Census (Return Particulars and Removal of Penalties) Bill [HL]

Lord Lipsey Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 4th June 2019 Grand Committee

[Lord Beith (LD)]

My Lords, I support the noble and learned Lord’s amendment. I apologise to the Committee that I was not able to speak at Second Reading, but the discussions in the Constitution Committee, of which I am also a member, have brought to light the seriousness of this problem within what is otherwise a highly commendable and necessary Bill. I am afraid that I have form on this subject: on 25 March 1975, I moved an amendment to the census order—it was possible to move amendments to those statutory instruments unlike to almost all others—precisely to assert the principle that, so far as the procedure allowed in that case, the state should not turn people into criminals because they had some good conscientious reason for declining to answer questions in such areas as were not fundamental to the state knowing where its population was, how many people there were and in what kind of properties they lived.

I remain of the view that it is undesirable for the state to extend its reach by way of criminal offences that put people in that position. As my noble friend did in the context of the previous debate, I hope that the guidance and what is said to people by those who hand out and collect census forms will assist in reassuring them, but, like the noble and learned Lord, Lord Judge, and the Constitution Committee, I believe we are legislating unsatisfactorily. The primary reason for doing so given by the Minister in his careful and lengthy letter was that, unless we made certain further provisions to tidy up other legislation, we might create a degree of ambiguity. I found that unconvincing; I do not think any court would be in any doubt as to what Parliament had intended if it phrased this part of the legislation so as to make it quite clear that it was not creating or continuing a criminal offence of failing to answer questions relating to sexual identity and gender.

Everybody seems to agree with what we are trying to do. Let us for heaven’s sake do it in a way that makes our legislation both sensible and not threatening to individuals who perhaps do not view these matters in the detail that we have been required to do today.

[Lord Lipsey (Non-Afl)]

My Lords, as one would expect, the noble and learned Lord, Lord Judge, has made an extraordinarily powerful case. I really think that the Minister, as well as restating his case, which is wide of these amendments, is obliged to expand on “why not”, preferably in words a normal person could understand and that are not deep in a complicated letter.

All sorts of people may come to us during the census period and ask, “What’s my legal position if I don’t want to fill this in?” Does everybody feel confident, having heard the noble and learned Lord, Lord Judge, that they could readily explain the situation to those who came in and saw them? Can they readily show that those people would understand immediately that, although they may be committing a criminal offence—though not one to which any penalty attaches—it would be perfectly all right and no future employer would ever hear about it? I am not trying here to construct a legal case, because I am not a lawyer; I am trying to reflect the reality that may exist if the Bill goes through without the amendments tabled by the noble and learned Lord, Lord Judge.

Census (Return Particulars and Removal of Penalties) Bill [HL]

Lord Lipsey Excerpts

2nd reading (Hansard): House of Lords
Monday 13th May 2019 Lords Chamber

[Lord Lipsey (Non-Afl)]

My Lords, I am a facts geek. I chair the All-Party Parliamentary Group on Statistics with Kelvin Hopkins in the Commons and am vice-chair of Full Fact, the fact-checking charity, so naturally I welcome the Bill because it is going to provide more facts.

I also welcome something that is slightly more unusual to welcome: that there is such a short speakers’ list. I think that, if we had been debating this 30 years ago, there would have been a large number of noble Lords deploring the normalising of homosexual orientation through this kind of action. Indeed, not much more than 30 years ago the Prime Minister of the day cancelled the NatCen sexual survey, then very important in the combating of AIDS, out of just such prejudices. One thing that gives me comfort in the difficult world that we live in has been the huge advance in the acceptance that people’s sexual orientation is a matter for them and no one else.

There is, however, a question about the use of the census for this purpose. Many of the facts that we have at our disposal do not come from the census, which asks the questions of everyone; they come from various forms of sample survey. Obviously, that is less intrusive and requires less work, so could we not do it for sexual orientation? Well, I do not think you get very good numbers that way. Just over 10 years ago, in 2008, the ONS did an analysis of all the sample surveys that had been done into sexual orientation, and it found that the proportion of homosexual people in the community varied from 0.3% to 3% depending on the survey—a factor of 10. So they do not mean much.

Surveys are not very good for very small numbers. I came across another survey on the prevalence of out-of-control gambling; it was a big sample, but I would not trust the figures further than I could throw them since they jerk about all over the place. The reason for that is that sample surveys do not work well when you are trying to identify small groups of people. That is even truer of much smaller groups such as transsexuals, so I would not much trust the accuracy.

There are yet other estimates. An opinion poll recently found a figure for homosexuals of 4%, while the ONS’s latest estimate is 2%. These figures are all over the place. Some people think that the census figures will be all over the place too because many will refuse to answer but, for the reasons that I have already given regarding the change in society, they will probably turn out accurate enough. The ONS itself is testing its questions really thoroughly in an attempt to ensure accuracy.

The census is the only thing that tells you facts regarding a relatively small geographical area. Samples can give you national figures and sometimes regional ones but very rarely constituency-wide figures, let alone local authority-wide figures or figures for wards. There are areas in this country where the gay population happens to be very concentrated and, as the noble Baroness, Lady Barker, said, those areas may require something quite different from other areas by way of services. I would not push this too far, but they probably do not need quite as many schools for primary-age children, for obvious reasons. So it is going to be of extraordinary value to local authorities and others in the planning business to have this definitive statement of what percentage are gay in particular areas instead of having to rely on national figures and trying to interpret from there.

Culturally, this move represents an important step forward in the recognition that homosexuality is a perfectly natural human condition and accepting that condition with complete equanimity. I therefore welcome the Bill with unusual warmth.

Constitutional Convention

Lord Lipsey Excerpts

Thursday 13th December 2018 Lords Chamber

[Lord Lipsey (Non-Afl)]

My Lords, I strongly support the proposal of the noble Lord, Lord Foulkes, for a constitutional convention. This is as well, because I will not say a single word after now with which he will not vehemently disagree. I hope he will forgive me.

As the last two speakers have done, I want to speak briefly about electoral reform. I know that AV was decisively rejected in the 2011 referendum. As a campaigner for electoral reform, that came as no surprise to me. It was a rushed, botched referendum where the pros were destroyed by the serial misjudgments of Nick Clegg, the then Liberal Democrat leader, and the treachery of David Cameron. However, as we are fast learning, no referendum result is for ever. When the facts change, the British people are entitled to change their view, and I think the facts have changed on electoral reform.

What facts on electoral reform have changed? Most significantly, since 2011, the traditional main argument of first-past-the-post supporters—that it provides strong and stable Governments—has been left in ruins. In truth, the system has always been liable not to produce such Governments, but between 1979 and 2010 a series of flukes led to majority Governments: under Labour because the Tories were unelectable and under the Tories because Labour was becoming unelectable. It remains the case that we are now mostly getting Parliaments in which another party holds the balance of power. Currently, it is the DUP; we can all see where that is getting us.

A sharp decline in marginal seats is spotted less often in this country, although it is commonly remarked on in the United States. Even since 2010, the number of marginal seats has fallen from 85 to 74, so the chances of a huge swing leading to an influx from a different party that then enjoys an overall majority have declined greatly. It is harder than ever for a big party to build up a lead in seats big enough to outnumber the MPs who do not belong to either main party. The reality is that, except in unusual circumstances, strong and stable Governments have gone—and that defence of first past the post with them.

The change in the nature of the two parties, partly caused by first past the post, is equally important. When I was being brought up in politics, I was taught that the main aim was to attract the centre ground; if you did not, you would not get into office. Of course, it is now possible to become a successful party by appealing to just a third of the electorate, as was said to be the strategy of Mr Ed Miliband in 2015. That strategy makes sense. At the same time, perhaps more crucially, the danger of the growth of a new party to the existing two big parties has been virtually removed by first past the post. The SDP nearly did it, under peculiar circumstances, but anyone who starts a new party now would not, I think, be optimistic about their chances of success.

So we have a terrible distortion in our democracy: two monopoly parties, each aiming at a smallish section of the electorate, each ever more a prisoner of their activist members. Arthur Balfour famously said of the Conservative Party that he would rather take advice from his valet. Nowadays, the activists in each party are in charge and call the shots, so we see the Brexiteers forcing the Prime Minister into the situation we saw yesterday, with many Conservative MPs cowering for fear of their local associations, and we see what we see in the Labour Party. There is no threat to the big parties’ monopolies because it is nearly impossible to establish a new party. I am not saying that we should do so; I would like the two big parties to behave differently and start to appeal to the centre ground again, but they will not while the situation is like that. The two big parties have not just a monopoly, but a protected monopoly.

I am not a supporter of pure proportional representation on, say, the Israeli model. I sat on the commission chaired by Lord Jenkins, which came up with the attractive, if a trifle complicated, solution of AV+. Times move on and today I would be content if a referendum approved AV tout simple, but the indefensibility of first past the post is clearer than ever. A constitutional convention is the best way to start a national debate on whether it should be replaced and by what.

Before I sit down, I shall pay my own tribute to the noble Lord, Lord Higgins, of whom I was a friend before either he or I were in this place. He is the greatest Speaker that the House of Commons never had. We shall miss him terribly.

Local Government Elections (Referendum) Bill [HL]

Lord Lipsey Excerpts

2nd reading (Hansard): House of Lords
Friday 15th December 2017 Lords Chamber

[Lord Lipsey (Non-Afl)]

My Lords, I congratulate the noble Lord, Lord Balfe, on giving the House an opportunity to debate electoral reform, albeit only one aspect of it, by introducing this Bill. Some noble Lords will know that I have previous on this: for nearly a decade I chaired Make Votes Count, a group campaigning for electoral reform. We were scuppered in the end by Nick Clegg’s eccentric decision to hold the referendum on a date in 2011 which made it absolutely certain that the cause he purported to support would go down to defeat. Incidentally, had the AV system been in place for the 2017 election he would almost certainly have won his Sheffield Hallam seat with the aid of Tory second preferences—serves him right.

The referendum of 2011 temporarily took electoral reform off the national agenda but I doubt it has gone for ever. We now have two dominant great national parties: one divided to the point of fissure over Brexit; the other with a set of policies far more left-wing than at any time in its recent history and led by a man whom few see as prime ministerial material. Under first past the post at the next general election, people—noble Lords excepted, sadly—will be able to vote for the devil or the deep blue sea, but any other choice is likely to be a wasted vote.

The case for electoral reform in local government is even stronger than in national government. Partisan party governance is gradually going out in local government. In many places now we have elected mayors. In other places we have the executive model of local government, where the role of individual councillors is more to represent their constituents than to govern. Yet we retain first past the post, which, among its many flaws, means that councillors are effectively chosen by parties, not people. Turnout is low, not surprisingly in the circumstances, so councillors have the weakest of mandates.

Meanwhile, piecemeal, subnational administrations have increasingly not been elected by first past the post. Mayors are not; for example, London uses the supplementary vote. The Scottish Government and Welsh Assembly are not; they use the additional member system. In Northern Ireland and Scotland, STV is used for local elections, and the Welsh Assembly wants it to be used for council elections there, too. I do not think there are many voters who would want a return to first past the post—for example, for the London mayor—although, regrettably, a proposal to that effect was sneaked into the Tory election manifesto.

The Bill of the noble Lord, Lord Balfe, would lead in time to a further extension of electoral reform into local government, and that is to the good. But I have a couple of concerns about it. The first is that it sets the bar rather high: 10% of local voters have to sign a petition to trigger a referendum, and even that is not enough. The council has to agree and of course councillors have a vested interest in retaining the system that led to them being councillors. I would love to see the country swept by a mass movement for fair votes but I shall not hold my breath.

My second concern is more fundamental. I am not a supporter of referendums. I believe in representative democracy—actually, with a slight leaning towards epistocracy, as represented by this House—but not in direct democracy. The last two referendums we have held—on electoral reform, with a low turnout and very little information seen by the public, and on Brexit, the consequences of which we are still grappling with—have not warmed me to the device. I doubt that local referendums on electoral reform would make many hearts beat faster, and I very much doubt that the majority of electors would choose to grapple with the issues involved. Turnout would be nugatory. Moreover, if citizens voted for reform, what reform—supplementary vote, alternative vote, STV, top-up lists? Would the top-up lists be closed or open? I will not even go into d’Hondt and the many varieties of largest-remainder systems. You cannot resolve a complex set of preferences by a single vote.

There is, however, a form of direct democracy towards which I am much warmer and which has promise as a way forward. That way forward is citizens’ juries. I am sure all Members of the House are familiar with what a citizens’ jury is: you get together a group that is reasonably representative of the population, and for a day or a weekend they sit together to debate the issues in front of them. These are exposed in dialogue with the key arguments by experts. The group deliberates and then decides. Often, as a result of the education process, people change their minds. I remember one citizens’ jury that started off by saying how dreadful the House of Lords was, because it was appointed, but ended up thinking that we were about right. That warmed my heart to this device.

The Constitution Unit at UCL recently staged a citizens’ jury on Europe and the results were released this week. They are fascinating. Initially, the citizens wanted free trade and less immigration—perhaps they should all have been given positions in this Government. But then the experts said, “No, you can’t have your cake and eat it”, so what then? A clear majority prioritised free trade over immigration controls, which came as a slight surprise to me.

I would like to see this Bill amended in Committee so that either councils could decide to hold such citizens’ juries or a given percentage of electors, perhaps 10% or less, could trigger the calling of one. If the citizens’ jury opted for reform, the law would bring it into being. My own firm belief is that in most cases, an informed and engaged group of citizens would want electoral reform but if not, that is their prerogative.

--- Later in debate ---

[Lord Balfe]

My Lords, I thank noble Lords who have spoken in this debate. I have obviously missed something regarding the noble Lord, Lord Lipsey, who is sitting in a different position in the House. I do not know whether this is indicative of something wider, but I recall years ago arguing within the Labour—

[Lord Lipsey]

Since there seems to be some mystery about this, I clarify that I have moved to being a non-affiliated Peer on being elected to the deputy chairmanship of the charity Full Fact, which is determinedly non-partisan.