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Tuesday, 8 February 2011.
2.30 pm
Prayers-read by the Lord Bishop of Chester.
Crime: Media Reporting
Question
2.36 pm
Asked By The Lord Bishop of Chester
To ask Her Majesty's Government whether they will review the rules for reporting the arrest and questioning of individuals by the police before they are charged with any criminal offence.
The Minister of State, Home Office (Baroness Neville-Jones): My Lords, the principle of a free but responsible press without state intervention is fundamental to our democracy, but the right reverend Prelate's Question raises a number of important issues. On Friday, during the Second Reading of the Anonymity (Arrested Persons) Bill in the other place, the Government undertook to consider whether the contempt laws and guidance on pre-charge reporting contain any gaps that may impede justice.
The Lord Bishop of Chester: I thank the noble Baroness for that Answer. I acknowledge that this is a complex area, as emerged in the debate in the other place on Friday, but will the Government at least consider extending the post-charge restrictions on reporting contained in the Contempt of Court Act to pre-charge questioning of suspects?
Baroness Neville-Jones: My Lords, on the whole the Government take the view that we want to maintain a free but, as I said, responsible press. I do not wish at this stage to go any further than to say that the Government think that there is a potential gap in our protections and that they are more than prepared to look at whether the contempt laws and police guidance on reporting contain omissions that need to be remedied.
Lord Morris of Aberavon: My Lords-
Lord Lloyd of Berwick: My Lords-
The Minister of State, Ministry of Justice (Lord McNally): My Lords, I think that we shall take a question from the Cross Benches and then from the noble and learned Lord.
Lord Lloyd of Berwick: My Lords, in high-profile cases, as I am sure the Minister knows, the police are often under great pressure from the press and others to make an arrest. Does she agree that it is all the more important in such cases that the police should be scrupulous in applying the test of reasonable suspicion, which is an objective as well as a subjective test?
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Baroness Neville-Jones: Yes, my Lords. I think that the police would agree that they need to be scrupulous in applying the guidance that they have in such cases. Indeed, they should apply it in relation to a person who has been detained by them but not charged. They should take care not to impugn that person's reputation.
Lord Morris of Aberavon: My Lords, while the press are usually economical in the reporting of an arrested person, would I be right in surmising that the Attorney-General would have expressed some anxieties about the extent of the reports on the arrests in the Bristol case? As Attorney-General, I sometimes had to refer to the courts cases about which I was anxious. I did so not always successfully, as it was not easy to judge where the line had been crossed. In discussions between the Attorney-General and the press, would there be any merit in revisiting the boundary lines of what is fair reporting without prejudicing an arrested person?
Baroness Neville-Jones: My Lords, the Attorney-General will obviously take his remit extremely seriously. I do not know whether he will choose that route; the view has certainly been expressed, so I have no doubt that he will take notice of it. I can assure the House that the Attorney-General is quite clear that he needs to examine this issue seriously, because it has considerable ramifications.
Lord Soley: My Lords, is the Minister worried by the increasing-
Lord Borrie: My Lords, does the noble Baroness agree that it is usually unwise to act to change the law because some unfortunate individual has been embarrassed or irritated? Does she also agree that, in this type of case, questioning and the publication of the questioning by police often encourage potential witnesses to jog their memories and assist in the successful prosecution of somebody, not necessarily the first suspect?
Baroness Neville-Jones: My Lords, the noble Lord is quite right that this can be of assistance. It obviously has to be balanced with the rights of individuals who may have been detained and subsequently not charged. The Attorney-General has not chosen to act immediately precisely because he wishes to look at the issues involved, not necessarily just at this case. The Private Member's Bill was not supported by the Government and has been withdrawn, but he is going to look at the issues.
Lord Campbell of Alloway: My Lords, in these days of severe attack, one has to be careful about these rules in the interests of the whole country. To some degree, does one not have to trust the police to exercise a fair discretion and not put everything in writing?
Baroness Neville-Jones: My Lords, the police of course have guidance in writing, but the noble Lord is quite right to say that they have to interpret that guidance in light of the operational circumstances of any case. I am sure that that is what they try to do. Clearly there are tensions in the whole question of the freedom of the press, the need for the police to conduct
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Lord Soley: All good things come to those who wait. This is a much wider problem and it needs to be faced. It is not just the trashing of people's private lives but also the increasing use of fishing expeditions to invade people's privacy. Is it not time that the Government said to the press that we need to discuss this in a much more serious way? It is a balance between the rights of reporting and the rights of privacy and how that is dealt with. The Government need to take the lead and maybe put it on the agenda of the next meeting in Downing Street.
Baroness Neville-Jones: My Lords, I think that many of your Lordships would agree with the proposition that there are wider issues involved. Indeed, there are wider categories of people involved, not simply the persons whom we have just been talking about. The Attorney-General wants to look at, first, the question of balance and, secondly, where you draw the line in relation to categories of people.
Baroness Harris of Richmond: My Lords, can the noble Baroness say why the Government changed their decision and dropped the proposed anonymity for those accused of rape?
Baroness Neville-Jones: My Lords, the noble Baroness asks a question that I cannot entirely answer-I do not have the depth of knowledge. I will seek an answer in writing for her. The Government have certainly been looking at this issue for some time and, in the light of this case, have decided that it needs to be gripped.
Equality
Question
2.44 pm
Asked By Lord Smith of Clifton
To ask Her Majesty's Government what is their policy regarding the growing gap between the rich and the poor in the United Kingdom.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, action taken in the June Budget and spending review has demonstrated the Government's commitment to fairness. We set out in the spending review our best estimate of the overall distributional impact of the fiscal consolidation. This shows that the top 20 per cent contribute most to the fiscal consolidation as a percentage of net income and benefits in kind.
Lord Smith of Clifton:I thank the Minister for that Answer in so far as it goes. This gap has been growing for three decades. When does the Minister think that the gap will be so great that it constitutes a threat to the social fabric? Will he also give us a progress report on the pay crackdown on bankers promised by the Chancellor of the Exchequer?
Lord Sassoon: My Lords, the Government take extremely seriously the question of fairness, which is why we introduced for the first time a distributional
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Lord Eatwell: My Lords, in the noble Lord's reference to his Government's policy on this matter and to the Budget, was he not being a little misleading, as the equality analysis in the Budget included the measures introduced by Mr Darling in March? When the measures introduced by the coalition are taken alone, they do not contribute to greater equality.
Lord Sassoon: My Lords, we took some very difficult decisions about which of the previous Government's measures we would continue with and which we would not. The principal measure of the previous Government that we did not continue with was the full national insurance tax-the jobs tax-which would have been a significant drag on the growth prospects of this economy. Of course it was right that we should take into account the distributional effect of the total package of measures that we put through as a Government this year in the Budget and in the spending review. That is just what we have done.
Lord McFall of Alcluith: Is it the Government's intention to adhere to the last Government's ambition to eliminate child poverty completely by 2020?
Lord Sassoon: My Lords, this Government are committed to the Child Poverty Act 2010. I note that the previous Government struggled somewhat with their previous child poverty target; the target to halve child poverty by 2010 was widely acknowledged to have been missed. This Government are committed to the targets in the Child Poverty Act and will bring forward a strategy by the end of March 2011.
The Earl of Listowel: My Lords, the Minister will recall that the right honourable David Cameron, the Prime Minister, appointed Frank Field MP to produce a report on child poverty, which he duly did and recommended early intervention. Is he aware of the report in yesterday's Timesin which Frank Field said that he is very concerned at the threatened closure of many Sure Start children's centres? Will the noble Lord consider with his colleagues what might be done to prevent this? Frank Field suggests that local authorities should be made aware that shortly there will be new child poverty indices and that local authorities will fall down if they do not meet them and if they close these centres.
Lord Sassoon: My Lords, Frank Field's work will indeed inform the child poverty strategy, which, as I said, will be coming forward by the end of March this year. In relation to his reported comments in the
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Lord Boswell of Aynho: My Lords, while I in no sense wish to minimise the realities of poverty, is it not time that we started to move at least some of the terms of this debate away from a static analysis about whether one measure is or is not helpful, or whether there is enough incentive at one point in time, towards a much more dynamic approach in which we emphasise the importance of personal development, education, training and personal responsibility so that, as people move into employment, which is the best solution for poverty, they may better themselves financially and lead a more fulfilling and satisfactory life?
Lord Sassoon: I am grateful to my noble friend and I agree completely with his analysis. That is why we have introduced the £2.5 billion pupil premium to increase the emphasis on the educational development of children from the most disadvantaged backgrounds; that is why we are introducing the £150 million per annum national scholarship fund; and that is why my right honourable friend the Secretary of State for Work and Pensions is working on the most complex and important reassessment of welfare and benefits that has been attempted for two generations in order to get away from the overcomplex system of means-tested cash benefits and the dependency of far too many families who are trapped in welfare.
Baroness Farrington of Ribbleton: My Lords, would the Minister care to answer the question put by the noble Lord, Lord Smith of Clifton, who asked not about the taxation of banks but about bankers? Does he agree with me that if I received a bonus of £100 million and were to lose even half of it, that would not be the same as being in poverty and losing £10 a week?
Lord Sassoon: My Lords, the subject of the Question this afternoon is what the Government are doing about the gap between the rich and the poor, which is something that we take extremely seriously. The best thing that we can do is to set the stable conditions for sustained growth in the economy, because that is what will improve the lot of the poorest in our society.
EU: Police and Justice
Question
2.52 pm
Asked By Lord Pearson of Rannoch
To ask Her Majesty's Government whether they will exercise their right to opt out of the police and justice provisions of the Lisbon treaty after 2014.
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The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government are considering carefully the many different factors and implications involved in this decision, which does not have to be taken until 31 May 2014.
Lord Pearson of Rannoch: My Lords, I am grateful to the noble Lord for that Answer, which does not quite give the full picture. The Government can opt out of all the 90 or so laws now and, if they want to, opt in to any of them individually thereafter.
Does the noble Lord remember the Prime Minister saying:
"We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice's jurisdiction over criminal law"?
First, will the Government support that promise in any vote on this matter-in the House of Commons and in your Lordships' House-which, as the noble Lord knows, has been promised down the other end? Secondly, are not the Government faced here with a straight dilemma: is it to be the wishes of the British people or is it to be appeasement?
Lord McNally: The answer to the last question is the former. The length and complexity of the noble Lord's supplementary questions indicate why the Government are sensibly taking great care to study and consult on these matters, particularly with the committees of both this House and another place, and as he rightly said, my right honourable friend David Lidington has made it clear in a Statement to the House that when the decision is to be made on these matters, there will be a full debate and vote in both Houses of Parliament.
Lord Thomas of Gresford: Does not my noble friend agree that to scrap the co-operation in surveillance, pursuit, arrest and extradition that exists with European countries in areas such as drugs, international fraud and trafficking would be simply daft?
Lord McNally: I will have to check carefully whether "daft" is a parliamentary term, but I would have thought that such a course of action would be somewhere in that range of description.
Lord Bach: My Lords, it is very good to have the Minister back answering Questions on behalf of the Government. We missed him.
The Minister will know that, during the last Parliament, the Justice Select Committee looked at this matter with some care and, I have to say, commended the last Government for much that they did in this undoubtedly very complex field. The present Government are to be commended on their reply to the Select Committee of another place, in which they said that,
Would the Minister agree that what are needed before we move to legislation of any kind under the Stockholm programme are evidence-based proposals
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Lord McNally: My Lords, yes it is. That is why we are following the pattern, as the noble Lord said, of looking at these matters in a pragmatic and practical way, with a mind to defending essential British interests and making sure that our judicial system is protected while also ensuring that we retain the many benefits of cross-border and EU co-operation referred to by my noble friend Lord Thomas.
Lord Hannay of Chiswick: Does the Minister agree that it would be a little odd to suggest that we should give up the right to decide whether to opt in? Will he confirm that the Government would opt into an EU measure only when they considered it to be in Britain's national interests? Does he not think that to be able to opt in only after the matter has been negotiated by everyone else and not by us would be the least good way in which to bring our influence to bear?
Lord McNally: Again, I agree. The practical way in which we have operated since coming into office is to look at the merits of the case, to put our decision before the two Select Committees of both Houses and to listen to their advice. It makes no sense at all to have knee-jerk reactions or to play to various galleries. We are looking at these matters in Britain's interests, consulting as far and wide as we can and listening to Parliament. That is the best way in which to get the best decisions.
Lord Vinson: My Lords, under the guise of anti-terrorism and protecting society, many measures throughout history have been introduced that chip away quietly at many of our ancient liberties as enshrined, not least, under habeas corpus. I hope that the Minister will take very seriously the widespread anxiety about the continual erosion of the rights of the British citizen, which is done possibly for good short-term reasons but, in the long run, is chipping away at many of our basic and fundamental liberties.
Lord McNally: My Lords, one of my responsibilities at the Ministry of Justice is as Minister for civil liberties. I assure my noble friend that the concerns that he expressed are never far from my thoughts. Our civil liberties will have to be protected and guarded.
Lord Foulkes of Cumnock: Can the Minister recall that, when he and I fought side by side in the Labour movement for Europe for greater co-operation among the countries of the European Community, we were exceeded in our enthusiasm only by the Liberal Democrats? Is that still the case?
Lord McNally: The last time I waited to respond to an intervention from the noble Lord, Lord Foulkes, I keeled over and spent four days in St Thomas' Hospital. But I am glad to walk down memory lane with him.
Lord McAvoy: My Lords, would the Minister not agree that using denigratory terms such as "daft" and "playing to various galleries" devalues the point made
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Lord McNally: Again, I could not agree more. I am saying that successive Governments have built in methods of scrutiny and consultation that should reassure all but the most sceptical of colleagues. What we are doing now and what is before both Houses should give them that reassurance. Perhaps the noble Lords, Lord Foulkes, Lord Pearson of Rannoch and Lord McAvoy, and I could meet to discuss these matters.
Citizens Advice Bureaux
Question
3 pm
Asked By Lord Hunt of Kings Heath
To ask Her Majesty's Government what assessment they have made of the impact of the reduction in grants to citizens advice bureaux on their ability to provide advice to the public.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): My Lords, the Government value highly the work of Citizens Advice and of citizens advice bureaux, but the provision of advice and the funding that goes with it are a matter that rests with local authorities based on local needs and priorities. We know how difficult it is at the moment for local authorities facing tough decisions, but we have made it clear to them that in setting budgets the voluntary sector is good value for money and should be seen as a solution, not as a problem for them.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness. She says that this falls to local authorities. Is she aware that as a result of the cuts made to the CABs in Birmingham, which has a Conservative/Lib Dem authority, all its bureaux are due for closure in the next few weeks? Is she also aware that the Law Centre is similarly affected by cuts in legal aid, which are the responsibility of central government? That is being replicated up and down the country. Where are people to turn to for advice and what price the big society?
Baroness Wilcox: The noble Lord is of course right to talk about Birmingham, because after all he comes from Hall Green in Birmingham and this is very much a local issue for him. We understand that Birmingham is changing the way in which it funds advice services to ensure greater value for money in a tougher environment. It is not taking away funding for advice services-you should not always believe what you read in the newspapers. There are four bureaux there and negotiations are going on. We will keep our telephone line open while those negotiations are going on. We understand that
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Lord Phillips of Sudbury: My Lords, I declare an interest as one who advised Citizens Advice for many years. Will the Government pay particular attention to the needs of poor people for whom year after year this place legislates rights but who cannot access those rights without the requisite legal help and advice? I am sure that my noble friend will agree that for us not to do that makes hypocrites of us all.
Baroness Wilcox: I agree with everything that my noble friend has said. Worrying about the poorest people in the country is one of the reasons why Citizens Advice is going to be supported so well by the Secretary of State for Business, because it is nearest to the people. In terms of education, advocacy and the role of Consumer Direct, we think that Citizens Advice and Citizens Advice Scotland are nearest to the people in the street for them to be able to get the advice that they need.
Lord Touhig: My Lords, as the Government are determined to cut one very fine source of free advice in Wales by removing 25 per cent of our Members of Parliament, will the Government consider providing central funding for Citizens Advice?
Baroness Wilcox: No, this is a local issue to be dealt with in Wales, for Wales, by its local governments. I am sure that they will take on board all the noble Lord's recommendations.
Lord Elystan-Morgan: Does the noble Baroness accept that the deeper the cuts that affect citizens advice bureaux and legal aid centres, the greater will be the number of cases in our courts, both civil and criminal, that are unnecessarily taken to an elongated, bitter end, to the chagrin and distress of judges and magistrates?
Baroness Wilcox: Yes, of course I agree with what the noble Lord has said. We will do everything that we can to make sure that the advice that is needed by all our people is brought as close to them as possible. That is why local government, local work, localism and the big society are going to succeed where the previous Government failed.
Baroness Turner of Camden: Families will be particularly affected by the decision not to provide legal aid in respect of the family courts. I know that as far as domestic violence is concerned aid will still be available, but on other issues families will be left on their own without any advice. Extra care must be taken to ensure that they have appropriate advice in what are often very difficult circumstances.
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Baroness Wilcox: Proposals for legal aid reform are, as the noble Baroness knows, a matter for the Ministry of Justice, which is currently consulting on Lord Justice Jackson's recommendations. It will make some announcements on this fairly soon.
The Lord Bishop of Exeter: My Lords, I declare an interest as the patron of Exeter CAB. I was interested that the noble Baroness talked about the need for value for money. Could she go further and describe the mechanisms that the Government have in place for assessing the respective value of services delivered through CABs, which in the past have been judged excellent, and those services offered through other media?
Baroness Wilcox: With the local authorities, consultation happens at all times and at all levels to make sure that money is being as well spent as possible. One of the things that we try to emphasise to local authorities is that the voluntary sector is enormously good value for money. This is one of the reasons why these bureaux have been so successful, manned as they have been for so many years by volunteers-since 1939, I think, or 70 years continuously. They certainly are to be congratulated.
Lord Young of Norwood Green: My Lords-
Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B and D) Order 2011
Motion to Approve
3.07 pm
Moved By Baroness Neville-Jones
Relevant documents: 9th Report from the Joint Committee on Statutory Instruments and 14th Report from the Merits Committee.Considered in Grand Committee on 25 January.
Parliamentary Voting System and Constituencies Bill
Order of Consideration Motion
That the Order of Consideration of 7 February be varied so that amendments to clause 12 be marshalled and considered before those to clause 10.
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Parliamentary Voting System and Constituencies Bill
Report (2nd Day)
3.07 pm
Clause 12 : Boundary Commission proposals: publicity and consultation
27G: Clause 12, page 13, line 30, leave out from beginning to end of line 2 on page 14 and insert-
"(1) Once a Boundary Commission have decided what constituencies they propose to recommend in a report under section 3(1)(a) above-
(a) the Commission shall take such steps as they think fit to inform people in each of the proposed constituencies-
(i) what the proposals are,
(ii) that a copy of the proposals is open to inspection at a specified place within the proposed constituency, and
(iii) that written representations with respect to the proposals may be made to the Commission during a specified period of 12 weeks ("the initial consultation period");
(b) the Commission shall cause public hearings to be held during the period beginning with the fifth week of the initial consultation period and ending with the tenth week of it.
(2) Subsection (1)(a)(ii) above does not apply to a constituency with respect to which no alteration is proposed.
(3) Schedule 2A to this Act, which makes further provision about public hearings under subsection (1)(b) above, has effect.
(4) After the end of the initial consultation period the Commission-
(a) shall publish, in such manner as they think fit, representations made as mentioned in subsection (1)(a) above and records of public hearings held under subsection (1)(b) above;
(b) shall take such steps as they think fit to inform people in the proposed constituencies that further written representations with respect to the things published under paragraph (a) above may be made to the Commission during a specified period of four weeks ("the secondary consultation period").
(5) If after the end of the secondary consultation period the Commission are minded to revise their original proposals so as to recommend different constituencies, they shall take such steps as they see fit to inform people in each of those revised proposed constituencies-
(a) what the revised proposals are,
(b) that a copy of the revised proposals is open to inspection at a specified place within the revised proposed constituency, and
(c) that written representations with respect to the revised proposals may be made to the Commission during a specified period of eight weeks.
(6) Subsection (5) above does not apply to any proposals to make further revisions.
(7) Steps taken under subsection (4) or (5) above need not be of the same kind as those taken under subsection (1) above.
(8) A Boundary Commission shall take into consideration-
(a) written representations duly made to them as mentioned in subsection (1)(a), (4)(b) or (5)(c) above, and
(b) representations made at public hearings under subsection (1)(b) above.
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(9) Except as provided by this section and Schedule 2A to this Act, a Boundary Commission shall not cause any public hearing or inquiry to be held for the purposes of a report under this Act.
(10) Where a Boundary Commission publish-
(a) general information about how they propose to carry out their functions (including, in the case of the Boundary Commission for England, information about the extent (if any) to which they propose to take into account the boundaries mentioned in rule 5(2) of Schedule 2 to this Act), or
(b) anything else to which subsection (1), (4) or (5) above does not apply,
it is for the Commission to determine whether to invite representations and, if they decide to do so, the procedure that is to apply.""
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, these amendments provide for public hearings as part of the Boundary Commission's consultation on its initial recommendations.
In Committee last week, in response to the amendment put forward by the noble Baroness, Lady D'Souza, I undertook on behalf of the Government to bring forward amendments for a public hearing process, enabling an opportunity for the public and the parties to express their view in a way that the timetable for completion of that review is met. These amendments, which are in the name of my noble friend Lord McNally, fulfil that commitment.
Perhaps it will be useful if I start by setting out how we arrived at this position. Clearly it is vital that all those with an interest in the proposals have an opportunity to have their say. In the Bill, as it was brought from the other place and as it now stands, there is no provision at all for any oral participation. We believe, however, that the boundary reviews have taken far too long in the past. The last review in England took six years and seven months to report.
Let me be absolutely clear why the Government believe that is wrong. It is not simply a question of impatience or change for its own sake. Constituency boundaries-and this is at the heart of this part of the Bill-are the means by which representation in the other place is distributed. The point has been made on all sides of the House in debates on this Bill that they must accurately reflect that representation. That means work to increase the registration rate. The same principled concern applies to making sure that boundaries are up to date and reflect where people live, not where they used to live. If we took no action, the next boundary review may not take effect until 2020. This would mean that in 2018 there will be electors who reach voting age and register to vote who will not even have been born when the basis of the pattern of representation in the Commons was determined. That is unfair and unacceptable and drives inequality in the weight of a vote. It is one of the key principles that the Bill must address.
When we were drafting these proposals it became clear that the existing system of local inquiries was not fit for purpose. Yes, it satisfies the urges of political parties to put their case at considerable length at times, but it was rarely successful in engaging the general public. I cannot make this point forcefully enough to the House. We have, many times in these debates, traded quotes across the Dispatch Box in a
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"This time you are going to have much more where the local people are going to be concerned because suddenly the pattern of representation is going to be very different from what they have been used to for a long time".
The observation has been made on all sides of the House that there might indeed be a far greater degree of interest in the next review on the part of local people, because there will be a greater degree of change in the constituency map. We have reflected on those concerns and we have heard concerns during our debates. I think the noble Lord, Lord Brooke of Alverthorpe, mentioned his experience, when people having the opportunity to have their say was so important. The noble Baroness, Lady Liddell of Coatdyke, referred to an inquiry in the Monklands constituency-in which the late John Smith had his last public engagement-where local communities had a valuable opportunity to have their say. However, that is not the same as an argument for restoring the old system of local inquiries. If the concern is to give people the chance to have their say on proposals, old-style local inquiries will not do that. The body of evidence on that point is emphatic.
The amendments before your Lordships' House today are the Government's response to all these issues. They provide for a new public hearings stage as part of the consultation process. Their purpose is set out in new Schedule 2A, in government Amendment 39, and could not be plainer:
"The purpose of a public hearing is to enable representations to be made about any of the proposals with which the hearing is concerned".
Representations to the commission in person will be considered in the same way as the written submissions. The commissions have sensible discretion as to how many hearings there are in each region and to vary the length of the hearing, but there must be a balance of process against the principle of up-to-date boundaries. We cannot have an unlimited number of lengthy inquiries-in some cases during the previous boundary review these lasted for 12 or 10 days-focused on one or two counties or boroughs, in which lawyers can speak at length on behalf of political parties, thereby crowding out the general public, unless they happen to suit a political party interest. We will protect the commissions by placing a clear limit of five hearings in each nation or region of a maximum of two days' duration, which between them will cover the full range of the commissions' proposals.
I should be clear that what we envisage here is genuine public engagement. The public hearings will take place during the period for written representations. They will not commence until week 5, so that everyone has time to consider the commissions' proposals and
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In addition, we have recognised that there is value in the scrutiny of others' proposals. That is why these amendments also provide that at the end of the 12-week initial consultation stage, all the representations, including the record of the public hearing, will be published. There will then follow a four-week period for counter-representations on these proposals. This will allow for the effective scrutiny of the arguments put forward by others, and will ensure that the commissioners' deliberations are better informed and that the recommendations are more robust. This kind of scrutiny does not need a process akin to a court, whereby a witness is cross-examined. This part of the amendment fulfils our commitment to the noble Lord, Lord Lipsey, who brought the recommendations of the British Academy, including those of Professor Johnston, to the attention of the House. That aspect of this amendment is modelled on that British Academy report.
We recognise the legitimate stake that political parties have in this process and that they can assist in bringing the arguments of others to light. That is why the amendments provide explicitly for a role for the parties at each hearing; but they allow the chair to regulate that and not exclude other voices. I cannot emphasise enough that due process is exceptionally important.
3.15 pm
Lord Clinton-Davis: Will the commission be able to extend the period of consultation where due notice is given? I am thinking of illness or other good reasons interceding.
Lord Wallace of Tankerness: My Lords, in order to give the Boundary Commissions a clear direction on this, we have indicated that there will be a maximum of two days. I do not think that anything would prevent a postponement of two days. We are giving the commissions a degree of flexibility, but the period will be a maximum of two days to make it clear that the hearings cannot go on and on. They are intended to be public engagement, not lengthy inquiry hearings.
In response also to the point made by the noble Lord, Lord Lipsey, it is open to the commissions to set clear procedures for the hearings to ensure consistency. However, the chair will be able to ensure that the procedure for the hearings can adapt to local or unexpected circumstances. This balance of discretion for the commissions and the clear powers for the chair set out in legislation makes the procedures robust against judicial review.
Let us not forget that the Boundary Commissions are each chaired by a High Court judge-or, rather, they are chaired by the Speaker, but the deputy chairs will be High Court judges or their equivalent. I have no doubt whatever that sensitivity to due process will
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We will no doubt hear arguments about the importance or otherwise of legal professionals being involved in chairing hearings. The commissions will have absolute discretion to appoint individuals who may or may not be legally qualified, and we have tabled an amendment to broaden the purposes for which assistant commissioners may be engaged. If the commissions consider that there is merit in using a suitably legally qualified person to chair the hearings-and we recognise that a legal skill set may well be advantageous-it is open to them to do so. However, if there are other individuals, such as senior public servants or commission employees, who are equally able to chair these proceedings that are designed to engage the public, there is no way in which they should be disqualified from doing so-indeed, they should be allowed to do so.
It is worth considering that the Parliamentary Constituencies Act 1986 makes no provision that the existing inquiries must be chaired by a legally qualified person, or indeed be involved in any of the elaborate processes that have grown up around these inquiries. What that legislation fails to do-a failing that our proposals address-is to make the purpose of a hearing sufficiently clear. The result is that the commissions are exposed and inquiries are no longer about people having their say but about exhaustive legal arguments designed to avoid a judicial review.
I expect that we will hear also that an oral stage requires a chair who is independent from the commissions, and who must produce a lengthy deliberative report. The Government do not accept this premise. The commissions themselves are independent, so there is no need for further separation between a commission and the arguments being put forward. The representations made at the hearings will be taken into consideration by the commissions-the amendment requires them to do it-and it will be for them to consider how best to do this. Weighing the representations made in writing, and those put in person at hearings, against all the other factors in the legislation, and against the proposals made across the regions, is the point of having a Boundary Commission. We do not require a further intermediate step.
We propose something that is culturally different from what has gone before. I note the amendments to the amendment that have been tabled, and I am grateful for the dialogue that I have had with the noble and learned Baroness, Lady Scotland. However, at the end of the day it boils down to a difference in
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Lord Rooker: I agree with much of what the Minister says, but if we are going to have a real culture change, it will be no good starting at 10.30 am and finishing at 3:30 pm, which is what the old culture does. If we are down to two days, let us have two real working days so that we have genuine participation even in the truncated time that I think is too short; I suggested five days. The new culture will be no good on the timescales that operated in the past.
Lord Wallace of Tankerness: I will not go down the road of wondering who the timescale was intended to suit. It is clear that Boundary Commissions have discretion in their proceedings. The comment made by the noble Lord, Lord Rooker, is very fair. We want to make sure that the time is best used and that people whose work patterns do not necessarily fit a 10.30 am to 3.30 pm programme have the opportunity to exercise their discretion, and that people have the maximum number of opportunities to contribute.
Lord Hamilton of Epsom: Perhaps my noble and learned friend would agree that the answer to this is not to have members of the legal profession chairing the inquiries.
Lord Wallace of Tankerness: My noble friend perhaps articulated the point that I was hinting at.
The government amendments complete the task of putting the public at the heart of the process, and of delivering effective public engagement with a clear but proportionate role for political parties. The complementary amendment on a counter-representations stage, suggested in Committee by the noble Lord, Lord Lipsey, will allow for the effective scrutiny of the arguments and proposals of others. People who, with the best will in the world, may not be able to attend a public hearing will still be able to make counterproposals in writing.
Also, importantly, this will be achieved on a timescale that will allow for up-to-date boundaries to be in place by the 2015 general election, and during each Parliament thereafter. This will give effect to a key principle underpinning the Bill: fair and equally weighted votes throughout the UK. The amendments respond to the spirit that has been expressed in many of our debates about the public having the opportunity to have their say, without adopting an unduly legalistic view that can exclude the public. I beg to move the amendment standing in the name of my noble friend Lord McNally.
The Lord Speaker (Baroness Hayman): I have to inform the House that if this amendment is agreed to, I cannot call Amendments 27H to 27K inclusive for reason of pre-emption.
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Lord Falconer of Thoroton: My Lords, I propose a number of amendments to those proposed by the noble and learned Lord, Lord Wallace of Tankerness, on behalf of the Government. At the heart of the noble and learned Lord's proposals is the introduction of a process which, as he accepts, is not in any sense an inquiry but is intended to enable the public to make representations about any proposals regarding boundary changes with which the hearing is concerned.
As I understand the Government's proposal, it will be open to individuals to make oral representations. A chair will be present to govern the proceedings-presumably to determine the order in which people speak; perhaps to determine whether what they say properly relates to the proposals; and also to determine how long they speak to ensure that everyone has an opportunity to do so. A record will be kept of what is said and that will be put into a public place for people to see. It is not envisaged that there will be any resolution or that the chair will play any part in determining any issues that arise on the wisdom or otherwise of the boundary proposals. However, it is envisaged that the oral hearing process should take place before the conclusion of the written representation period, which I think ends at week 12, with the oral hearing process taking place between weeks five and 10. Therefore, what the Government propose is not in any sense an inquiry and resolution of issues in the form of a report making recommendations to the Boundary Commission; it is simply an opportunity to make oral representations, which are recorded and then made public.
Previously, the Government proposed to ban the Boundary Commission from holding public inquiries altogether. They have not moved from that position but they have introduced the public hearing process that I have described. The noble and learned Lord, Lord Wallace of Tankerness, expresses his opposition to public inquiries primarily because he is concerned that an open-ended process of public inquiries could cause a fatal delay to the timetable for completing the next boundary review before the intended 2015 general election. He was also concerned that political parties would be too involved. For that reason, the Government have reduced the process to one of only a hearing.
It is important to hear what those who have experience of this situation have said. Robin Gray, former chairman of the Boundary Commission for England, said concerning the proposals in the Bill:
"Particularly with this first round ... there is a real need for public inquiries particularly to enable those who are interested, political parties and others, to actually argue this through because these are going to be big changes".
Ron Johnston, as the noble and learned Lord fairly said, is normally an opponent of public inquiries. In this area, he said that,
- "you are drawing a totally new map with new constituencies and nearly everything will be different ... local people are going to be concerned because suddenly the pattern of representation is going to be very different from what they have been used to for a long time".
Noble Lords will form their own view of the extent to which they have received representations from members of the public about, for example, the Isle of Wight, Cornwall, Anglesey and a number of other issues relating to the proposed boundary changes.
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Our initial proposals to reinstate public inquiries in their current form did not address the noble and learned Lord's concerns about the prospect of delay or the fact that there needed to be streamlined public inquiries. We agree with him that there needs to be proper control, as efficient focus as possible and a real focus on real issues. We listened to what the Government said and moved to a new amendment, which allowed for public inquiries but with significant new limitations that would give the Boundary Commissions discretion over whether an inquiry was held. It also placed a cap on the length of time that inquiries could take. During the debate on our amendment, the noble and learned Lord, Lord Woolf, who, I am happy to see, is in his place, made an important intervention. He pointed out:
"If there is no provision for an inquiry"-
I interpose that there is no doubt that by "inquiry" he meant a proper inquiry, not the hearing process to which the noble and learned Lord, Lord Wallace, refers-
- "I anticipate that there will inevitably be an increase in applications for judicial review".-[Official Report, 26/1/11; col. 1067.]
The Minister, the noble and learned Lord, Lord Wallace of Tankerness, responded favourably to that first debate, which was on our amendments. He said:
"It is not a fundamental principle of the Bill that there should be no oral inquiries".-[Official Report, 26/1/11; col. 1070.]
Although he did not mention it at that point, when he said "inquiries", I think he meant the sort of hearings that he has been referring to.
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After we had put down our amendment, and after that date, the noble Baroness, Lady D'Souza, then moved, from the Cross Benches, a revised version of our amendment, which placed even tighter limits on the time that inquiries would be allowed to take and altered the drafting on the discretion to seek to insulate the process from the threat of judicial review. In moving that amendment, the noble Baroness said:
"The question of oral public inquiry remains pivotal ... My own feeling-my instinct, even-is that we need further clarification at this stage from the Minister on whether the Government can accept oral public inquiry in the Bill".
For our part, we responded to the spirit of compromise in which the amendment was moved, and made clear that we were prepared to accept the scheme proposed by the noble Baroness, Lady D'Souza, which was also tabled by the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick.
During the debate on the amendment moved by the noble Baroness, a number of very important contributions were made, including a telling intervention from the noble Lord, Lord Pannick, who said:
"The Boundary Commission process, including public inquiries, has served this country very well. It has maintained public confidence by a transparent process which has avoided even the suspicion of gerrymandering which blights so many other democratic countries. The Boundary Commission needs to retain some form of discretion to call for an inquiry, at least in those cases where it considers that it is necessary, with appropriate safeguards. I am sure that improvements can be made to the statutory scheme to promote efficiency and reduce delays but there really is no case for abolition".-[Official Report, 31/1/11; cols. 1217-18.]
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The response of the noble and learned Lord, Lord Wallace of Tankerness, left me with the impression that the Government were persuaded by the principle. He said:
"We remain very happy to discuss the detail of how these proposals will operate-obviously with the noble Baroness who has proposed her amendment and with the official Opposition".-[Official Report, 31/1/11; col. 1223.]
As it happens, the amendments were not discussed with the Opposition. The amendment makes progress but is disappointing because of this great hole in its heart.
As I have indicated, the sequencing is wrong. The whole purpose of inquiries to which written and oral evidence can be submitted is that they should occur after the initial period of written representation so that they deal with the issues that there may be in relation to a particular boundary dispute. The inquiries, where they are held, should provide an opportunity for representations to be made, but they should also provide an opportunity for those issues to be examined, to hear people respond at the hearing to what others say, to make arguments with or without lawyers as they or the chair of the inquiry sees fit and to reach some kind of conclusion in the form of a report. The government amendment fails to specify who will chair an inquiry-or "hearing", as they describe it-and it fails to say how that person's independence will be guaranteed. Above all, it fails to say whether the chair will have the power to make recommendations. However, the noble and learned Lord has made it clear that that is not his or her role.
The one thing that the government amendment is unfailingly clear about is that, although hearings will cover a whole region, they should not last more than two days. In very many cases, that might be sufficient, depending on what the issues are in a region; in others, however, it will not.
Our amendments are intended to correct those flaws. In an effort to reach a compromise, we do so while retaining much of the structure included in the government amendment. Our amendment also respects the fundamental concern of the Government, which is to ensure that the inclusion of a right to public inquiries does not prevent a boundary review before 2015. Our amendments to the Government's scheme cover roughly the same time period in total as the Government's scheme. We reduce the time limit on the initial written consultation phase from 12 to six weeks; stipulate that public inquiries cannot last for more than four months-by that, I do not mean the hearing but the process-after the close of the initial written consultation period; and reduce the period when written representations may be made after any revised proposals from eight to four weeks. Because public inquiries allow for objections and counterproposals to be made, we would remove the four-week secondary consultation period that the government amendment inserts.
We propose an identification of the issues for the written representations, an inquiry that must be concluded within four months from the closure for the first written representations, a report with recommendations from the chair or assistant chair of the inquiry and then an opportunity for people to comment on it-thereby
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Lord Lloyd of Berwick: Apart from the question of timing and the chairmanship of an inquiry, or whatever we call it, what is the substantive difference between a public inquiry and what is proposed, a public hearing? Can the noble and learned Lord summarise the substantive differences for my sake?
Lord Falconer of Thoroton: I am grateful to the noble and learned Lord for that opportunity. As I am sure that the noble and learned Lord will confirm, a public hearing simply involves an opportunity for people to come to a room-a town hall or a village hall-to make or read a statement. It is recorded, and that is it. The next person then stands up and makes a statement, and then he or she sits down. It goes on like that. A record is kept of what is said, but there is no resolution of any issues. The statement of what is said is then, I assume, placed on the web so that everybody can see what was said
A public inquiry would involve Mr X saying, "I think that the boundaries should be here", and Mr Y saying, "I think that the boundaries should be there". Then the chair-having heard all the representations that people want to make, determining what the process is, having heard what everybody has said-says, "I recommend to the Boundary Commission that it should draw the boundaries there". So it is a process where issues are identified and some resolution is given. That is the fundamental difference.
Lord Thomas of Gresford: That is the weakness in the position at present and as outlined by the noble and learned Lord: there are two recommendations. There is the recommendation from the chairman of the inquiry and then the Boundary Commission makes a recommendation to the Secretary of State as to where the boundary should be. What is the need for a double decision?
Lord Falconer of Thoroton: The effect of the Bill and all previous Bills is that the Boundary Commission's conclusions are in practice final. Yes, they have to be given to the Secretary of State, but the Bill-in my view, correctly-takes away any discretion from the Secretary of State to do anything other than lay them before Parliament, so, in practice, they are final.
The Boundary Commission does not come in any shape or form from the locality; it does not hear local representations; and it does not hear argument about where the boundaries should be. It is fundamentally different; it is carrying out an administrative process.
Lord Thomas of Gresford: Is the difference, therefore, that the Boundary Commission will be the body that considers all representations, whether oral or written? Will this not be more desirable than it simply acting administratively, as the noble and learned Lord says, upon the recommendation of somebody else?
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Lord Falconer of Thoroton: Absolutely not, because where, as a result of the representations made at written stage, an issue is identified that would be assisted by hearing people locally, not only do you get local engagement-which everybody thinks is important-you also focus on a particular issue with somebody hearing and resolving the arguments. Of all the people in the world who would think that that was a worthwhile process, I can think of nobody who would regard it as more so than the noble Lord, Lord Thomas of Gresford, who in all my years in the House has upheld every single aspect of such a process.
Lord Thomas of Gresford: It is important that the Boundary Commission, which has an overall view, should be the body that takes the decision and makes the final recommendation.
Lord Falconer of Thoroton: I apologise for not making this clear. It will, but with the benefit of the recommendation made by the chair after a local inquiry.
Lord Phillips of Sudbury: The noble Lord has been extraordinarily patient, but I am sure that he wants us all to understand-and I may not be the only person in the Chamber who does not from his explanation-whether cross-examination will be allowed.
Lord Falconer of Thoroton: It will be entirely a matter for the chair, probably operating in accordance with guidance given by the assistant or deputy chairs of the Boundary Commission. We will encourage a process that is streamlined and non-formal. If cross-examination would help let it be so, if it would not let it be a matter for the assistant chair hearing the inquiry on the day. I trust the right people to make the right decisions on how to get to a conclusion as shortly, as economically and as appropriately as possible.
In our amendment we propose that the chair of such a public inquiry must be a legally qualified assistant commissioner, appointed by the chair of the Boundary Commission, with the power to make recommendations. We say this must be a legally qualified person because they will have experience of ensuring short, sharp hearings, which I think is what everybody wants. Without that, the system of hearings put forward by the Government is little more than a public reading of statements. It will lead, I am sure, to a sense of frustration because there is no response of any detailed sort.
The issue of public inquiries is one of the most central concerns we have with the Bill. The Government's initial response to the debates we had on this matter was pivotal in breaking the deadlock in Committee. We have understood that they would respond favourably to this and other amendments on public enquiries; it matters hugely. However, we have put the proposal forward in a spirit of compromise. We have sought at every stage to listen to what the Government have said.
Lord Campbell of Alloway: I have not taken much active interest in this debate but I have read all the official reports. I cannot understand why one has to go into this rather complex, devious regime and not leave
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Lord Falconer of Thoroton: I have considerable sympathy with that view. If the Bill had said, "Let there be public inquiries and let the chair or the deputy chair of the Boundary Commission determine the right course and whether or not there should be a public inquiry", I anticipate and understand that the Government would have been concerned about the delay that that might cause to the timing of the boundary review. We are prepared to enter into a scheme, whose structure is in effect proposed by the Government, that does its level best to ensure that the process will be over by 30 October 2013, in accordance with the fresh proposals now being made, so that the Government's timescale would be met. That is why the Government have taken this approach.
In an attempt to reach a conclusion, the Government's amendment, as amended by ours, would do what your Lordships' House does very well-namely, improve the Bill in a way which is both a sensible solution and a product of compromise and good sense. I beg to move.
Lord Woolf: My Lords, the Government have moved a long way but, in my view, they have not moved far enough. Indeed, some of what they propose is not constructive in the way they intend. The Government's proposals, if coupled with those put forward by the noble and learned Lord, Lord Falconer, would produce a much better result. This is very important for the public because the scale of the changes involved means that the public should have a proper hearing.
I am not surprised that the noble and learned Lord, Lord Lloyd of Berwick, asked what is the difference between a public hearing and a public inquiry. Normally a proper hearing involves the kind of matters to which the noble and learned Lord, Lord Falconer, referred. It is no use having a hearing if it does not serve its purpose. The great defect in the Government's proposals is that they arrange a hearing following which the person who has to make the decision will not have an opportunity of having any more than a record of what has occurred in the hearing.
In times out of number within our legal system-whether it be in the form of a planning or any other inquiry-a hearing has resulted in an opportunity to be heard, which is then reported upon by a neutral and independent person, normally someone with skill and experience in the area in question. Here it is quite clear that, in the end, the Boundary Commission will have to make the decision and, on both proposals, its decision will be coloured by what has happened at the public hearing. However, on the Government's case, the Boundary Commission will have only a written record. What is the purpose of having an oral hearing if there is going to be no more than that?
What should happen-I submit that this is what is intended to happen in the amendment of the noble and learned Lord, Lord Falconer-is that there should be included in the matters that go before the Boundary
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Those who have had the task of looking at many inspectors' reports will know how a decision that is to be made by the Secretary of State is assisted by an inspector's report. I anticipate that the chairman will say, "So and so was contended on behalf of X, but Y said so and so, which the Boundary Commission may think is the stronger argument". The chairman might say, "The Boundary Commission may submit that this point or that point was not properly considered by X in giving his evidence".
A multitude of situations could arise whereby that process could properly be dealt with by a report by the person who actually conducted the hearing. If that was allowed, you would avoid the frustration felt on the part of those appearing before the chairman that their words are apparently disappearing into the ether with no conclusion being given on them. I strongly urge the Government to think again objectively about what is proposed to avoid that situation, especially if they are concerned about delay.
The Boundary Commission can be given the task of reaching its final decision within a specific time. If, as the noble Lord, Lord Campbell of Alloway, suggested, it is given the power to control the chairman, it can ensure that there will be no undue delay, which would have the undesirable results on which the Government speculate. An important point is that there are provisions in the Government's proposal for questions to be asked of those making oral statements to the hearing-I refer to paragraph 8 of new Schedule 2A, proposed in Amendment 39, where that is made clear. That comes very close to the procedure which would normally take place before someone such as the chairman at a public hearing, as that is normally known. Therefore, you have questioning only under the control of the chairman. Answers are given and you have-and should have-the views of the chairman on what has occurred. If that is not done, a very strange animal indeed will be produced.
Lord Thomas of Gresford: Is the noble and learned Lord suggesting that the chairman should have a power to comment, or is he suggesting that the chairman should recommend, which is really where the issue lies?
Lord Woolf: It would be a preliminary recommendation to be considered by the Boundary Commission, which would make the final recommendation. The only other alternative is that the hearing should take place before the Boundary Commission and that is obviously not a practical proposition. I am sorry that I have obviously not persuaded the noble Lord, Lord Thomas, on this.
Lord Thomas of Gresford: I have been at Boundary Commission hearings, although I do not recall a judicial review. Does not the noble and learned Lord's suggestion
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Lord Woolf: I certainly cannot say that in no circumstances could the chairman's recommendations be the subject of judicial review, but there is a greater risk of judicial review if you do not allow the chairman to put before the Boundary Commission the information that it will need to make a decision. I cannot anticipate what a judge would say on an application for judicial review in all cases, but, in the majority of cases, I think that the possibility of judicial review at that stage would be very slim.
As the noble Lord knows well from his experience of judicial review, what is normally judicially reviewed is the final recommendation. A preliminary recommendation made by the chairman would not be the subject of judicial review, because if it was criticised, as it would have to be, as not being in accordance of the legal requirements, the answer would be, "Well, what are you worrying about? The Boundary Commission will put that right, and, if they don't, you can come back to us then". You do not come, at this first stage, to seek judicial review of what is no more than a preliminary recommendation. I think that that is the trite law which the noble Lord would expect the court to follow on applications for judicial review.
Let us have sensible provisions; let us give the widest possible discretion to the Boundary Commission; let us have the ability to go that one step further than the Government's proposals so far and enable the person who chairs the hearing to make a preliminary recommendation. Of course, he may decide not to make a recommendation, but he should not be prevented from doing so. He may think that the situation is sufficient. I would therefore urge flexibility.
In that regard, could I also urge the Government to reconsider the requirement that there should be at least two public hearings? There may be situations where to have public hearings will serve no real purpose. That should be a matter of which the Boundary Commission is again in charge.
Lord Campbell of Alloway: I am grateful to the noble and learned Lord for his helpful clarification, but how can judicial review, which is of general application, have any specific relationship with this particular question? Acceptance of judicial review is a matter always for the discretion of the court. You have no right to it, unless the court accepts your application.
Lord Woolf: The noble Lord, Lord Campbell, is of course absolutely right that the matter is in the hands of the judge who hears the application, but he will forgive me if I do not from these Benches seek to give my opinion as to what a judge can do and should do other than in the most cautious of terms. I have tried to assist the House by indicating that, from my experience, it is unlikely that the fears expressed by the noble Lord, Lord Thomas, would have any basis in reality.
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Lord Marks of Henley-on-Thames: My Lords, the government amendments give expression to a widespread feeling in the House, which I share, that there should
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The system proposed by the government amendments achieves that in a way that is proportionate, reasonably economical and reasonably expeditious. It avoids effectively dividing the decision-making process between the recommendation of the chair of a public inquiry and the final recommendation of the Boundary Commission itself. The amendments allow for two-day hearings across the whole country, which the Boundary Commission must take into account. They have at their heart a trust in the Boundary Commission and its decision-making ability that is, in our submission, in no way misplaced.
The proposals offer a transparent system with the public having a genuine and adequate chance to participate at every stage, whereas the amendments put forward by the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Bach, would, I suggest, revert to a cumbersome system of public inquiries that has often led to the whole system becoming bogged down. Those inquiries may be as long as four months. That is not expeditious.
Further, in answer to the point made by the noble and learned Lord, Lord Lloyd of Berwick-one which, with the greatest of respect, the noble and learned Lord, Lord Woolf, did not adequately deal with in his speech-they open up a dual decision-making process with different and distinct decision-making stages. I give way to the noble Lord.
Lord Foulkes of Cumnock: My Lords, I am sorry to interrupt but I have taken part in a number of hearings in Ayrshire. In one case, the assistant commissioner recommended something which was accepted by the Boundary Commission; and in another a different commissioner recommended something that was not accepted by it. The decision of the Boundary Commission is always final.
Lord Marks of Henley-on-Thames: My Lords, that is precisely the point. The intervention of the noble Lord illustrates that the Boundary Commission makes decisions, taking into account recommendations of the commissioners that may be inconsistent, which negates the importance or effect of the public inquiries. Amendment 43 empowers the assistant commissioner to,
As the noble Lord, Lord Foulkes, explains, there is no explanation anywhere of how that would work or what the precise status or effect of the recommendation would be. Presumably, as he says, the Boundary Commission would have to take that into account but that would-again with respect to the noble and learned Lord, Lord Woolf-open up the public hearings or inquiries to judicial review, possibly not as to the content of the recommendation but as to the procedure adopted before the public inquiry.
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Then there would be the difficulty that any departure by the Boundary Commission from the recommendation from a public inquiry would be challengeable as irrational. That itself would be fruitful grounds for judicial review hearings. The amendment does not state how these problems would be dealt with. I give way.
Lord Campbell of Alloway: My Lords, could the noble Lord explain what on earth a public inquiry subject to judicial review means in practice in the courts?
Lord Marks of Henley-on-Thames: My Lords, what it means is that there is a difficult and delaying process at that stage because there is the interposition of the public inquiry; that is, with a public hearing as proposed by the Government, there is a hearing which is essentially, as the noble and learned Lord, Lord Woolf, explained, an evidence- and argument-gathering procedure, orally in public, prior to a decision-making process by the Boundary Commission which, as I say, we should trust.
The government amendments quite properly exclude this unhappy intermediate stage in the decision-making process. Furthermore, the cost of the public inquiry proposed by the noble and learned Lord, Lord Falconer of Thoroton, is considerable. It cuts out a substantial and essential element of transparency from the system proposed by the government amendments. The opposition amendments would remove the requirement to publish the records of public hearings to enable informed public comment.
In terms of timing, the proposals of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Bach, would total 26 weeks in cases where there were proposals to revise recommendations-six for written submissions, 16 or 17 for public inquiries and then four for further inquiries. The proposals of the government amendments are much shorter overall-12 weeks for written submissions and public hearings, four for a period of secondary consultation and eight if revisions are proposed: so, 16 weeks rising to a maximum of 24 weeks. However, the amendments of the noble and learned Lord, Lord Falconer, keep his timetable down to 26 or 27 weeks only by cutting from 12 weeks to six the period for public written submissions; by cutting entirely the four-week secondary consultation period proposed by the Government and by allowing only four weeks instead of eight for the public to make written representations on any revised proposals.
At the heart of our position on these amendments is the notion that members of the public are more likely to make written representations than they are to attend long public inquiries, which would largely be the forum of the political parties. The amendments proposed by the Opposition favour a return to a long, cumbersome, legalistic and expensive decision-making process of public inquiries going before the Boundary Commission's recommendation, a process whose status is entirely uncertain because its effect on the final decision is not clear.
Finally, an entirely lawyerly point, Amendment 27GH of the noble and learned Lord, Lord Falconer, inserts a reference to subsection (4)(b) of government Amendment 27G which, by Amendment 27GD, they have entirely
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Lord Lloyd of Berwick: Experience shows that where two or three lawyers are gathered together one is sure to disagree. I entirely agree with every word that has fallen from the noble Lord, Lord Marks, which I am afraid inevitably means that, with great respect, I venture to disagree with the noble and learned Lord, Lord Woolf. He suggested that the advantage of his proposals was flexibility. I suggest that the disadvantage is an absence of simplicity. I can see no possible advantage in having a double decision process in a matter such as this. On the face of it, one would think it must increase the likelihood of an application for judicial review. In any event, the question should not be decided simply by that-it was a strong argument at one stage. But now we have before us not the original amendment proposed by the Convenor, the noble Baroness, Lady D'Souza, which in its way was a very good amendment, but an amendment from the Government containing everything that was in that amendment, which, to my mind, is essential. A public inquiry as such is not essential. A public hearing is, and that is what is promised.
Lord Pannick: My Lords, I share the Government's objective here, which is to make this process more efficient. At the moment it is not efficient. It is too slow, too cumbersome and there are too many lawyers involved. I therefore share the Government's objective. However, I also share the concerns so eloquently expressed by the noble and learned Lord, Lord Woolf. The Government will abolish any effective inquiry and will introduce a procedure which will ensure that the decision-maker-and here I say to the noble Lord, Lord Marks, and the noble and learned Lord, Lord Lloyd of Berwick, that there is only one decision-maker on the opposition amendment: the Boundary Commission-does not hear the oral representations that have been made. The person who does hear those oral representations has no role in communicating to the decision-maker any advice on what he or she thinks of what he or she has just heard. It is absolutely inevitable that the introduction of such a procedure will exacerbate rather than diminish the sense of grievance that has led people to make representations in the first place.
Lord Martin of Springburn: When the noble Lord mentions the Government's proposals, is it the case that those proposals will not allow cross-examination at the inquiry?
Lord Pannick: As I understand it, that is the position. The opposition amendments will leave that to the discretion of the person who is hearing the representations, which seems to me right and proper. The proposal from
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Lord Thomas of Gresford: Does the noble Lord not agree that the person to whom he refers, the person who would be aggrieved, would prefer that their contribution goes directly to the decision-maker and is not filtered in an intermediate stage by the chairman, who may have all sorts of views of his own and may colour the way in which that person wants his representations to be heard?
Lord Pannick: I would say to the noble Lord, Lord Thomas of Gresford, that in my experience it is most unusual indeed to arrange for oral representations, and let us not forget that this is what the Government are rightly proposing, in which the person hearing them then has no role, not even an advisory one. It is my experience in all areas of the law, and I hope that it is the experience of the noble Lord as well, that if you give people a fair hearing and then a reasoned conclusion at the end of it, even if it is only advisory in nature, they are normally-not always-prepared to accept the result, however disappointing it may be. The Government's proposals, by contrast, will inevitably raise expectations which they cannot satisfy and which will inevitably frustrate and anger people, who will inevitably feel that this is a charade. On a matter as sensitive and important as constituency boundaries, it is vital for this House to maintain some genuine process of inquiry leading to a result, even if it is only advisory. Inquiries have contributed substantially to the confidence that all sections of the public now have in the process of boundary review.
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People have confidence in the fairness of the process. I cannot agree with the noble Lord, Lord Marks, that the cost of providing fairness in this vital area should deter us from what the Opposition suggest. Nor can I accept that there is any realistic prospect of judicial review here, which the noble Lord, Lord Thomas of Gresford, was concerned about. I respectfully agree with the noble and learned Lord, Lord Woolf. It is most unlikely-although one can never say never-that any court will entertain in this context a judicial review challenge to an advisory recommendation. The court would say, "Exhaust your remedy-your remedy is to wait until the Boundary Commission has formed its conclusion". The noble Lord, Lord Marks, is concerned that if the chairman gives advice with which the Boundary Commission does not agree, that might provoke a judicial review. Again, in this discretionary area, it is highly unlikely-although one can never say never-that such a judicial review should succeed. I take the view that the risks of people bringing judicial reviews are all the greater if you do not give them a proper, fair process.
Lord Thomas of Gresford: Would the noble Lord not agree that if the Boundary Commission failed to follow the recommendation of the first decision-maker-
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Lord Pannick: I am sorry, but I simply do not accept that. The noble Lord is very familiar with the general process of planning inquiries, when advice is regularly given that is not followed by the decision-maker. The courts are sophisticated enough to understand in this sensitive area that advice is not necessarily followed. The Boundary Commission is the decision-maker. If I were to go to the court tomorrow and rely on advice that the Boundary Commission had rejected, and if that were the basis of my judicial review, the case would not last very long, as I think the noble Lord knows.
Lord Thomas of Gresford: My Lords-
Lord Pannick: I have taken a number of interventions. This is Report, and I hope that the House will agree with me that it is appropriate that we proceed with this matter.
Even at this late stage, will the Minister and the Government please think again? They can make this process more efficient, but they should not abolish the inquiry, which is what they are in effect doing, as it serves a very valuable purpose.
Lord Faulks: My Lords, the noble and learned Lord, Lord Wallace of Tankerness, described this proposal as being culturally different from what had gone before. He is right in one sense, but I respectfully suggest that it is very much in line with the way in which a lot of procedures are developing. We are not obsessed by prolonged oral hearings with laborious cross-examination, dominated by lawyers-and here I must declare an interest as a member of that much maligned species. Rather, it is a sensible way of dealing with matters so that there can be full written representations followed by a public hearing. I think that the expression "public hearing" is an attractive one, as opposed to a "public inquiry", which sounds rather murky and obscure from the point of view of the public, for whose benefit it is supposed to be.
I hope very much that such a hearing will be "lawyer light". There is no need for the chair to be a lawyer; it might be better if they are not. What we require from the chair is someone who is capable of organising a hearing at which everyone who has a reasonable interest in a matter can have their interest properly heard and recorded. I accept the observation by the noble Lord, Lord Rooker, that there is no need to stick to strict court hours, and one hopes that the chair will allow a longer period as necessary.
We are talking about, I hope, an informal but thorough hearing. It allows what, as I understood it, the Opposition required-in effect, a day in court, an opportunity for people to say that they have said something as well as written something. This seems to be an extremely practical and fair solution, and I will support it.
Lord Rooker: I want to raise a point that only the noble Lord, Lord Pannick, has touched on. I speak as someone who was in the other place and went through
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On both of the boundary changes that we dealt with-I am speaking only about the evidence from the city of Birmingham-we as Members of Parliament took criticism from members of the public, churches and party members, and this applied to both major parties as we were very much a two-party city in those days. The criticism was that someone had come up from London who had never been there before and was redrawing boundaries and sticking this ward into the constituency when we wanted that one instead.
I remember one particular incident, at a public community meeting separate from the boundary inquiry, that I was able to quell. It was not a riot, but it was pretty bad. I said to people, "Look, we might disagree, but we don't even know this guy's name or his background. He's a lawyer, and he has chaired the meeting, but at least we've been able to put our case and argue the case with the Tory party". There was a major argument about a big ward, with 20,000 electors, going in. We were able to say to people, "We've had our day in court"-the very phrase that has just been used. We were able to say that we had argued the toss with our political opponents and that it had been done openly and transparently. Everyone accepted that. Whether we won or lost, it probably did not materially affect the political outcome, but it was thought that it might.
There are probably far more people interested in this change than there have been in previous boundary changes, for obvious reasons. It is important to be able to report back to the interested public and say that their case has been listened to; that they have been able to put up a challenge, because there will be political arguments on this; and that they might have lost, but it was done openly and fairly. However, I do not think that it will be seen to have been done fairly. No MP will be able to do what I did and say to constituents, "You were able to argue and challenge the opposing views. We lost, but it was done in the open, and that's the way that it is done in Britain". That is something to be regretted.
Lord Tyler: My Lords, I am encouraged by the noble Lord, Lord Rooker, to make a brief intervention, because I am not a lawyer. Until he spoke, everyone was speaking with huge legal experience.
I have a practical question that your Lordships' House needs to give some attention to. It seems to me that the danger is not successful judicial review-or any sort of legal challenge-rather, it is that all over the country the opportunity will be taken to try and delay the process, for reasons that we all understand, so that the changes will not be in place ready for the 2015 election. I have appeared at inquiries and before commissions-unpaid, of course, as I was not a lawyer. I was reminded of this by the noble Lord, Lord Rooker. Imagine the circumstances when a number of MPs who see their seats being changed do not necessarily think that they could be successful at judicial review
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I understand what the noble Lord, Lord Pannick, is saying. I understand what other lawyers are saying. My fear is simply that this process will be undermined not by successful judicial review but by attempts to try and delay the process. If that is the game that we have to foresee, then your Lordships' House will be blamed for delaying an important process that will give equality of votes to a lot of our fellow citizens.
Lord Pannick: Does the noble Lord understand that no judicial review may be brought without the leave of the court? Does he understand that the courts are highly experienced in hearing speedily-by which I mean within days if necessary or within weeks-any case that is urgent, as these cases, if they were brought, would clearly be?
Lord Campbell of Alloway: Very briefly, my Lords, I got involved in this affair with a lot of other members of the Bar and I have to say where I stand. I totally support the legal analysis of the noble Lord, Lord Pannick, who is totally correct. Of course, it puts me in a very odd position because I am a Conservative and part of the coalition, but I cannot help that. I know that what the noble Lord said is right.
Lord Thomas of Gresford: I intervene very briefly because the noble Lord, Lord Rooker, reminded me of appearing in the planning inquiry in mid-Wales on the drowning of Dulais valley, which was proposed by his council, Birmingham council. We were concerned because the Secretary of State for Wales, Lord Cledwyn, was to take the decision, but the person who heard the inquiry came up from London; "Who was he?" and "What does he know about Wales?". These were real concerns that affected the people who I was representing-for nothing, if it matters-in that particular inquiry. We would much have preferred to put our views before the Secretary of State for Wales directly-to the decision-maker-who we knew knew something about the issues. As it happened, the inspector held in our favour and was upheld by Lord Cledwyn, who made the final decision and announced that no valley in Wales would ever be drowned again.
That is an example of wishing to make representations not to the unknown person from London but to the real decision-maker. The government amendment would enable all the representations and the evidence given by objectors to be put in their raw condition to the boundary commissioners, without any intervening stage.
Lord Phillips of Sudbury: My Lords, while there has been a lot of anxiety in this House over recent weeks about what we are doing here, the debate that we have had on this very difficult amendment has shown just what an extraordinary resource of experience this place can provide.
I have three points to make. First, I would be most grateful if the Minister, in summing up this debate, could answer the forceful point made by the noble and learned Lord, Lord Falconer, that by having the public inquiry when he plans to have it-that is to say, after
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Secondly, I was much struck by what my noble friend Lord Marks said about the virtue of the timetable proposed by the Government, which gives a full 12 weeks for written submissions, until he rightly said that most members of the public will provide their opinions by that route and will not appear at the oral hearing.
My final point is to assist the noble Lord, Lord Martin, who asked the noble Lord, Lord Pannick, whether there could be cross-examination under the Government's system, if I can call it that. The answer to that is yes. Amendment 39 in the name of the noble Lord, Lord McNally, specifically prescribes that cross-examination will be in the gift of the person conducting the inquiry under the proposals being put forward by my noble and learned friend, Lord Wallace of Tankerness.
4.30 pm
Lord Martin of Springburn: My Lords-
Lord Shutt of Greetland: My Lords, I think an intervention is required. The Report rules are such that Members are entitled to speak once to an amendment. There is a problem when a speech is an intervention or an intervention is a speech. However, it would be helpful if people were a bit sparing with their interventions. People ought to realise that they have one turn.
Lord Martin of Springburn: My Lords, if the rule is that my intervention denies me the right to speak, I will sit down. It was a very brief intervention and it was for information. I understand the agitation of the Liberal Democrat Whip, but the Liberal Democrats were no slouches in speaking, so I wonder whether I might make a brief speech. If the noble Lord is saying that I cannot do it-
Lord Shutt of Greetland: The noble Lord may go on.
Lord Martin of Springburn: I thank the noble Lord; I am obliged. I intervened on cross-examination but it was not my interest to worry about cross-examination by solicitors or QCs in an inquiry. Like the noble Lord, Lord Rooker, I have been to three inquiries, but they were in the city of Glasgow. They were very fair indeed. People from all walks of life turned up to put their case. Sometimes people would go along and say that they represented several community organisations. No lawyer present would have known how to test the case that was being put-that they belonged to those community organisations-but someone who lived in the community would. It was lay people who sometimes brought out in cross-examination that perhaps they were not, and could not claim that they were, truly representative of the community councils or residents' associations as they claimed to be. Those lay people had local knowledge.
It is easy to talk about splitting up wards and putting one ward into another. However, often the argument for moving a ward from one constituency into another is based on where the local facilities, such
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Lord Wallace of Tankerness: My Lords, I thank all noble Lords and noble and learned Lords who have participated in this important debate. It has been a good and helpful debate, with views forcefully expressed but set out in a measured way. There is some agreement that we want to find the best way to achieve effective consultation on Boundary Commission proposals. However, it has also become clear-I made this point when I opened the debate and it was reflected on by my noble friend Lord Faulks-that the issue very much represents a choice of culture. Will we have what is essentially the old system of the local public inquiry-albeit with some timetable improvements; and I acknowledge the efforts made there-or a change of culture towards the public hearings proposed in the Government's amendment? My noble friend Lord Faulks indicated that our proposal goes with the grain of making arrangements for similar matters to be dealt with.
The process we have set out combines written representations with a new public hearing stage aimed at providing for real public engagement, and involves a counter-representation stage to allow for scrutiny. We believe that that adds up to a comprehensive and rigorous process which learns the lessons of previous reviews and allows us to achieve the key principles of the Bill, whereby constituencies will become more equal and fair and their representation in the other place will be reflected by the time of the 2015 election.
It was suggested by the noble and learned Lords, Lord Falconer of Thoroton and Lord Woolf, that the representations made at an oral hearing would disappear into the ether. However, it is it is important to recall that not only after the end of the period will there still be an opportunity for follow-up representations, but, in response to amendments in Committee from the noble Lord, Lord Lipsey, there will be an opportunity for counter-representations to be made. It is a requirement set out in the amendment that the Boundary Commission shall give consideration not only to the written representations and counter-representations, but to the record of those who engage in the oral hearings.
The process that we propose is a considerable departure from the original proposals in the Bill. That was acknowledged by the noble and learned Lord, Lord Woolf. The Government have listened to the reasonable concerns on the importance of public engagement, not least at the first review under the new rules. We have listened to the argument that our process could be strengthened if there was an opportunity for the scrutiny of arguments put forward by others. We have shown that we are willing to move in the interests of a better outcome, but not at the cost of the key principles of the Bill. That cost would include delays that could undermine those principles.
The opposition proposals-whether those of the noble and learned Lord, Lord Falconer of Thoroton, or the suggested changes to the Government's
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Even the noble and learned Lords among us can imagine that that process is unlikely to engage the general public at large. The work of academics who have researched these issues in depth means that we do not have to imagine what that would mean, because the evidence is in their reports. An in-depth study by Ron Johnston, David Rossiter and Charles Pattie in 2008 stated:
"It would be a major error to assume that the consultation process largely involves the general public having its say on the recommendations. The entire procedure is dominated-in influence and outcome if not in terms of the numbers of representations and petitions (many stimulated by the main actors)-by the political parties".
There has been a flavour of the political parties' heavy engagement.
It has also been said that somehow or other the public inquiry system assuages pent-up local demand. Before I came to the Chamber this afternoon, I looked at the last Boundary Commission review of the constituencies for the Scottish Parliament. In the case of East Lothian, Midlothian and the Scottish Borders, the inquiry process, which led to a recommendation from the reporter, who I think was Sheriff Edward Bowen QC, was completely and utterly dismissed by the Boundary Commission. I am not sure what that would do to promote public confidence in the system proposed by the Opposition.
Lord Foulkes of Cumnock: Will the Minister confirm that there was no application for a judicial hearing in relation to that? Everyone accepted it.
4.45 pm
Lord Wallace of Tankerness: I am not aware that there was a judicial review. The noble Lord said that everyone accepted it. He should consult my noble friend Lord Steel of Aikwood about how effective he thinks the present public inquiry system is.
The role of the chair has been much debated. It was said that the chair should be legally qualified in order to provide clarity and consistency of practice, and to make the process resistant to judicial review. It was claimed also that there must be report back. We have just heard about the pros and cons of that. The Government do not agree. The hearings that we propose are about giving the public and the political parties a chance to have their say as part of the consultation process. The legislation provides that a commission shall take into account the representations made at hearings, as it does the written submissions.
Another of my concerns about the opposition proposals is that the value of the written submissions appears to be somewhat relegated. We propose that
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It is important to remember that the commissions are independent. They exist to weigh the arguments. It will be for them to decide how best to do that. There is no need to interpose an independent lawyer between the commissions and the arguments in order to allow the public to have their say. The commissions will be chaired by a High Court judge or equivalent and will be very sensitive to those issues. It will be open to them to appoint the chair that they think best for the job. I will not detain the House at the moment by speaking to Amendment 18E in this group, save to say that we have tabled it to broaden the purposes for which assistant commissioners may be engaged.
The Opposition claim that the process is flawed because the hearings will take place at a point in the process before all the written representations are known. This point was picked up by my noble friend Lord Phillips. Again, that is a concern if one has the mindset of a public inquiry. We say that parties will be able to feed in their views of the commission's initial recommendations, and others will be able to hear them. We have provided for counter-representation that will allow scrutiny of the arguments of others. Although we do not envisage a public inquiry with a quasi-judicial cross-examination, I say to the noble Lord, Lord Martin of Springburn, that our amendment provides for the chair to put questions or allow questions to be put to a person present at the hearing and, if the question is allowed to be put, to regulate the manner of the questioning or restrict the number of questions that a person may ask. Therefore, there will be an opportunity for the kind of engagement that the noble Lord clearly feels is of value.
The noble and learned Lord stated that the Opposition are arguing that if we adjust the number of weeks for written consultation there is time for oral inquiries to be held. Putting a deadline in the Bill does not guarantee that it will be achieved. The Boundary Commission for England was set a deadline in primary legislation in 1992. However, it reported months later because it felt the need to focus on the process under the previous legislation. I do not criticise it for that: it believed that the process was important. However, I ask the House to consider that the Boundary Commissions may think that the process is important, and that whatever deadline we set may not be met. If that happens, there is a danger that one of the key principles of the Bill will be seriously undermined.
The noble and learned Lord indicated that two days was not enough for an inquiry. Past inquiries have taken 12 days, or 10 under the previous review. Under the Government's proposal, there would be a maximum of 90 days of public hearings in England: five in each region, lasting two days each. That would be the upper limit. The Opposition would remove the limit on the number of days, and the period for counter-representations, meaning that the only place for scrutinising the arguments of others would be in that oral public inquiry. Therefore, we could expect more 10 and
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"In effect, the public consultation process is very largely an exercise in allowing the political parties to seek influence over the Commission's recommendations-in which their sole goal is to promote their own electoral interests".
The noble and learned Lord, Lord Lloyd of Berwick, indicated that he thought that all the key components were in fact ticked off with the Government's amendment.
In conclusion, the House is faced with a choice between a new mechanism for ensuring that the public can genuinely engage in the boundary review process through hearings or the recreation of the old inquiry process that we know can be alien to the public and would return us to the days of six-year boundary reviews. Even if it does not do that, it would certainly lead to a length of time which could undermine getting the boundary review through and the next election being fought on modern, up-to-date boundaries. I believe that the Government have moved a long way on this point and they have done so after careful consideration. I urge noble Lords carefully to consider the proposals that we are putting before the House today and to support them.
Lord Falconer of Thoroton: My Lords, there is a very real and important issue here. On close analysis, the noble and learned Lord's proposals are flawed, and fatally so. First, on the point about delay, I do not think that the noble and learned Lord was listening to what the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, were saying. In his closing remarks, he agreed that the period of time specified for his scheme and for the Opposition's scheme is broadly the same. With ours it is 26 weeks and with his it is 24 weeks. Therefore, a scheme is being proposed to enable the process to finish by October 2013. I want to spare the blushes of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, but they are probably the two leading experts on judicial review in this country and they are saying that there will be more judicial reviews. The noble and learned Lord, Lord Wallace of Tankerness, whom I greatly respect, is shaking his head but, with respect, I am listening to them, not to him, and they are saying that there will be more judicial reviews. They say that they do not know what form they will take but there will be more of them. Therefore, the noble and learned Lord, Lord Wallace, is making his scheme more vulnerable to delay through the process that he is proposing. I say that not on the basis of my opinion but on the basis of the opinion of the noble Lord and the noble and learned Lord. Therefore, with respect, his point about a delay is wrong.
Secondly, he says that this process will engage people, in that his scheme will allow people to come and say something-a process that the noble Lord, Lord Faulks, described as a day in court. The noble Lord, Lord Faulks, spent many days in court, but I have never known a day in court where you say something but then nothing happens. As the noble Lord, Lord Pannick,
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The third point that the noble and learned Lord made is that academics are all against us. They are not. They are saying, as we are saying, that we must streamline the process. We must not allow it to become abused, but we must have some process like this. The person who knows best about this is the boundary commissioner, Robin Gray, who said that if you do not have a process where the public can put their point of view and have a response to their point of view rather than complete silence, you are going to have real disquiet about an area where there is no disquiet at the moment. With the greatest of respect, I must say that the Government have moved some way, but they have moved nowhere near enough, and they have put us in a position where we have no alternative but to seek the opinion of the House. I beg to move.
4.51 pm
Contents 262*; Not-Contents 266.
*The Tellers reported 262 votes, but the Clerks recorded 261 names.
Aberdare, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Armstrong of Hill Top, B.
Armstrong of Ilminster, L.
Bach, L.
Bakewell, B.
Bannside, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Best, L.
Bhattacharyya, L.
Bilimoria, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Bridges, L.
Broers, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Ladyton, L.
Butler of Brockwell, L.
Butler-Sloss, B.
Campbell of Surbiton, B.
Campbell-Savours, L.
Carter of Coles, L.
Chester, Bp.
Chorley, L.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Condon, L.
Corbett of Castle Vale, L.
Corston, B.
Coussins, B.
Craig of Radley, L.
Crawley, B.
Crisp, L.
Cunningham of Felling, L.
Dannatt, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
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Dubs, L.
Eames, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Watford, L.
Exeter, Bp.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fellowes, L.
Filkin, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hall of Birkenhead, L.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskins, L.
Hattersley, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hennessy of Nympsfield, L.
Hollick, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hutton of Furness, L.
Hylton, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of Southwark, L.
Kilclooney, L.
King of Bow, B.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Listowel, E.
Lofthouse of Pontefract, L.
Low of Dalston, L.
Luce, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mar, C.
Martin of Springburn, L.
Massey of Darwen, B.
Mawson, L.
Maxton, L.
Meacher, B.
Mitchell, L.
Mogg, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Ely, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Neill of Bladen, L.
Noon, L.
Nye, B.
O'Loan, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Oxburgh, L.
Paisley of St George's, B.
Pannick, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prescott, L.
Prosser, B.
Puttnam, L.
Quin, B.
Ramsay of Cartvale, B.
Rea, L.
Rees of Ludlow, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Richardson of Calow, B.
Robertson of Port Ellen, L.
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.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
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Soley, L.
Stair, E.
Stern, B.
Stevenson of Balmacara, L.
Stevenson of Coddenham, L.
Stirrup, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Sugar, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Tenby, V.
Thornton, B.
Touhig, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Walker of Aldringham, L.
Wall of New Barnet, B.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Wills, L.
Wilson of Tillyorn, L.
Woolf, L.
Woolmer of Leeds, L.
Young of Hornsey, B.
Young of Norwood Green, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Bates, L.
Benjamin, B.
Berridge, B.
Bew, L.
Black of Brentwood, L.
Blackwell, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Caithness, E.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dear, L.
Deben, L.
Deech, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
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 of West Stafford, L.
Ferrers, E.
Flather, B.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
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.
Glasgow, E.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Goschen, V.
Grade of Yarmouth, L.
Greaves, L.
Greengross, B.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harris of Richmond, B.
Henley, L.
Heyhoe, Flint B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
8 Feb 2011 : Column 156
Howell of Guildford, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Kimball, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Krebs, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Lloyd of Berwick, L.
Loomba, L.
Lothian, M.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Maginnis of Drumglass, L.
Mancroft, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
May of Oxford, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montgomery of Alamein, V.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Neuberger, B.
Neville-Jones, B.
Newby, L.
Newlove, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northbourne, L.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Oppenheim-Barnes, B.
Palmer, L.
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.
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Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
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Renton of Mount Harry, L.
Risby, L.
Ritchie of Brompton, B.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Ryder of Wensum, L.
St John of Fawsley, L.
Sanderson of Bowden, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
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Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
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Stedman-Scott, B.
Steel of Aikwood, L.
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Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
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Strathclyde, L.
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Thomas of Gresford, L.
Thomas of Walliswood, B.
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Verma, B.
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Waldegrave of North Hill, L.
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Wheatcroft, B.
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Wolfson of Sunningdale, L.
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5.08 pm
Amendments 27GB to 27GJ (to Amendment 27G) not moved.
27H: Clause 12, page 13, line 40, at end insert-
"( ) of all representations received in writing or any electronic format made to a Boundary Commission, by publishing item online within 72 hours of receipt"
Lord Kennedy of Southwark: This amendment is similar to the one that I moved in Committee. The amendment in Committee required that all representations received should be published online within 24 hours; this amendment requires that they should be published online within 72 hours-three days-of receipt.
After listening to the Minister, the noble and learned Lord, Lord Wallace of Tankerness, I withdrew my amendment in Committee. However, what the Government have come back with is disappointing, because representations will be published only after the close of the consultation period. Although I accept that the majority of representations will be received towards the end of the consultation process, under the Government's proposals representations could be received more than three months before they are made public. That is not good and, quite frankly, I had hoped for a little more. I also cannot find any requirement for the Boundary Commission to publish-
Baroness Anelay of St Johns: My Lords, I hesitate to interrupt the noble Lord when he is so carefully introducing his amendment. I know that the House wishes to listen to him. Therefore, I invite noble Lords who are leaving the crowded Chamber to do so quietly so that we may have the full benefit of listening to the noble Lord.
Lord Kennedy of Southwark: I thank the noble Baroness for that. I cannot find any requirement for the Boundary Commission to publish representations received in any secondary consultation. If I am wrong in that, I hope that it will be pointed out to me. Finally, my amendment is green, makes sense and would save trees.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I thank the noble Lord for moving his amendment and for again raising this issue, which was discussed in Committee. The Government support the idea of a good flow of information between the Boundary Commission and the public so that people can be informed about the review and have their say. The noble Lord has kindly amended his original proposal to allow 72 hours for publication. However, this is still likely to be impractical given the tendency that we have noted of people to respond to consultations just before the end of the consultation
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Amendment 27G provides for a further consultation period of four weeks to comment on representations made to the Boundary Commission, which the commission shall be required to publish before that four-week period starts. I hope that that is a full explanation of how we hope to deal with the points raised by the noble Lord's amendment.
Lord Kennedy of Southwark: I beg leave to withdraw the amendment.
Amendments 27J and 27K not moved.
27L: Clause 12, page 14, line 2, at end insert-
"(1A) After Schedule 2 to the 1986 Act there is inserted the Schedule set out in Schedule (Public hearings about Boundary Commission proposals) to this Act."
5.15 pm
16HA: Before Clause 10, insert the following new Clause-
"Committee of Inquiry on Parliamentary constituencies
(1) There shall be a Committee of Inquiry, chaired by a High Court judge, comprising members of both Houses of Parliament, including representatives of the principal political parties in the House of Commons, as well as individuals with no party attachment, and others.
(2) The Committee of Inquiry shall-
(a) review the current rules for conducting Parliamentary boundary reviews (contained in Schedule 2 to the Parliamentary Constituencies Act 1986) considering in particular-
(i) how to address the inequality of constituency sizes;
(ii) how to stabilise the size of the House of Commons;
(iii) the relative importance of electoral equality against the specific character of individual constituencies, including the rules relating to geographical considerations, local ties and "inconveniences", and the rules on crossing borough and county boundaries; and
(iv) make recommendations;
(b) examine in this context the question of the optimum size of a constituency taking into account the need to maintain the Union, the proper role of MPs in their constituencies and in Parliament, and the implications for these roles of the responsibilities of other representative bodies including local authorities and the House of Lords, and make recommendations;
(c) consider the implications of an optimum size for the House of Commons, for an optimum size for the House of Lords, and make recommendations;
8 Feb 2011 : Column 159
(d) review the time taken to conduct boundary reviews, particularly in England, and make recommendations;
(e) review the alignment between the timing of local and parliamentary boundary reviews to ensure that stable local government electoral boundaries can form the basis for each parliamentary review, and make recommendations;
(f) examine the question of a role for keeping the operation of the rules under review and ensuring consistency of approach by the four Parliamentary Boundary Commissions, including monitoring their standards of performance, and make recommendations; and
(g) examine the arguments surrounding the statistical basis on which electoral areas are currently constructed, in particular whether the eligible population rather than electoral statistics should be used, and make recommendations.
(3) The Committee of Inquiry established under subsection (1) shall report to Parliament annually on its progress, and deliver a final report with recommendations to the Secretary of State within three years of the passing of this Act.
(4) Within 6 months of the Committee of Inquiry's report, the Secretary of State shall lay before Parliament, for Parliament's consideration, a scheme including draft Bills to implement the recommendations of the Committee of Inquiry."
Lord Wills: My Lords, the House will be aware that I moved an identical amendment in Committee. I did not seek to divide the House then but said that I would return to this issue on Report if the Government showed no sign of engaging with the issues raised in that lengthy debate. The Government have not engaged with the issues in any serious way and so, as I said I would, I now return to this amendment. In doing so, my approach is informed not only by my experience as a Minister in the previous Labour Government responsible for these issues but as someone-a member of a tiny minority in this House-who believes in the objectives of both parts of this Bill. I support a move to the alternative vote system not as a compromise or halfway house but as a desirable end in itself. I, of course, support any attempt to make the process of boundary revisions fairer and more efficient. I am certainly not opposed in principle to a reduction in the size of the House of Commons.
In Committee, I set out the case for an independent, impartial inquiry into the important and complex constitutional issues created by Part 2. I will not rehearse the case in detail again but I stress what I stressed then: this amendment does not seek to substitute my judgment for that of the Government in addressing these issues; instead, it sets up a process for an independent, fair and principled judgment to be made, which can then inform the legislation.
Over and again, as the debates on this Bill have progressed, it has become clear that the Government have not thought through the implications of their proposals. The process has been irredeemably flawed. That is all the more worrying as the measures, technical though they may often be, are of great constitutional importance. There has been no public engagement with the issues, no attempt at elucidating any underlying principles for the changes, no consideration of the implications of a referendum held after legislation, apparently no realisation that the proposals threaten community identity and no serious attempt to address the widespread belief, which has only grown as the Bill
8 Feb 2011 : Column 160
That, in sum, is the case for a pause-a relatively brief pause-so that an impartial inquiry can establish the principles on which these significant constitutional reforms should proceed. The Government's response to this proposal has been, to put it at its politest, inadequate. That is why I am bringing back the amendment to the House.
In responding to my original amendment, the noble and learned Lord, Lord Wallace, said that it asked the Government to,
- "wait longer to turn the Bill from a Bill that is workable and achievable into a deeply analysed but almost impossible one that would then have to be taken forward".
I believe that that accurately encapsulates the Government's resistance to the amendment. I will happily give way to the Leader of the House if he wants to correct me. He remains seated, so I assume from that and the benign expression on his face that I have accurately encapsulated the Government's position.
I understand this argument. In certain circumstances, it can be a valid one-for example, when there is some immutable deadline or when delay can cause greater damage than action. It is true that management textbooks often have chapters titled along the lines of "The best is the enemy of the good", but they also tend to have chapters titled along the lines of "Better right than quick".
The question of when speed should take precedence over deliberation is always a matter of judgment. The case has to be made every time judgment is exercised. That case has not been made here-not even remotely. The only argument for such speed that I can recall the Government making is that the Bill addresses issues that need addressing, that they have not been addressed for too long and that they must therefore be dealt with immediately. This argument does not stand up to any sort of scrutiny. It does not follow axiomatically from the fact that a problem needs a solution that the solution has to be immediate. Indeed, if a problem has persisted so long, it could equally be argued that a few months' delay is neither here nor there, particularly when the case for further impartial deliberation rests on the real improvements that it will bring to the legislation and on the way in which it will help to ensure that the legislation endures.
There are three arguments for the value of such an inquiry that outweigh any putative disadvantage arising from delay. First, it would enable the reforms to proceed on the basis of coherent principle in a way that they manifestly do not in their current form. Secondly, it would enable them to do so following the sustained engagement with the public-whom, let us not forget, our constitutional arrangements serve-which has not been possible under the rushed timetable laid down by the Government. Thirdly, the amendment would help to deal with the corrosive suspicion that the Bill is a partisan measure, motivated not by high constitutional
8 Feb 2011 : Column 161
Let me give the House a brief example of how this might work. A principled decision on the optimum size for the House of Commons would dispel this continuing suspicion that the figure of 600 was chosen because it most advantaged the government parties. The sum of the explanations so far advanced for how this figure was decided is that both government parties were committed at the election to reducing the size of the House of Commons and so decided that the new size would be 600-a nice round number. That is a little like a child asking a parent where they came from and getting the reply, "Well, my darling, Mummy and Daddy met and fell in love, and then nine months later along you came". It may all be true but it misses out some rather crucial details about what happened in the mean time.
Why did the Conservative Party decide to increase-not decrease or reduce-the size of the House of Commons from the 585 that it pledged in its manifesto? Who suggested it? Why did the Liberals agree to it rather than insisting in the coalition agreement that the number be lower than that? They had a figure of 500. What discussions on the appropriate figure were held within the coalition? How exactly was the figure of 600 arrived at-and so on and on? We do not know the answer to any of these questions because Ministers refuse to tell us. They airily wave away all such questions as if they are not really important. They are important. The difference of 15 seats between the figure that the Conservative Party was pledged to in the election and the figure now in the Bill is the difference between one party being in government and its not being in government. It is that important. The Government must realise that, as long as they fail to produce any coherent explanation of how this figure was arrived at and why they went back on what they promised in the election, the suspicion must remain that this decision was motivated by the pursuit of partisan advantage. That suspicion could easily be dispelled by the work of the inquiry that this amendment would establish to explore the optimum size for the House of Commons.
In tabling Amendment 28A, the Government have belatedly recognised that there might be an issue here that needs to be addressed. I do not wish to pre-empt the discussion that we will no doubt have on that amendment, but it is not a substitute for this amendment. Unlike this one, that committee's remit would be imprecise and its composition vague. It would remain in the tight grip of the Executive-there would be nothing independent or impartial about it-and it would commence its work after the new system was in place. It is another ill thought-out proposal of the sort that litter this Bill.
What if this committee that the Government propose to set up decides that 600 is not the optimum size for the House of Commons? The amendment makes no commitment to action, only to publishing its finding. Will the Government act on the findings of their own committee, so inflicting further wholesale change on the electoral system, or will they ignore them, in which
8 Feb 2011 : Column 162
Moreover, the relatively short delay envisaged by this amendment would also help to address deep concerns about another important issue raised by the Bill-the Government's proposals that the boundary revision should take place on the basis of a register that everybody, including the Government, accepts is deeply flawed because more than 3 million voters who would otherwise be eligible to vote are simply not on it. In doing this, they must recognise that they are creating suspicions that they are motivated by partisan considerations, as it is widely believed that doing the boundary revision on the basis of this flawed register will primarily disadvantage the Labour Party. A short delay would allow the measures that the previous Labour Government brought in to improve the register to take effect and would mean that an election could be held on the basis of boundaries on a new, truly comprehensive and accurate register.
Finally, there is no reason to think that if your Lordships' House agrees to this amendment the Government will not get their legislation in this Parliament. Under the new fixed-term Parliament proposed by the Government, they will have adequate time to digest the results of the inquiry and get the legislation through before the next election. The only cost of this delay would be that the new constituency boundaries and a new system of voting-if that is what the referendum decides-would be in place not for the next general election but for the election after that. I ask the Minister what really is so wrong about that-is that really too high a price to pay for all the improvements that just a few months' extra reflection, deliberation and public engagement could bring to this important legislation? Constitutional reforms should be built to last; they should not become subject to constant fiddling and wholesale revision from one Parliament to the next. That corrodes public trust in our democratic system because it suggests to the public that politicians are more interested in rigging the system to serve their own interests than in using it to serve the people who elect them. If these reforms are to endure, as I think they should, it should be immaterial whether they are in place for this election or the next. I ask the Government to reflect on that point.
This amendment would get the Government to the place that they want to be and with all the additional benefits that such further impartial, independent deliberation and public engagement can bring. It would help to sustain public trust in our constitutional arrangements by helping to ensure that this legislation can be viewed as genuinely principled and valuable constitutional reform rather than the product of arbitrary and partisan calculation, as so many people see it at the moment. I beg to move.
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