Fixed-term Parliaments Bill

Lord Lamont of Lerwick Excerpts

Monday 18th July 2011 Lords Chamber

[Lord Rennard]

My Lords, the noble Lord, Lord Butler, will no doubt recall very well from the period in early 1992 that there was much speculation about the likely timing of the general election then due. Options of April, May and June were all under consideration by John Major, and his choice was based simply on when was most likely to favour his party in what was expected to be a very close contest. Indeed, it was a very close contest that was well described in the book I much enjoyed by the noble Lord, Lord Hill of Oareford, entitled Too Close To Call. It was clear from that account that the advantage of being able to choose polling day possibly made a decisive difference.

At the time I was involved in helping to prepare the campaign led by my noble friend Lord Ashdown. I was quite shocked to receive a call one day in the run-up to that election from someone who ran a printing firm.

[Lord Lamont of Lerwick]

The noble Lord says that John Major was much advantaged by being able to choose the date of the election, but he actually chose the last possible date. Is that an argument for a fixed-term Parliament?

[Lord Rennard]

My Lords, the last possible date was June of that year. A date that was widely considered was the May of that year, which coincided with the local elections. In fact, the date chosen was 9 April, which was rather earlier than the last possible date, and was chosen—as the book I have just described accounts—for his advantage. I asked the printer, who told me that the date would be 9 April, how he could know. He told me he was breaking commercial confidence by telling me, but he knew because he was in the process of printing the election address of a then Cabinet Minister who was able to tell him that the date would be 9 April, and that this date was on the front of his leaflet. It seemed to me that that Cabinet Minister had an advantage over other candidates in that election, and that the ability to print election literature at a time of one’s choosing is just one of the unfair advantages afforded to the governing party over all other parties in our present arrangements.

As I have said before in these debates, it is rather like allowing Sir Alex Ferguson to pick the dates for all the Manchester United games. In 1992, the advantage of choosing polling day was possibly crucial to the narrow and generally unexpected Conservative victory, although in that election the Sun newspaper famously said:

“It’s The Sun Wot Won It”.

I know that many noble Lords opposite were candidates for the Labour Party in that election, in which they were led by the noble Lord, Lord Kinnock. I ask them to remember the words of their manifesto in 1992, which said:

“This general election was called only after months of on-again, off-again dithering, which damaged our economy and weakened our democracy. No government with a majority should be allowed to put the interests of party above country as the Conservatives have done”.

It concluded:

“Although an early election will sometimes be necessary, we will introduce as a general rule a fixed parliamentary term”.

The principle of this Bill is to do exactly that. It upholds a principle that was also in last year's Labour manifesto, which guaranteed to ensure that legislation would be introduced to make sure that we have the principle of fixed-term Parliaments. That principle was also in last year's Liberal Democrat manifesto and was one that David Cameron agreed in opposition to consider seriously before committing his party to it in the coalition agreement.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Lamont of Lerwick Excerpts

Wednesday 15th June 2011 Lords Chamber

It has been argued time after time—

[Lord Lamont of Lerwick]

Is not one difference between having a referendum on an issue such as the National Health Service or local government reorganisation and a transfer of power and competence from the UK to the EU that in the case of the latter it is almost irreversible? It is extremely difficult to reverse.

[Lord Taverne]

The noble Lord has made a point which on the face of it is plausible. It very much ties up with the argument put by the Front Bench that the case of transfer of power in Europe is different because there is a special problem about British trust in the European Union, which can be restored only by giving people a say. Then by some extraordinary leap of logic, it is suggested that they should have a say on issues such as appointments to the European Court of Justice or the protocol on the excessive deficit procedure, because that would apparently restore trust—because in the pubs they talk of nothing else.

As the noble Lord, Lord Liddle, revealed in Monday's debate, the European Union is not the only body that has lost people's trust. Parliament is distrusted even more than Brussels—by 66 per cent, he revealed, as compared with only 64 per cent in the case of Brussels. The Government are mistrusted by 67 per cent. What is the answer to this mistrust of Parliament and Government? According to the Government's logic, the answer is more and more referendums—more power to the people. Who are the most mistrusted of all by miles, by 82 per cent? The political parties are. What should they do? Obviously, the answer is to promise more and more referendums in their election manifestos because people would have more say and, as Rousseau preached, the will of the people must prevail. I am amazed that speech after speech from Conservative supporters of the Bill echoed the cry of Rousseau; the inspiration of Robespierre and the Committee of Public Safety. They abandoned the philosophy of John Locke, one of the architects of parliamentary government, who also inspired the founders of the American constitution—and, of course, goodbye Edmund Burke.

The noble Lord, Lord Howell, and others have told us that we will not have referendums in this Parliament. If there is a referendum in a future Parliament it will not be a separate referendum on each individual item in the list of the 56 but on a whole batch of changes together. We will be given a choice of saying yes or no, in a single vote, to a licorice allsorts collection, including perhaps the decision on a new Advocate-General, on new tasks relating to prudential supervision by the European Central Bank, on a multiannual financial framework and so forth, as if any such choice of one yes or no vote to cover the lot could possibly make any sense.

The noble Lord, Lord Howell, said that it will be no different from voting for party manifestos in elections with their long list of promises. Personally, I do not subscribe to the general belief in the sanctity of the manifesto mandate. Parties should make fewer promises and grade their commitments at election, with some as aspirations and others as commitments that they can safely undertake irrespective of changed conditions. Manifestos are too detailed and they do not allow for events. As Macmillan said, “Events, dear boy, events”, affect you.

At least manifestos relate to issues with which voters are familiar. Nothing could be more remote from their experience of everyday concerns than most of the items in the list of 56 possible referendums in the Bill. Essentially, the vote at elections is for something that people understand: choosing a new Government. The analogy of the noble Lord, Lord Howell, does not stand up.

The Bill is highly dangerous for two reasons. First, as the noble Lord, Lord Kerr, and others with great experience of European negotiations have argued, it may lead to immobility and sclerosis on many occasions when what we need above all is flexibility. Just as serious—I would argue even more so—are the crucial constitutional issues in the Bill that undermine the system of parliamentary government and are a major move towards government by plebiscite, California-style.

Some of the Bill’s supporters seem positively to welcome this. With others, it seems that the hostility of Eurosceptics to Brussels is so strong that it outweighs concern for parliamentary government, which has served this country so well. I hope that some of them will recognise that our system of parliamentary government matters even more.

--- Later in debate ---

[Lord Lamont of Lerwick]

My Lords, when the noble Lord, Lord Kerr, spoke in the very first debate on the first amendment in Committee—or perhaps it was on Second Reading—he said that he was like a minor character in Shakespeare referred to in Act 1, Scene 1, and never heard of again. It has, however, been to the benefit of the entire House and the Committee that instead he has been bestride the stage like a colossus. Great as my respect for the noble Lord is, I do not feel that a sunset clause on this Bill is any more appropriate than a sunset clause on a local government reorganisation, a National Health Service reorganisation, or anything else.

However, there has always been an argument for attaching a sunset clause or a sunset condition to some EU legislation with great advantage, because so much EU legislation is irreversible. That is a point that I have made before, but I repeat it simply because I think that that is the problem of connection between the public, Parliament and the EU, and one of the reasons why there is scepticism and mistrust about the European Union.

[Lord Davies of Stamford]

Is the great distinction about referenda which the noble Lord is making—he has made it twice this afternoon—whether a decision once taken becomes irreversible, and that in that category there should be a referendum; and that in other categories there should not? If so, why will there not be a referendum on reform of the House of Lords? Surely that will in practice be an irreversible decision. Once you have a democratically elected legislative Chamber, you can hardly go back on that.

[Lord Lamont of Lerwick]

I have not heard that there is not going to be a referendum on legislation for the House of Lords; I have heard many people speculating that amendments may be moved. We shall see, and I shall see how I vote on the interesting suggestion made by the noble Lord.

It has been said that this debate has at times been something of a Second Reading debate on many of the amendments. That is because the Bill has been misrepresented in several of the debates in an exaggerated way. The noble Lord, Lord Howell, has made it clear again and again that we are not going to get a plethora of referendums, for several reasons. First, changes in competences and powers tend to come in packages, in treaties. Secondly, we have been assured many times that we will not have more great treaties. The fact that certain vetoes and certain competences remain after we have had Lisbon, Nice and Maastricht shows that there are very good reasons why national Governments wish to retain them. No Government are going to invest a huge amount of political capital in pursuing some relatively minor matter. That is not how these things operate; they tend to come in packages.

People talk about these issues being trivial. We are talking about competences and powers. We are talking about vetoes, for example. The noble Lord, Lord Kerr, referred to the amendment very well proposed last week by the noble Lord, Lord Davies—I think it was Amendment 22A—about exempting defence procurement from the requirements of the internal market. He said that that is something that could advantage the country, and surely we ought to have the flexibility to move to QMV. Actually, I think it is important to be able to buy certain types of defence equipment and certain weapons, or produce them where you want to, and not have them subject to the full rigour of the market. In the previous Government, Des Browne himself—now the noble Lord, Lord Browne of Ladyton—said that he regarded that as a vital power to be retained by the British Government. Judging by the previous Government and what the former Secretary of State said, that is an extremely important power for this country to retain.

The noble Lord said the Bill was otiose because the Government were not intending to hold referenda in this Parliament. As the noble Lord, Lord Howell, said, the Bill will apply in this Parliament. It is not otiose any more than the Act giving effect to the Maastricht treaty. It had an opt-in for Britain to opt into the euro, but it was made very clear that we were not going to opt into the euro in the next Parliament. That did not make it otiose.

Then we have heard the argument that we are legislating for future Parliaments, but of course it is perfectly open to any future Government to repeal the Bill. With great respect to my noble friend Lord Jopling, we would be getting the worst of all worlds if we enacted the Bill but then said that the whole floodgates could be opened again without any specific intention at the beginning of each Parliament. I can think of nothing that would inflame public opinion more and get the tabloid press—about which we have heard a lot in this debate—going again than if, without any specific intention, a Government decided at the beginning of each Parliament to open the floodgates to the reversal of this legislation. We are told that it will lead to inflexibility in negotiations. However, other countries have procedures that take a long time and they have certain provisions on which they have to hold referenda. We have seen how it takes time for some of these treaties to be legislated for in other countries. Therefore, I do not think that the position of Britain’s negotiators would be any different from that of other countries.

What has been confusing in these debates is that this legislation is about competence and powers, whereas people try to make it about issues and policies. Nice, Lisbon and Maastricht have all given a tremendous amount of power and transferred sovereignty to the European Union. What in terms of power and competence do the Opposition and those opposed to the Bill think the European Union needs? What is the issue? What is the European Union not able to deal with at the moment? We have had many changes in recent years. The United States constitution has had only 27 amendments since coming into existence but we produce endless changes. The European Charter of Fundamental Rights was written in very dense language and was much longer than the Universal Declaration of Human Rights or the charter of the United Nations.

The noble Lords, Lord Kerr and Lord Hannay, have certainly enlightened our debates with their enormous expertise and very abstruse knowledge of difficult and complex issues. However, when I listened to them I was reminded of what Winston Churchill said when he became Chancellor of the Exchequer. He came out of the Treasury and said, “These chaps speak Persian. I prefer generals and admirals”. Of course, the contributions of the noble Lords, Lord Hannay and Lord Kerr, have been extremely important and enlightening in these debates, but I think that with some of these abstruse issues—the language used and so on—there is a real problem of connection between ordinary people and the European Union.

What has not been recognised enough by opponents of the Bill is the tremendous crisis that is taking place in Europe over the European Union. We have seen dramatic changes in public opinion on European integration in countries such as Finland. However, I would particularly single out what has happened in Holland. Throughout my life, Holland has been the most pro EU-integrationist country in Europe; now, it is the most obstructionist. It is strongly opposed to the bailouts of Greece, Ireland and Portugal and it wants to dismantle the Schengen provisions as well. The Bill draws a red line to say that in this Parliament, and beyond if this Government are re-elected, there will not be a transfer of powers. It seems to me to be sensible legislation and we should be determined to carry it forward. I think that the red lines we are drawing will go some way to restore some trust in the European Union.

[Lord Grenfell]

My Lords, after so many Second Reading speeches at a Report stage, it may well be sunset before we reach a decision on this amendment. I have only one thing to say following the comments of the noble Lord, Lord Lamont. My experience in this place has been that your Lordships’ House has always been quite reluctant to call for sunset clauses—we do not do so lightly. They are a very important instrument and one has to treat them with great respect and care. The noble Lord, Lord Lamont, asked: if we have one on this Bill, why not have one on a number of other pieces of domestic legislation? I agree with him. I would not want to see a sunset clause on those pieces of legislation that he mentioned. However, there is a big difference between those and this piece of legislation.

This Bill has huge constitutional implications, but it is a step in the dark at the moment for us because we do not quite know what they will be. As it is of such huge constitutional importance, I feel that there should be the safeguard of a sunset clause because the next Government will be in an experimental stage of having to see how this legislation will be implemented. I do not think you can group this piece of legislation with other kinds of legislation and say that if you want a sunset clause on this, you should have it on the rest. This is a special case. It needs to have a sunset clause in order to be sure that when we step out into the darkness—it will be dark when the legislation first starts to have an impact—we can, if necessary, draw back from the brink.

Fixed-term Parliaments Bill

Lord Lamont of Lerwick Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord Wallace of Tankerness]

My noble friend Lord Lamont has also been trying to get in. If he wishes to ask a question, I shall deal with it and then press on.

[Lord Lamont of Lerwick]

At Second Reading, my noble and learned friend said that the advantage and the public interest in having a fixed-term Parliament was predictability and continuity, as a Government could then complete their programme over a five-year period. I understand that argument. However, what public good is produced when a Government with a wafer-thin majority lose the confidence of the legislature and then artificially try to create a situation in which a new type of Government with new allies might be formed? Why is that in the public interest? Why have these two devices to try to create a new Government in place of the previous one? I do not see the public interest in completing five years with two different Governments.

[Lord Wallace of Tankerness]

As has been pointed out, what happened in Wales was that, after Mr Alun Michael resigned—he did not actually face a vote of no confidence but there was one on the horizon—a new Government were formed who quite successfully saw out their term of office. The point that I am trying to make is that with fixed-term Parliaments there is that certainty.

Equally, it has been widely recognised that there must be some mechanism that allows an election to take place if it is no longer possible for a Parliament to continue. That is why I do not agree with my noble friend Lord Cormack that these are devices that somehow are to help the Executive; they are devices for where Parliament can no longer function. If these rules had been in place in 1979 and the then Prime Minister, Mr Callaghan, had decided that calling an election was the right thing to do, I rather think that the then leader of the Opposition, Mrs Thatcher, might well have agreed with him and there would have been a two-thirds majority for a dissolution. Alternatively, as happened in 1924, it was possible for one Government to resign and for another to come in and form an Administration.

Fixed-term Parliaments Bill

Lord Lamont of Lerwick Excerpts

Monday 21st March 2011 Lords Chamber

[Lord Wallace of Tankerness]

I might be missing something somewhere. The coalition agreement referred to the 55 per cent that the noble and learned Lord has described. At the same time, he gave a plug to my right honourable friend’s book, for which I am sure he is very grateful. However, that is not in the Bill; I am describing what is in the Bill. Of course it is a product of the coalition. It is a coalition Bill that is before your Lordships’ House.

I recall sitting in this House during Questions and listening to many noble Lords on all sides of the House criticise that 55 per cent provision. The noble and learned Lord nods his head in agreement. It was a provision that received considerable criticism. There was a criticism that it meant a vote that could lead to a Dissolution. People asked about votes of no confidence. At the same time, there was the issue of whether there ought to be a higher majority to trigger a Dissolution automatically. The two mechanisms that provide the trigger in the Bill as it stands address the criticisms that were made. I make no apology for saying that the Government listened to the criticisms that were made, tried to take them on board and came forward with what is proposed here. It may be unique to the United Kingdom but it addresses some of the concerns.

We will come later to the issue of no-confidence votes but at present this House and—it is fair to say —other commentators and people in the other place said that there was an important point about the vote of no confidence on a simple majority having a consequence. The Government listened to that. Historically, there have been two possible outcomes. In 1924, when there was a vote of no confidence in Mr Baldwin’s Government, Mr Baldwin resigned and a new Government was formed under Ramsay MacDonald. In 1979, as has often been mentioned in our debates on this Bill, when Mr James Callaghan’s Government lost a vote of no confidence, he then proceeded to seek a Dissolution and an election was held.

When we come to the next part of this clause, that is what we will be discussing. We will no doubt debate what constitutes a no-confidence vote. We seek to reflect what has been the constitutional position of the outcome of a no-confidence vote on a simple majority. Equally, we took the view that there were circumstances in which it would be more appropriate, if there was a consensus that a Parliament should be brought to an end, to have a trigger mechanism that was more than a simple majority, such as a two-thirds majority.

[Lord Lamont of Lerwick]

I apologise for not having been here earlier but I have heard everything since my noble friend Lord Norton spoke. The Minister referred to 1979. Would he describe for the benefit of the Committee how the provisions of this legislation would apply to the conditions of 1979? If there had been a vote of no confidence in Mr Callaghan’s Government under the provisions of this Bill, would he have been able to wait a fortnight, give jobs to the Irish nationalists and re-form his Government, thereby avoiding an election?

[Lord Wallace of Tankerness]

Hypothetically, if he was able to do that, it could have happened. In a Parliament with less than six months to go, it is highly unlikely that that would have happened. There has to be a political reality. It was quite clear that that Government had run their course and there was a general view that an election was needed. Therefore, I think it highly unlikely that a new Government would have been formed, and no new Government having received a vote of confidence within 14 days there would have been a Dissolution. That is one set of circumstances. However, there ought not to be a vote of no confidence if that is not the reason behind the consensus that Parliament needs to come to an end and for there to be a general election. Rather than contrive a vote of no confidence, one should have it as a solution but with the threshold set at such a level that it cannot easily be obtained by a single party for political advantage.

In much of the noble and learned Lord’s speech at Second Reading, his main agony about this Bill was that it would be possible for a Government to abuse the procedure and seek a Dissolution, which would defeat the whole purpose of having fixed-term Parliaments. Therefore, we believe that it is appropriate that the Dissolution should be set at a level which has not been achieved by any governing party since the Second World War. I fully accept that we departed from the 55 per cent figure because that was clearly not going anywhere. It was roundly criticised in this House and, indeed, in other places. As I say, I make no apology for having listened to that criticism, reflected on it and come forward with a proposal which still maintains that there should be a vote which could trigger a Dissolution, but one where the percentage figure is much higher to the extent that it would not be achieved by one party alone. That is why that first trigger mechanism—the subject matter of this amendment—is there. The two-thirds majority that is proposed is the same majority required for a Dissolution vote in the devolved legislatures, as set out in the relevant legislation.

Parliamentary Voting System and Constituencies Bill

Lord Lamont of Lerwick Excerpts

Wednesday 16th February 2011 Lords Chamber

[Lord Elystan-Morgan]

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, speaks from the very heart of reason and common sense when he says that the real role of this House, in a situation such as this, is to invite the House of Commons to think again. That, however, does not mean that that should happen only once. In the circumstances of this case, as has been so clearly shown by the noble Lord, Lord Lawson, the House of Commons has thought twice about the matter and come to totally different conclusions—although in both cases it happened to reject the proposition that we are discussing. In the first instance, the other place voted by 540 votes against and 31 votes for a threshold in the referendum. Last night, the vote against was carried by about 65 per cent to 70 per cent. The curve is clearly pointing in one direction. But be that as it may, one cannot say that the other place is expressing a consistent and monolithic view on the matter. That does not in any way defeat what the noble and learned Lord, Lord Lloyd, is saying, but to some extent it qualifies it in the special circumstances of this case.

One can summarise the issue in this way. We are dealing here, I think, with a balance of risks. The noble and learned Lord, Lord Wallace, is perfectly correct to say that when you invite the public to partake directly in a decision such as this, there is a risk that Parliament could be seen—in some way or other, without intending it—to be spurning that decision. That is a real risk. No one spoke very much about that risk in 1975 when the referendum was indicative or consultative. I have read the Act and there is clearly no suggestion that that referendum would have been mandatory in any way at all.

I urge noble Lords to consider another risk. A derisory turnout would deprive this vote of any sovereignty or realism as an arbitrement of the people. That is a massive risk. It is very unlikely to happen. It does not matter a great deal which of these proposals one chooses; I tabled one myself which might not have been quite as meritorious as the one now before the House. They are insurances against a failure that is unlikely to happen, but which could happen. A person insures his house against fire not because he knows that it is going to be destroyed—unless he has criminal intentions—or because he believes that it is likely to be destroyed. He does so because he considers that there is a slight chance that it could be destroyed. The more one thinks about something, the less likely one is to be prepared to take even the slightest risk. I am sure that that is our attitude to the families we love. Here the risk is small, but it can be covered by a small, modest and reasonable premium.

[Lord Lamont of Lerwick]

My Lords, I voted for the amendment of the noble Lord, Lord Rooker, the first time, and I intend to vote for it again today. It is true that there was a significant majority in the Commons yesterday, but the result disguised the fact that 20 Conservatives voted for the amendment and 25 abstained. The large majority was accounted for to a considerable extent by the nationalists voting in support of the Government.

I was shocked by the brevity and paucity of the debate. Very few Back-Benchers were able to get in. One point that was made—as it was in this House—was that we have not had thresholds in referendums before, with the exception of the first referendum on Scottish devolution. Of course, we have had very few referendums in this country. Although the first was as long ago as the first referendum on Scottish devolution, they are still something of an innovation. I was struck by the argument made by one Conservative Back-Bencher yesterday that perhaps there should always be a threshold in constitutional referendums, as there is in so many countries of the world. My noble friend Lord Strathclyde mentioned that France does not have this threshold, but it is about the only country in Europe that does not. All other major countries do and, as my noble friend Lord Lawson said, the United States has a different sort of threshold via representatives and state legislatures.

The Minister in the Commons—and my noble and learned friend today—said that a threshold would give people an incentive to vote no. First, that cannot be asserted with absolute clarity. One can argue it both ways. A threshold gives a very positive incentive for people to vote yes if they are worried about the turnout. Secondly, somebody who is really against the proposition would have to worry that the threshold might be met; he would have to know what the turnout would have to be if he was really certain about the situation.

Leaving that aside, it is not unjustified or unfair that if there is great apathy, the proposition should fall. That seems common sense and reasonable. The proposition has been put a number of times that there might be a 38:1 vote that falls just short of the 40 per cent threshold. In Germany, there was a referendum with a majority of 10:1, but because the turnout was only 10 per cent the proposition was rejected—and quite right, too. Constitutional change affects us all; it lays down the rules of the game by which politics is conducted and by which we representatives live; and it should be made only when it is clearly the wish of the people that it should happen. There are great dangers in making major constitutional changes which have uncertain consequences. People who are in favour of AV argue that its effects would be this or that, but the truth is that what would happen is highly unpredictable. I do not believe that we should take this leap into the dark unless there is a proven desire for change supported by the British people giving it their full-hearted consent.

[Lord Tyler]

My Lords, I am not sure whether the noble and learned Lord, Lord Falconer, intends to speak on this. I hope that he does because it would be very important for your Lordships’ House to hear precisely what the attitude of Her Majesty’s Opposition is. He and I have enjoyed each other’s company over many long hours throughout the passage of this Bill. I am not going to give him my views but I should like him to comment on the views of his colleagues. In the other place, Mr Christopher Bryant said:

“I do not agree with the hon. Gentleman about thresholds in referendums because, broadly, they are not a good idea”.—[Official Report, Commons, 2/11/10; col. 846.]

There is nothing there about indicative referendums or definitive referendums but all referendums or referenda. I am disappointed not to see the noble Lord, Lord Lipsey, in his place, because all of us who attended the long hours of Committee and Report very much respect the work that he has done on the Bill. He said just last week on Report,

“I do not support a threshold”,

and, again, there is no definition of what the threshold might be. He went on to say:

“Thresholds are arbitrary, they introduce bias, they distort debate and they have absurd consequences”.—[Official Report, 7/2/11; col. 106.]

Amen to every single one of those. He then argued his point in detail. I very much hope that if the noble and learned Lord, Lord Falconer of Thoroton, is going to respond to this debate, he will explain why he completely disagrees with his noble friend Lord Lipsey, who, as I think he will agree, has studied this Bill more than any of us.

Parliamentary Voting System and Constituencies Bill

Lord Lamont of Lerwick Excerpts

Monday 7th February 2011 Lords Chamber

[Lord Wallace of Tankerness]

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

I thought that the noble and learned Lord, Lord Falconer of Thoroton, was suggesting that there had to be primary legislation, although I am not sure whether I heard him correctly. Amendment 10B deals with that, although I should say something about the difficulties there, because there is still a lack of clarity. In addressing these amendments, I never like to lean too heavily on the technical matters, but there are important technical issues here of which the House should be aware.

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

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

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

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

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

[Lord Lamont of Lerwick]

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

[Lord Falconer of Thoroton]

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

[Lord Wallace of Tankerness]

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

[Lord Lamont of Lerwick]

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

[Lord Wallace of Tankerness]

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

I am aware that concerns have been raised here and elsewhere about the turnout. It is clear that we all want to see high levels of turnout. I believe that this will be the case. The fact that the referendum will be combined with other elections on 5 May will help to increase turnout. The campaigns in the run-up to the referendum will increase public awareness. The work of the Electoral Commission in promoting public awareness about the referendum and the media coverage about the referendum will help. In previous referendums, the turnout has generally been above 50 per cent. It was 64 per cent in the 1975 referendum on the European Community, 60.2 per cent in the Scottish devolution referendum and 50.1 per cent in the Wales referendum in 1997.

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

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

Parliamentary Voting System and Constituencies Bill

Lord Lamont of Lerwick Excerpts

Monday 20th December 2010 Lords Chamber

[Lord McAvoy]

My Lords, the past seven minutes have illustrated to me that people who are obsessed by systems really twist themselves into all sorts of knots because they have a flair for it. My noble friend Lord Rooker certainly has a flair: a flair for hard work, a flair for mastering systems and a flair for coming up with solutions to other people’s systems. Quite frankly, I understood about one-tenth or one-twentieth of what was said, and I cannot fill in a three cross treble line pool or a betting line or whatever it is. I am just not able to do it.

This is what happens when the pro-systems people think that changing the system is the answer to all democracy’s problems. They will twist and turn, go up blind alleys and around corners and all the rest of it. It sounds absolutely brilliant, but despite what my noble friend says, I do not think the average person will understand it.

I have never understood the obsession with PR or AV. The system of first past the post, with whatever imperfections people like my noble friend Lord Campbell-Savours can show in it, is tried, trusted and people understand it. Once you get into different systems, you have unforeseen consequences. It is okay for folk to say “We’ll legislate for that the next time” or “We’ll iron out that glitch in the system”, but all they do is twist themselves into further knots. The elections to the Scottish Parliament had unforeseen consequences because we had the Leader of the SNP, Alex Salmond, wangling away, despite the Minister, the noble and learned Lord, Lord Wallace of Tankerness, being present, I think, is some sort of administrative role. I am sure he will correct me if I am wrong.

Alex Salmond was allowed to put himself at the top of each ballot paper—“Alex Salmond for First Minister”. The situation in Scotland was that the SNP did not win the election. Thanks to the daft list system, it finished up with one MSP more than the Labour Party, which allowed it to claim under a convoluted and twisted voting system that it had somehow won the right for Mr Salmond to be First Minister. Not satisfied with that, in the 2004 election the Labour Party made the mistake of indulging its Liberal partners in the coalition—what was a genuine coalition in Scotland, not a collaboration like we have at the moment. They were on opposite sides of the Chamber. But the Labour Party allowed itself to be blackmailed, cajoled—call it what you like. Almost within hours of the election result, the Labour Party at Holyrood had caved in and given the Liberals PR for local government.

They have still got that system until it is changed. The candidates are listed in alphabetical order. My understanding of it is tangled because I kept back from Holyrood. I did not particularly want to get involved in MSP matters, but it affected the political party I am committed to. As far as I can recall—again the noble Lord, Lord Wallace of Tankerness, will correct me if I am wrong—the Liberals and others, mainly the SNP, blocked the situation whereby there was a suggestion that the political candidates should be put into alphabetical order within party blocks on the ballot paper. I accept that I am vague on this but I blame the Liberals for everything else so I might as well blame them for this. Folk looked at the paper and said, “There is the Labour candidate and that is the Liberal candidate, so that is who I am going to vote for”, instead of starting at the top alphabetically. The debacle of 2007 was confusing. It was caused by exactly the same proponents of systems rather than democracy and appealing to people.

There was a situation in Rutherglen and Hamilton West where a candidate had been a councillor for four years. She was an outstanding candidate, but she had the unfortunate handicap that her surname began with the letter “O”. She was at the bottom of the ballot paper and she lost her seat. Even the local Liberals felt guilty, which was quite an unusual occurrence. They said to her that they were sorry that she was the one to lose out to the system. What happened was that the Labour Party won two of the three seats in that ward. The Labour candidate who won was a new candidate in the area, a good councillor in his former area, and he is now a good councillor in his current area. But he ended up with almost double the votes that the poor candidate with the surname starting with “O” got, and therefore she lost out to, I think, the SNP candidate, who has also turned out to be a good ward councillor.

What happened there was an unforeseen consequence of this fanatical obsession for tinkering with systems. I shall not persuade anyone who is PR or AV-obsessed, in the same way as they will not convince me, and that is fine, but, given the convoluted nature of my noble friend’s amendment—it is like a Gordian knot—I hope the public will copy Alexander and put a sword through it.

I say to your Lordships’ House—not in a partisan sense but because I genuinely feel it—that these systems do no service to the public: they confuse people; they are for the anoraks. There is nothing wrong with that as long as they do not win but, when the anoraks start to win and the amendments come forward for AV and for trying to make AV work, you end up in a mess. I am totally opposed to my noble friend’s amendment.

[Lord Lamont of Lerwick]

The noble Lord, Lord Rooker, has a powerful point, which I shall attempt to put into two sentences. The noble Lord, Lord McAvoy, is not right; this is not complicated. It may be complicated for the people who count the votes—a point which I expect the Minister to comment on—but it is not complicated for the voter. It is the same as it would have been under the system put forward by the Government—you just put your preferences.

The noble Lord said that when the votes are counted they will be given a weighting. This goes to the heart of what is wrong with AV. It is completely wrong that the winner of an election may be determined—and he used the quote from Churchill that I used—by the least worthwhile votes of the least worthwhile candidate. They may well be votes for the BNP or for an extremist party, but it is wrong that in some cases the outcome should be determined by the second preferences of the bottom candidate. The system put forward by the noble Lord, Lord Rooker, for addressing this by weighting the votes according to where they come on the list seems a logical answer. Whether it would be workable, I do not know—no doubt we will be told that it would be too complicated for the counting officer, and that may be so—but it illustrates what is so grotesque and ridiculous about the system that is put forward.

[Lord Campbell-Savours]

My noble friend puts forward an interesting argument. This is an area on which I did some work in 1989 when we were designing the supplementary vote—we called it “weighting”—and a number of the scenarios that we ran through lengthy computer runs were based on a reduced value being given to subsequent votes under the supplementary vote.

I wish to ask my noble friend whether there might be a slight difference between what we were working on and what he was working on. When he moved the amendment, he referred to the value given to these additional preferences being based on the position on the ballot paper. I presume he meant that if a candidate was in seventh position and yet was the third preference of a particular elector, they would have only one-seventh of the value, whereas under the system on which we worked in 1989 they would have one-third of the value. Can my noble friend clarify the position? If he is working on the basis that there are seven candidates and the candidate at the bottom—candidate Peter—is the third preference of the voter but gets one-seventh of the vote for the third preference, I would not be altogether in favour of it. But if it is simply his intention that the first preferences of every voter should have 100 per cent of the value, that second preferences should have 50 per cent, that third preferences should have 33.3 per cent and fourth preferences 25 per cent, there is great value to the amendment.

I understand that a number of academics have also worked on AV and supplementary vote systems since 1989 to establish whether weighting votes in this way would work. The only problem that arises if one does that is that the minority candidates—in this case, the Liberal Democrats say that they would gain more seats under AV—would not gain as many seats. Although AV tends only marginally to be more proportional—it some circumstances, it can be considerably more so—the effect of weighting votes in the way being suggested will be to reduce the likelihood of outsider candidates winning seats.

My noble friend Lord McAvoy was worried about the anoraks. I apologise to him for being one of those rather pathetic creatures, but electoral systems is a particularly interesting subject. It is the sort of thing you go to bed at night thinking about. I welcome the amendment moved by my noble friend and look forward to the response of the Minister.

--- Later in debate ---

[Lord Wallace of Tankerness]

I am not quite sure how to take that. I start by reassuring the House that although I have an interest in electoral systems, I cannot recall ever going to bed thinking about them. I doubt I will even do so tonight.

The noble Lord, Lord Rooker, has put forward a system that would involve some fractional vote. As I read his amendment, at first I thought, as the noble Lord, Lord Campbell-Savours understood it, that the second preference got half of a vote, the third preference got a third of a vote, the fourth preference a quarter of a vote, and so on. However, in the light of the comments the noble Lord made on 8 December, his intention may instead be that where there is no winner in the first round of counting, and a further round of counting is necessary, the value of any votes reallocated from the eliminated candidates to the candidates who are still in the count would be determined by the position the eliminated candidate had in the first round of counting. In other words, if the eliminated candidate finished fifth, the value of the reallocated vote would be one-fifth and so on. The fact that there is that dubiety in the amendment—when I first read it, I took it to mean the same as the noble Lord, Lord Campbell-Savours, obviously did—underlines the complexity that arises.

My noble friend Lord Lamont said that the important thing, in terms of simplicity for the voters, is that they are invited to number their candidates 1, 2, 3 and 4 and, if there is complexity, that is for the counters to work out. If we went down the road proposed by the noble Lord, Lord Rooker, there would be some complexity when we were being interviewed by Jeremy Paxman and we were trying to explain where the one-quarter vote and the one-fifth vote came into it. However, I also take the point that the noble Lords, Lord McAvoy and Lord Lipsey, and others made, that although at one level voters are invited to order their preferences as 1, 2, 3 and 4 so far as they wish, there nevertheless is a requirement that they have some understanding. They do not need to know all the complex details, but they need to have some understanding of how the system will work.

The purpose of the alternative vote with the system that we are proposing is that it gives equal weight to votes that are still in the count. That meets the clear, simple and practical tests that the noble and learned Lord, Lord Falconer, suggested that there should be. The amendment goes against that; it says that some votes should count for less. Where some would say that people “part company”, I would suggest instead that there is a misunderstanding of the position in failing to make the distinction between a preference and a vote, or in somehow suggesting that if, for the sake of argument, the BNP came last and were first to be eliminated, it would be the second preferences of the BNP’s vote that determined the outcome. In fact, it would be the voters’ second preferences that determined it.

It was said that everyone should have two votes and it is not right that, at the second count, someone has only one vote, whereas the person whose second preference has been transferred has two votes. In fact, at the second count, the person who expressed the first preference and who is still leading has a vote again. The vote still counts as a full vote in the second count.

[Lord Lamont of Lerwick]

How can the Minister describe the situation where, let us say, the BNP voters’ second preferences just push the top person over 50 per cent, as “50 per cent of the votes”, when the other preferences of all the other candidates are ignored? That is not 50 per cent in any meaningful sense.

[Lord Wallace of Tankerness]

It is the preferences of the votes allocated to those who are still in the count, as it were. If someone has been eliminated from the count, it is not the party’s vote that is being transferred—it is the voter’s preference that is still being allowed to have a value.