 May, whatever their view on the issue at hand, that view will be heard and given effect to. I ask the noble Lord to withdraw his amendment.

Lord Rooker: My Lords, I did not expect words that I used as a Minister from that Box to be thrown back at me during this debate. Given that it has been a bit of

7 Feb 2011 : Column 32

a rush since we finished Committee, I would have thought, to be honest, that the Minister's advisers would have been better getting ready the package of concessions that we have been promised than trawling through my old speeches-which, I would add, were on regional referendums. This is different.

The other thing that I want to make absolutely clear is that this is not a threshold in the normal use of the word. This is not what the House of Commons voted on, or against. It is not the threshold. If it is not 40 per cent, it does not stop it going ahead. I do not wish to do that, but with all the arguments and permutations that one can think of, one can imagine lots of reasonable cases to be made to proceed accordingly after the result. All I am saying is that, given the binding nature of this, as others have said, and not knowing what is going to happen in only the second-ever national referendum, and on a key issue of changing the voting system-not like elections, where Governments come and go, as someone said-it just gives Parliament an opportunity to think again, and Parliament would be well advised to take the will of the voters. I do not argue with that at all, but I simply say that the Bill is too black or white, all or nothing.

By the way, I do not claim any credit for this amendment. I wrestled last week with how I could bring back the issue of a consultative indicative-which failed in a vote on, I think, 6 December-and deal with the idea of thresholds, which I am intrinsically against for the reasons that many noble Lords have explained. Nevertheless, we have to have this as a back-up. I was wrestling with this with a very bright young person in the back of a taxi when the solution was offered to me: join the two together-make it indicative only if the voter turnout is different. We can still proceed accordingly; we can still have the referendum, still have the result, still make the change to AV, whatever the voter outcome. I am just saying that if the voter turnout is less than 40 per cent, Parliament could say, "Hang on, we had better think about this again".

We have come a long way since those who originally proposed the alternative vote-the Electoral Reform Society and company-actually said, "It is so small a change, you do not need a referendum". That has been their case virtually all along-that we did not need a referendum on this. I do not support the AV system in the Bill anyway, but that is not the issue. I have back-up amendments, in response to the noble Lord, Lord Alderdice, because I genuinely think that you have to get a yes vote in the four countries of the UK. That is not implied in this amendment; it is there in Amendment 11A.

I accept that there is clarity and certainty in the way in which the Bill is drafted. There is too much clarity and certainty when we are dealing with an electorate of well over 40 million. It is true that on election day, as has been said-I have not yet checked the figure- 84 per cent of people are eligible to go to the polls. When you have, among the 16 per cent who are not, a massive block here in the capital city-it is not as though they are spread out all over the country-we will end up with a massive block that will get the chance to vote only in the AV referendum.

7 Feb 2011 : Column 33

I am simply saying that this gives us an opportunity. It does not wreck the Bill-I repeat this for those who will deliberately misunderstand and misreport what we say-it does not wreck the idea of the AV referendum, it does not stop the outcome. Whatever the outcome of the election, it can still proceed if there is a yes vote. All I am saying is this; let us give ourselves, as a Parliament, the opportunity to have a rethink.

My final point is that I know that it looks simple. It is a few words-and Amendment 10B should attach to this to give discretion in Clause 8-but the general will is there. Everyone understands what we mean. If this were carried, parliamentary draftsmen would knock the other clauses into shape tomorrow to make it work. I can give noble Lords a classic example of that. The next two amendments after this-

Lord Alderdice: I am grateful to the noble Lord for giving way. It seems to me, and I am grateful to him for it, that in his remarks about subsequent amendments on the four separate parts of the United Kingdom, which would introduce a whole load of complexities such as vetoes, and on the question of the simplicity having to be addressed overnight by parliamentary draftsmen, he has said in effect that what I said is correct: that this is not as simple as it appears and that all sorts of complexities are introduced by opening this particular box. Therefore, I think it would be best for him to withdraw this amendment.

Lord Rooker: I said that they were a back-up. I do not speak for anyone else. If this amendment were carried, virtually half the rest of the amendments to Clause 1 probably would not even be moved-I certainly would not move mine. I am simply saying, "Let's give ourselves a chance to think again". If we are not prepared to do that and the House is prepared to rollercoaster on to a binding referendum in which we do not know what the result is going to be and it could be carried by a majority of one on a small percentage, then I will say, "Hang on a minute, I think I want to build some more checks into this". However, those amendments are a back-up. If this amendment were carried, more of my amendments would disappear, so the noble Lord's point carries no weight at all.

It is in the House's own interest to take the opportunity to give us the chance to think again. This amendment would not destroy the Bill or the referendum and would not stop the outcome being implemented, whatever the result. I think that we should test the opinion of the House.

4.35 pm

Division on Amendment A1

Contents 219; Not-Contents 218.

Amendment A1 agreed.

Division No. 1


Adebowale, L.
Allenby of Megiddo, V.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Best, L.

7 Feb 2011 : Column 34

Bichard, L.
Billingham, B.
Bilston, L.
Blackburn, Bp.
Blackwell, L.
Boothroyd, B.
Borrie, L.
Brett, L.
Bridges, L.
Brooke of Alverthorpe, L.
Brooke of Sutton Mandeville, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Carter of Coles, L.
Cathcart, E.
Chorley, L.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corbett of Castle Vale, L.
Coussins, B.
Craig of Radley, L.
Crawley, B.
Crisp, L.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dixon, L.
Dobbs, L.
Drake, B.
Drayson, L.
D'Souza, B.
Dubs, L.
Eames, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Erroll, E.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Forsyth of Drumlean, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hamilton of Epsom, L.
Harries of Pentregarth, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Healy of Primrose Hill, B.
Henig, B.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hollick, L.
Hollins, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Kennedy of Southwark, L.
Kilclooney, L.
King of West Bromwich, L.
Kinnock of Holyhead, B.
Knight of Weymouth, L.
Laming, L.
Lamont of Lerwick, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Listowel, E.
Lofthouse of Pontefract, L.
Low of Dalston, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mar, C.
Martin of Springburn, L.
Massey of Darwen, B.
Mawson, L.
Maxton, L.
Meacher, B.
Mitchell, L.
Montgomery of Alamein, V.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Myners, L.
Neill of Bladen, L.
Nye, B.
O'Loan, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Palmer, L.
Pannick, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prashar, B.
Prescott, L.
Prosser, B.
Puttnam, L.
Quin, B.
Quirk, L.
Ramsay of Cartvale, B.
Reid of Cardowan, L.
Rendell of Babergh, B.

7 Feb 2011 : Column 35

Richardson of Calow, B.
Rogan, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Saltoun of Abernethy, Ly.
Sandwich, E.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stair, E.
Stevenson of Balmacara, L.
Stirrup, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Swinfen, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Tenby, V.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Wills, L.
Wood of Anfield, L.
Wright of Richmond, L.
Young of Hornsey, B.
Young of Norwood Green, L.


Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Alton of Liverpool, L.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Benjamin, B.
Berridge, B.
Bew, L.
Black of Brentwood, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Broers, L.
Brougham and Vaux, L.
Browning, B.
Buscombe, B.
Butler of Brockwell, L.
Butler-Sloss, B.
Carlile of Berriew, L.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Clement-Jones, L.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Courtown, E.
Cox, B.
Craigavon, V.
Crickhowell, L.
De Mauley, L.
Dholakia, L.
Dixon-Smith, L.
Doocey, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Empey, L.
Falkland, V.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Feldman, L.
Fellowes, L.
Flather, B.
Fookes, B.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.
Glenarthur, L.
Glentoran, L.
Gold, L.
Goodhart, L.
Goodlad, L.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Hennessy of Nympsfield, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Imbert, L.
Inglewood, L.
James of Blackheath, L.
Janvrin, L.
Jenkin of Kennington, B.

7 Feb 2011 : Column 36

Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Kakkar, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Leach of Fairford, L.
Lee of Trafford, L.
Lindsay, E.
Lingfield, L.
Liverpool, E.
Loomba, L.
Luce, L.
Luke, L.
McColl of Dulwich, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Mancroft, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Mogg, L.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Neuberger, B.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Palumbo, L.
Parminter, B.
Patten of Barnes, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Plumb, L.
Popat, L.
Powell of Bayswater, L.
Ramsbotham, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Ritchie of Brompton, B.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Ryder of Wensum, L.
Sassoon, L.
Scott of Foscote, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shipley, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Stevenson of Coddenham, L.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Trefgarne, L.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Turnbull, L.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Wade of Chorlton, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Warsi, B.
Watson of Richmond, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Wilson of Tillyorn, L.
Younger of Leckie, V.
4.54 pm

Amendment A2

Moved by Lord Rooker

A2: Clause 1, page 1, line 6, at end insert-

"(2A) The referendum is to be held on 5 May 2011 unless before then an order is made under subsection (2B).

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(2B) If the Minister is satisfied that it is impossible or impracticable for the referendum to be held on 5 May 2011, or that it cannot be conducted properly if held on that day, the Minister may by order appoint a later day as the day on which the referendum is to be held.

(2C) Where a day is appointed under subsection (2B), the Minister may by order make supplemental or consequential provision, including provision modifying or amending this Act or another enactment (and, in particular, provision modifying or amending this Act as regards the meaning of "voting area" or "counting officer").

(2D) An order under this section may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament."

Lord Rooker: My Lords, in moving Amendment A2, I wish to speak also to Amendment 7B, which I shall move later. In line with what I have said previously, I give notice that I shall not move my other amendments. I have to move Amendments A2 and 7B as they are government amendments to make the decision that was taken on 6 December to hold the referendum before 31 October 2011 work.

The noble Lord, Lord Alderdice, interrupted me when I was winding up. I was about to say that when the House makes a change with a few words that we all understand, the parliamentary draftsmen have to draft a provision to make it work. Back on 6 December the House voted by four votes that the referendum must be held before 31 October 2011. I am told that to make that work parliamentary draftsmen have drafted Amendments A2 and 7B. The referendum is planned for 5 May. As far as I am concerned, that was always okay, but my view is that in case something prevents it happening on 5 May, the Government need a lifeboat to enable it to take place before 31 October. Therefore, on behalf of the coalition, I am pleased to move Amendment A2 now and Amendment 7B later.

Lord Falconer of Thoroton: First, I congratulate my noble friend Lord Rooker, who knows the mood of the House much better than anyone else in it. It was a splendid victory. Perhaps I may also say how much I agree with his request for the list of concessions. I can help him on that. I was handed them at 2.29 pm this afternoon, and I have to say that they do not amount to very much, I am afraid. I obviously support the amendments that my noble friend is proposing. In effect, they make whole the amendment passed in Committee.

Lord Wallace of Tankerness: My Lords, I thank the noble Lord, Lord Rooker, for moving the amendment, as he said, on behalf of the coalition. He described the reasons for it. The Bill as it stood was defective, because, while the noble Lord specified that the referendum had to take place before 31 October, there was no means for identifying when the date had to be set-hence the need for an order.

The amendment also sets an appropriate test for Ministers to satisfy before using any order-making power, whereby,

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The test is right, because the referendum date can be moved away from 5 May only for practical reasons. It would be wrong, and have very serious implications, if the reason for that was the result of some delay that had not allowed consideration of the Bill to be completed in time.

The associated amendment to Clause 4 is also necessary in this context to ensure that the scheme which the noble Lord, Lord Rooker, envisages is properly workable. It provides a new power to make provision in secondary legislation to take account of a situation in which other polls are due to be held on any other referendum date set by the order.

Clause 4 as it stands will ensure that any poll which that clause already mentions is automatically combined with the referendum if it takes place on a new date set for the referendum. Any polls which Clause 4 does not mention would not be combined with the poll. It is impossible to say at this stage whether it would desirable to combine a referendum with other polls. A decision on that would need to be taken at the time and will depend on the types of polls.

In conclusion, I reassure noble Lords that, given the flexibility that these powers need to provide, any order made using the new powers will necessarily be subject to the affirmative resolution procedure. I end on a note of caution, because I cannot speak on this subject without saying how unfortunate it would be if the referendum were not to take place on 5 May.

Lord Forsyth of Drumlean: My Lords, can my noble friend comment on the concern expressed north of the border about the coincidence of the referendum and the elections to the Scottish Parliament, and the difficulties that returning officers will have in ensuring that the count is available? The results may not be available on the Friday and be delayed. Will this be a problem, and have the Government any plans to avoid the difficulty whereby Members of the Scottish Parliament will not know for some time whether they have been elected and the position of the Administration in the Scottish Parliament, because of the difficulties of counting both polls at the same time?

Lord Foulkes of Cumnock: My Lords-

Lord Wallace of Tankerness: The noble Lord, Lord Foulkes, has an amendment later that will give us an opportunity to discuss the linkage of polls. I repeat what I said in Committee last week: it is certainly intended that the votes for the Scottish parliamentary election will take precedence over the counting of the votes in the referendum. Inevitably, there will have to be verification, because Scottish election votes may be found in ballot boxes intended for the referendum. It must be for returning officers and counting officers to determine their own arrangements, because issues of tiredness have come up in the past. It is certainly anticipated that we will not have to wait until Saturday for a result.

My noble friend Lord Forsyth expressed concern about the forming of an Administration. I have been involved twice in forming an Administration after a Scottish election. If the result had been known on the

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Saturday or even the Sunday, it would not have made much difference. However, that is by the way, because the intention is that the counting of votes for the Scottish election will take priority over the referendum.

5 pm

Lord Forsyth of Drumlean: I do not wish to detain my noble friend. I understand what he said in Committee, namely that the counting of votes for the Scottish election will take priority. However, the issue is whether the process of validating the ballot papers will result in the election result being delayed. I have no idea what the results of the election will be, but it is conceivable that one political party will have a majority. It does not follow necessarily that there will be a period of the kind that my noble friend described. Given that the Government have decided to hold the referendum at the same time as the Scottish elections, they have an obligation to make sure that the result of the Scottish elections are delivered on time and are not disrupted.

Lord Wallace of Tankerness: I will add that they should also be delivered accurately. Therefore, this is a matter for the returning officers and counting officers, who are best placed to judge whether counting should start immediately or the following morning.

Lord Foulkes of Cumnock: For once, I agree 100 per cent with the noble Lord, Lord Forsyth-the noble Lord, Lord Baker, looks very worried. I draw the attention of the noble Lord, Lord Forsyth, to Amendment 5F on page 3 of the revised Marshalled List. If the Government were willing to accept the amendment-or even better, if the Committee were to accept it-that would deal with what the noble Lord, Lord Forsyth, wants, for exactly the reasons that he put forward, which are sound and sensible.

Lord Wallace of Tankerness: My Lords, we will return to this issue when we debate Amendment 5F. I look forward to the contributions of the noble Lord, Lord Foulkes, when he moves it, and of my noble friend, Lord Forsyth. We will debate this more fully at a more appropriate time.

Lord Kilclooney: We now know the order of priority in Scotland, but the situation in Northern Ireland is getting more confusing. In the past few days, there have been many complaints about having three elections on the one day. Will the Minister tell the Committee the order of the three counts in Northern Ireland?

Lord Wallace of Tankerness: When we debate Amendment 5F, I will be able to give a clear answer to that. I do not wish to hazard a guess at this stage. I think that there has been a statement from the chief counting officer, who is the chair of the Electoral Commission, that the counting of the referendum will start at 4 pm on the Friday. I will confirm that that statement has been made, and what the order will be in the Northern Ireland elections. I think that I am right in saying that some of them are conducted on the

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single transferable vote, which itself takes time-I put it no higher than that. Amendment 5F does not necessarily include Northern Ireland, but now that the point has been raised I will certainly be in a position to answer the noble Lord when we come to debate it.

In conclusion, the Government still wish to see the referendum take place on 5 May. The Electoral Commission and the electoral administrators are ready. The public also will be ready, and the Government would consider it a very grave matter indeed if the referendum did not meet the 5 May timetable. In the spirit with which the noble Lord, Lord Rooker, moved his amendment, I am happy to accept it and thank him for his constructive engagement.

Amendment A2 agreed.

Amendments A3 and 1 not moved.

Amendment 1A

Moved by Lord Campbell-Savours

1A: Clause 1, page 1, leave out lines 10 and 11 and insert-

"Should that system be changed and a different system of electing MPs be introduced at the next general election?"

Lord Campbell-Savours: This amendment would amend the referendum question to read, "At present, the UK uses the 'first past the post' system to elect MPs to the House of Commons. Should that system be changed and a different system of electing MPs be introduced at the next general election?". This is a particularly important amendment because it goes to the heart of the question that I believe will be in the minds of the electorate.

I start from the position that we are entering a period of entrenched multiparty politics in the United Kingdom. We have at least three major parties and a number of other parties on the fringe. At this stage, we should all stand back and consider the work of Professor Patrick Dunleavy of the London School of Economics and Professor Helen Margetts of the Oxford Internet Institute, who have repeatedly pointed to the break-up of the two-party system. In their 2005 paper, they pointed to the fact that in 2005 the two-party share of the vote fell below 70 per cent for the first time. At a meeting held in the Jubilee Room some three months ago and attended by a number of Members of this House of all political and Cross-Bench persuasions, Patrick Dunleavy set out the basis on which he was arguing the splintering of party support within the United Kingdom. It seems to me that Maurice Duverger's law that plurality rule systems induce smaller numbers of parties is now being turned on its head. The fact is that plurality systems are increasingly turning in chaotic results, and this is now drawing us into a period of proportional representation and alternative systems.

I also believe that we are now undergoing a period of prolonged transition with the Scottish Parliament, the Welsh Assembly, the European Parliament, the London Assembly, the Northern Ireland Assembly and the mayoral elections all introducing new systems to British electoral arrangements. I believe, too, that the whole process is unstoppable. Indeed, when the

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debate on Lords reform comes to this House, it will no doubt be dominated not only by the issue of powers but by the question of which electoral system will apply in our case.

The question is: how can we manage change in relation to the House of Commons? Against the background of a break-up in the way that the electorate cast their votes, the multioptional, preferential voting scheme now on offer in this Bill can only be described as a grubby little compromise, in the sense that it is the ill-considered product of a backroom deal which in my view electoral reformers will live to regret. The fact that the Labour Government, in their dying days, tried to introduce this system in the Constitutional Reform and Governance Bill is no justification for its introduction in this Bill. Indeed, I am convinced that it would have been similarly treated if they had tried to introduce it here in this House.

I have reflected objectively, as many others will have done, on why the Liberal Democrats did the deal that they did. They probably thought that they had no option, but I believe they were wrong and that they made an historic miscalculation. They were clearly desperate to secure a deal on electoral reform at any price. There was an alternative and I think that they completely underestimated their clout during the coalition talks.

What should the negotiators have done during those discussions? First, they should have recognised that the Conservatives needed them as part of the coalition; secondly, they should have sought assurances as to continuity of the coalition, as indeed they did with the Fixed-term Parliaments Bill; and, thirdly, they should have sought and secured a May referendum but with the much simpler question that my amendment provides. The advantage in asking my question in the referendum is that the public will not get hung up on AV. In my view, AV is a complicated system which the public will never understand.

Furthermore, by asking a simpler question, we will be able to avoid rubbishing the AV system as currently proposed. If in the referendum the answer to the question I ask in the amendment was no, that would end the debate. If the answer was yes, that would mean there would be another system at the next general election. A no answer would mean that the issue was dead; a yes answer would open up every possibility imaginable. If the answer was yes, all alternative systems would have to be evaluated by some kind of inquiry and Parliament would be required to approve a new system for the next election-but, crucially, not the first past the post system, which would have been ruled out by a yes answer to the question in my amendment. Parliament could not duck the decision as it would have been mandated by the electorate in the referendum. All we need to know is whether the electorate want to end first past the post.

So who would do the evaluating and what would they evaluate? A Speaker's conference could evaluate the system or systems in the event that the referendum was to provide a yes vote. A similar form of committee inquiry-and, in certain circumstances, even the Electoral Commission if its remit was widened-could evaluate the various systems. What would they evaluate? They would evaluate AV and its variants-that is, SV and

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the Australian federal system-AV plus, SV plus, AMS and STV-and they would also evaluate first past the post plus, which has never as yet featured on our agenda and which, in reality, was the system that formed the background to the Jenkins commission's inquiry.

As to the timetable, under the question in the amendment the referendum would be in May 2011; an inquiry would be established in July 2011; and the report to Parliament would be in November 2011. It would be a factual report based on the various systems and the arguments both for against; it would not necessarily make recommendations. The legislation could be introduced in the Session beginning April 2012, which would be three years before the end of the five-year fixed-term Parliament and two years before the end of a four-year fixed-term Parliament in the event that that was approved by Parliament. The Parliament Act would not apply because the people would have mandated the Government to introduce a system based on the inquiry, which would be approved by Parliament before the next general election.

The programme could be allowed to slip six months. The referendum could be held in October-which I would prefer and which was proposed in the Labour Government's original legislation of early last year. Parliament would take the final decision, and even then there would be an opportunity for pre-legislative scrutiny.

From a Liberal Democrat point of view this has one huge advantage: once the people say yes to ending first past the post and introducing a new system by the next election, the least you will get is AV. That is the least you get, because the mandate from the people requires a change in the system prior to the next general election. Therefore, automatically, the minimum change would be to AV and, because all options are open, the real debate would then take place.

My amendment puts everything back on the table, but in a way whereby, in the event that there was a yes answer to the referendum question, all systems would be evaluated, so we might have the opportunity to introduce a system which, in my view, is more likely to deal with the problem that exists within the United Kingdom of disproportionality in representation.

This is the last chance saloon. I hope that, although we are late in proceedings on the Bill, Ministers will consider the issues that I have raised.

5.15 pm

The Deputy Speaker (Viscount Ullswater): I must advise your Lordships that if Amendment 1A is agreed to, I will not be able to call Amendments 2 or 2A because of pre-emption.

Lord Howarth of Newport: My Lords, Amendment 2A is in my name and was grouped with Amendment 3 in the name of my noble friend Lord Rooker, who did not move his amendment. If I may say so, I think that he was right not to move his amendment, because I think that the amendment that has just been moved by my noble friend Lord Campbell-Savours is the best of the bunch of the amendments before us.

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I think that it is helpful to voters to disentangle the two questions-first, do you want change; secondly, what you want to change to? That would enlarge the range of choices that could be considered. There is a difference. My noble friend Lord Campbell-Savours would have Parliament determine which of the other systems which was not first past the post should be the one to go for, whereas my noble friend Lord Rooker wants to offer an à la carte menu to the electors straight away on the day of the main referendum. I like the scheme that my noble friend Lord Campbell-Savours has put forward.

It seems absurd that if we are to go to all this trouble, to have this enormous national debate, and to give the people of this country a unique option to decide whether or not to change our electoral system, a proportional option should not be made available to them. I find it bizarre that STV, which I have always understood to be the preferred option of Liberal Democrats, will not be on the ballot paper at the referendum.

Noble Lords on the Liberal Democrat Benches have told me that I need to be more realistic, that it was not possible for the Liberal Democrats to secure that outcome in the negotiations in those few days when the coalition was formed last May. I do not believe that. At that point, the Liberal Democrats could have secured the inclusion of a proportional-in particular, an STV-option on the ballot paper.

The reality was that David Cameron and the Conservative Party had lost the election. The Conservative Party-and, I assume, Mr Cameron-was frantic to get into government. We know what the Conservative Party does to leaders who it deems losers. We have seen the fate of Mr Hague, Mr Duncan Smith and the noble Lord, Lord Howard of Lympne. I do not think that Mr Cameron would have wanted to go the same way. I think that he would have been prepared to concede something that was dear to the hearts of -canonical to-the Liberal Democrats but which they apparently did not have the nerve or the skill to insist on in those negotiations. In failing to press their advantage at that point, they did the country a major disservice. If we are to have this referendum, let us have all the sensible and serious choices-or at least a selection of them-put before the people. If it is to be only a selection of them, surely it must include STV.

We know the inadequacies of the alternative vote system-I will certainly not go into them in any detail-but the sheer unpredictability of the effect of using the second, third, fourth and fifth preferences on the part of voters casting their vote means that it would be more rational to have a lottery than to resort to this system. Moreover, there are varieties of AV. For some reason, the variety of the alternative vote system that those political parties and political leaders in this country who favour it have alighted upon is the system known as optional preference ordering. As my noble friend Lord Campbell-Savours explained very tellingly in the first day of our Committee proceedings all that time ago, the evidence from Australia is that, once you cease to insist that everyone voting under the alternative vote system has to fill in all the boxes stating their preferences, the upshot is that you get a large proportion

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of electors only casting a vote for their preferred party. In practice, therefore, the optional preference-ordering version of AV is very little different from first past the post. It does not seem to be a sufficiently worthwhile alternative to offer the voters in the referendum. I do not mind it being there, but other serious choices ought to be on offer as well.

Lord Rooker: Although I am not going to move anything, I shall use my notes. When the New Zealand Electoral Commission looked at this in respect of AV, it said:

The introduction of this would not be so much a reform but a complicated reshaping of what it already had. That is why it ruled it out. It was not even considered. It was one of the four options, but as far as the Electoral Commission in New Zealand in the early 1990s was concerned, it was not even a runner.

Lord Howarth of Newport: It must be wise to learn from the experience of other countries that have been ahead of us in considering these matters. I contend that STV, above all, should be a major option. My own amendment simply would have added it to the question that is set out in Clause 1 of the Bill: do you want first past the post?; do you want AV? I would have added the option: do you want the single transferable vote system?

I certainly do not intend to discuss at any length the merits and the demerits of STV. The virtues of proportional representation are that it is perceived by some as being fairer and that it tackles the problem-which I think is a very real problem and one of the explanations for the disaffection with our parliamentary system and our political culture that is so widely felt in this country-of the feeling that most people's votes are wasted, that elections are determined by small minorities of voters in small minorities of constituencies, and that other voters hardly need to take the trouble to vote because it is not going to make any difference to the eventual outcome as to who forms a Government. That feeling of unfairness-the feeling that the system at the moment does not give adequate and equal force to everyone's vote-is a real problem. To that extent, there is a case for STV.

People will not, however, agree about what fairness is. Some will say that a fair system is a system that creates representation in Parliament that is in exact proportion to the distribution of votes between the parties in the country as a whole. Others say that a fair and representative system is one that expresses and represents communities in Parliament. That has been our tradition. The defect of PR is, of course, that it ignores people's sense of identity in their constituency. It means that you no longer have the single member constituency-the constituency in which one person of whatever party is elected to represent and serve all the constituents-which is a very precious and valuable part of our system.

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Another unfortunate consequence of STV can be that it leads to a great deal of fratricide within parties as candidates seek to persuade people to vote for them rather than for other candidates in their own parties. I will not go on about the pros and cons, except to say simply that they are numerous on both sides.

Lord Davies of Stamford: Before my noble friend leaves the disadvantages of proportional representation in any form, does he agree that among its most serious problems is, first, that it dilutes individual responsibility, and secondly, that it greatly enhances the power of party bosses because of their power to move an individual around in the list on which the party is elected?

Lord Howarth of Newport: I agree entirely with my noble friend that these are further defects. PR condemns us to a perpetuity of coalition Governments and gives disproportionate power to third and lesser parties, as we have seen for many years with the Free Democratic Party in Germany. I would not wish to vote for it, but my point is that people should be allowed the opportunity to vote on all the serious choices that ought to be considered when we are contemplating the possibility of changing the electoral system. I am confident that first past the post would prevail and I would campaign for it, but it would be a salutary exercise in our democracy if we were to reconsider what our electoral system should be, with every reasonable option being available to the people.

I am surprised, therefore, that what Mr Clegg thought of as a "miserable little compromise" in offering the option of voting only for AV now appears to him to be a happy little compromise. I fear that he regards it as a stepping stone towards another referendum, which he hopes will not be long delayed, in which people, finding that they have been sold a pig in a poke with AV, decide that they do wish to move on to STV after all. In an earlier debate I quoted the Constitution Committee of your Lordships' House, which deprecated the resort to referendums. Indeed, I think that to lead us from one referendum to the next because the first referendum offers an inadequate choice to the people that they quickly find unsatisfactory would be a thoroughly bad thing.

For these reasons, I support the amendment in the name of my noble friend Lord Campbell-Savours, and I hope that he will want to pursue it with all the vigour he can muster.

Lord Newton of Braintree: My Lords, I do not particularly want to follow the remarks of the noble Lord, Lord Howarth of Newport, not least in that I would not want to go down the partisan path he took in the middle of his speech, no doubt unintentionally. I do, however, want to find out exactly what is being asked because I found myself getting a bit open-mouthed at some of the things that the noble Lord, Lord Campbell-Savours, said. Do I understand that he wants a proposition that says, "Do you want change?", to which in any normal circumstance, even if your wife says that you need a new dressing gown or pair of slippers, you ask what the alternative is? Then, when they ask you what the alternative is, you say, "We

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do not actually have an alternative. There are a dozen, 15 or 20 of them". Once you have decided whether you want an alternative, the politicians will decide what alternative you want. I am bound to say that that totally lacks credibility, and I could not conceivably vote for it.

Lord Falconer of Thoroton: My Lords, at the heart of the amendment in the name of my noble friend Lord Campbell-Savours is the proposition that there has not been sufficient examination of what the right system is. It reflects the thump-thump-thump throughout this debate that there has been no adequate examination of the various voting systems. I notice that the noble Lord, Lord Newton of Braintree, who is very much to be admired, is indicating from a sedentary position a word that suggests he does not necessarily agree, but I do not invite him to express it.

That is not just my view; it is the view of the two Select Committees in both Houses of Parliament, it is the view that underlay the amendment of my noble friend Lord Wills calling for a commission of inquiry, and it is the basis upon which my noble friend Lord Campbell-Savours has put his amendment now. Like everything on Report, it is a refined version that says, "Let us have it, but only if there is a desire for change". The fact that when Lady Newton of Braintree proposes that the noble Lord, Lord Newton of Braintree, buys a new dressing gown, he says yes, does not indicate that everyone, when confronted with change, says yes. Indeed, most people, when confronted with change on important political issues, tend to say no, so I will be interested to hear the view of the noble and learned Lord, Lord Wallace of Tankerness, on this issue, and the answer to the proposition that if the public want change, we should examine what the right change is before we give them only one choice.

5.30 pm

Lord Neill of Bladen: Before the Minister answers that question, I must confess to being slightly baffled by where we are moving to. The Long Title of the Bill is that it is a Bill to:

The amendment that the noble Lord, Lord Campbell-Savours, is putting forward drops those words about the alternative vote system. The question becomes, "Should the first past the post system be changed and a different system of elected MPs be introduced in the next general election?" We know from the many speeches that have been made that there are a mass of alternatives and variants. The population-the voters-are potentially voting for a whole series of different amendments. You have not then got the answer that you were meant to get. The Long Title goes on to say that it will provide for voting,

They may be in favour of three or four different things. There is no single system for which they are voting. I find that a puzzling result and some thought needs to be given to it.

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Lord Wallace of Tankerness: The noble Lord, Lord Campbell-Savours, has, as the noble Lord, Lord Neill of Bladen, has indicated, proposed an amendment which would take out the option of the alternative vote in a referendum and ask whether the system should be changed and a different system of electing MPs be introduced at the next general election. As the noble Lord said, a variety of different systems have been suggested.

I do not believe for a moment that this would lead to any clear outcome, even if this was the question that was asked. The public might reasonably be confused. What other system of elected MPs would be introduced? What kind of campaign would take place where perhaps a variety of different systems were being canvassed? How would the campaigns in this referendum marshal their arguments and present their case? You would get differing factions, with those who might want a single transferable vote, those who want the supplementary system and those who want the alternative vote. It would result in more questions being asked than answers being provided.

However, I can see that the main point that the noble Lord is trying to make is that there should be further thought on the system, if any, that should replace first past the post. I always find it touching when noble Lords opposite make speeches which appear to have the best interests of the Liberal Democrats at heart. It is very moving but, frankly, those who think that somehow the outcome of the negotiations might have been different were not actually there. Even to mention the possibility of the 1922 Committee being invited to endorse the single transferable vote only needs to be stated to show how unlikely an event that would have been.

Lord Howarth of Newport: Is it not a grievance to the Conservative Party that it can win more votes across the country, particularly in England, and still not be able to form a Government? Is the solution to its problem not then a system of proportional representation?

Lord Wallace of Tankerness: The noble Lord invited me to look to the best interests of the Liberal Democrats. I would not tread anywhere on looking at what might be considered the best interests of the Conservative Party.

If the referendum was on the question proposed by the noble Lord, Lord Campbell-Savours, and if the answer was yes, what would then be the follow-on from that? Would the Government propose a system that would have to be debated by Parliament? My noble friend Lord Newton of Braintree made a good point that you can ask the public if they want a change and if, they say yes, you then leave it to politicians to foist upon them what that change might be. Even if it was a question of, "Vote yes and we will set up a committee", that is not really an appealing slogan on which to have a referendum campaign. Voters could reasonably claim that they had been cut out of a significant decision.

In moving his amendment, the noble Lord, Lord Campbell-Savours, said two things: that Parliament would take the final decision and that, inevitably, the

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next general election in 2015 would be fought on a different system from first past the post. Yet nowhere can Parliament be mandated to pass a Bill to make it an Act. We all know that a change in the electoral system would require primary legislation for it to come into law. If the voters have voted yes to wanting a change, what guarantee will there be that both Houses of Parliament would then manage to coalesce around what that particular change might be? It could be the worst of all worlds, with people voting for change and then finding that politicians have frustrated the change that they seek.

As has been made clear on a number of occasions, the attraction of the approach taken in this Bill is its clarity. We set out how the alternative vote system would work, as comprehensively done in Clause 9 and Schedule 10. Any questions about how optional preferential AV works can be resolved by looking at the Bill. That would not be the case with the noble Lord's amendment. I urge him to withdraw his amendment and, if he seeks to push it to a vote, I invite noble Lords to vote it down.

Lord Campbell-Savours: Perhaps I can apologise for the somewhat staccato nature of presenting my amendment because I was caught short and could not work out finally which notes I had to refer to.

Let me answer the critically important question raised by the noble Lord, Lord Newton of Braintree. The facts are that no one, anywhere, has done any homework on how AV works. Maybe the Liberal Democrats have done some, to work out to what extent it will benefit them. In the event that the amendments had fallen in a different order today, I would have been able to produce earlier during our proceedings the evidence that I will produce under the next amendment-that is, figures which show that a complete miscalculation has been made by the Conservative element in the coalition as to how AV operates, drawing on the Dunleavy material from 1997. A lot of people have not done their homework and are presuming, because there is an item on the agenda that says "AV is presentable and works", that somehow that is enough authority for Parliament to carry the legislation in the form that it has. No work has been done and, until it has been, it is highly irresponsible for any Government to present to the British electorate a question in the form in which this is currently being submitted. No work has been done.

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