Parliamentary Constituencies Bill

Debate between Lord Tyler and Baroness Hayter of Kentish Town

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Thursday 26th November 2020 Lords Chamber

[Lord Tyler (LD) [V]]

My Lords, before I concentrate on the amendment in the name of the noble Lord, Lord Woolley, I will make some general comments about the Bill. The Government’s response to the improvements made by your Lordships to the Bill, with large majorities, has been profoundly disappointing. However, my disappointment will pale into insignificance when many Conservative MPs discover in a couple of years’ time just how they have been fooled into thinking that their seats will be unaffected by boundary changes. The most careful independent analysis has demonstrated that the Government’s insistence on sticking to the narrow 5% variance in the electoral quota means that some two-thirds of all seats will be changed—all for no real correction of the perceived imbalance. Those MPs will not merely be disappointed; hundreds of Conservative MPs and their constituents will suffer unnecessary disruption. Even more significantly, there will be many blue-on-blue contests for the more winnable new seats in the mid-term of the Parliament, just when the Government is least popular.

As my noble friend Lord Rennard pointed out, Mr Rees-Mogg made no reference to that when, during an inevitably sparsely attended debate, he managed to overturn the improvements passed with large cross-party majorities in your Lordships House. It will be interesting to witness the reaction of his fellow MPs when they realise what he has let them in for. There would be an element of wry amusement for the rest of us if it were not for the avoidable impact on historic, natural and well-established communities. All being well, the political integrity of Cornwall will be protected, but such a desirable outcome will not be guaranteed elsewhere.

This was perhaps the major issue during our debates on the Bill. However, removing some of the other improvements may in due course also be recognised as counterproductive and constitutionally defective. I fear we may live to regret that the House could not endorse the proper concerns expressed by the noble and learned Lord, Lord Thomas, and my noble friend Lord Beith.

I and my colleagues are especially pleased that the noble Lord, Lord Woolley, from the Cross Benches, has tabled his amendment to the Motion on the vital issue of electoral registration. Had this been at a different stage of the Bill, a quartet of senior Members from all parts of the House would have signed it. This is underlined by the strength of supporting speeches on all sides this afternoon. It is particularly appropriate that the noble Lord should lead on this. He has been a powerful champion and campaigner in non-party efforts to get more young people—especially from BAME communities and through Operation Black Vote—to take up their civic responsibilities and rights by registering. He gave evidence on the registration issue to the Select Committee of this House, chaired by our much-missed colleague Lord Shutt of Greetland.

At this point I should say how much I and my noble friends on the Liberal Democrat Benches appreciate the tributes to David from all sides during the Commons debate and again this afternoon in your Lordships’ House. After a lifetime of principled devotion to this cause, his sincerity and clear advocacy of these practical steps towards a more comprehensive democracy shone through during his successful speech on Report.

As the noble Lord, Lord Woolley, and others have emphasised, this modest proposal would give practical effect to the aims to which Ministers have committed themselves. Without this kind of simple administrative adjustment, there is a real danger that the missing millions of unregistered young citizens will remain outside the system.

Ministers have reminded us that registering to vote is a civic duty. Unlike voting, which is entirely voluntary in Britain, co-operating with the registration process is a legal obligation unless the eligible citizen has a specific reason to be exempted. As my noble friend Lord Rennard reminded the House, the register is used to select for jury service. That is an important civic responsibility, which is not entirely voluntary. Failure to co-operate can lead to a fine of £1,000.

This proposal is not a form of automatic registration. Despite the support of the noble Lord, Lord Cormack, it is not on the table for decision today. However, if the Government continue to block sensible ways to maximise registration, it could be argued that they are in a sense condoning law-breaking.

It has been clearly indicated that many of your Lordships on all sides of House wish to support this simple improvement. Therefore, if the noble Lord, Lord Woolley, is not able to move his Motion E1 to propose Amendment 8B in lieu, I should be happy to do so and to seek the opinion of the House at the appropriate moment.

I again pay tribute to all who have helped to ensure that your Lordships’ House has fulfilled its proper scrutiny function. This includes the Minister, the noble Lord, Lord True. As I have said previously, that is the fundamental right and responsibility of this House, not least when MPs and the governing party may need the corrective of relatively dispassionate, non-partisan and independent scrutiny on electoral law. We do not have the same special interests to declare as they have, which could take them into very unfortunate realm of special pleading, as the noble and learned Lord, Lord Thomas, made apparent.

Finally, I put on record on behalf of the Liberal Democrats, particularly all those who have worked on the Bill, our thanks and admiration for all those who have assisted the House, not least our excellent legislation adviser, Sarah Pughe. I thank the two Ministers and their team, the Public Bill Office and other officials of the House, as well as Members from all sides who value the integrity of the democratic process. I add thanks to those academic experts who gave us all such well-researched, non-partisan advice through all stages of the Bill.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, this has been a useful debate on some important amendments, which were agreed by your Lordships’ House but which, in their complete lack of wisdom, the Government chose to overturn in the Commons—and two of which, rightly, have merited special attention today.

I am grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Woolley of Woodford, for tabling their counter- propositions. The former made a persuasive and constitutionally important case, to which I will return.

Before doing so, I would like to add my tribute to the late Lord Shutt of Greetland. His contributions on 8 October were, sadly, his last in this Chamber. His untimely death was of course a shock, but it is somehow fitting that that last speech was on expanding voter registration and encouraging people to engage in the democratic process—a cause which, as we have heard, he had championed for years, and one which the Government should take up with more than just warm words. If the future of our democracy is to mean anything, it will be through the full involvement of all our citizens in elections, be they at local, regional or national level.

The noble Lord, Lord Cormack, made reference to “no representation without taxation”. I very gently point out that his party wants to extend representation without taxation by extending the right to vote to people who left this country maybe 40 or 50 years ago and have long since ceased to pay tax. But that is not on the agenda today.

I am saddened, although not surprised, by the Government’s rejection of all five amendments. Far from making the Government’s life difficult, they sought to address genuine concerns in a constructive manner. I particularly regret the lack of a bit of greater tolerance, which would, as the noble Lord, Lord Tyler, said, have helped even Conservative MPs—but it would particularly have helped those who are drawing lines round the valleys and mountains of Wales to have seats that had coherence for the Member seeking to represent them.

However, it is clear that there is not a mood for compromise, regardless of the merit of our arguments. To borrow a famous phrase, you can lead the Minister towards a sensible position but, unfortunately, you cannot make him adopt it—or, at least, not now.

One of the major arguments that we had with the coalition Government, which of course included the Liberal Democrats as well as the Minister’s own party, was over the reduction in the number of MPs from 650 to 600, despite the population having grown and despite almost the same number being put into your Lordships’ unelected House at the same time. We warned the two parties then and we voted against them, but they were determined. So I am delighted that they have now seen the sense of our arguments. Welcome to our viewpoint—and perhaps in due course they will see the good sense behind Amendments 1, 2 and 7.

In particular, given the cogent arguments, and the concern of this House, we had hoped in all sincerity to see some movement on the amendment proposed by the noble and learned Lord, Lord Thomas of Cwmgiedd. Given that Parliament will no longer have any backstop role over boundaries, the independence of commissions —which will no longer be advisory; they will effectively be law-makers—is even more vital. The noble and learned Lord sought to depoliticise, and therefore legitimise, the appointments process.

The Government’s position is a little concerning. It is true that some might be comforted by the departure of certain personnel from No. 10; nevertheless, the only true guarantee of independence is a transparent process guaranteed in law. Indeed, dealing, as we are, with this issue just at this moment, or, in the words of the noble and learned Lord, Lord Thomas, in the times in which we live, when others such as Peter Riddell and the noble Lord, Lord Evans, have questioned how supposedly independent appointments are actually made, a very clear signal in this Motion that no elected politician would have any say would have been warmly welcomed.

Parliamentary Constituencies Bill

Debate between Lord Tyler and Baroness Hayter of Kentish Town

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Thursday 8th October 2020 Lords Chamber

[Lord Tyler (LD) [V]]

My Lords, the noble Lord, Lord Hayward, has brought some very important, practical questions to your Lordships’ House this afternoon. I hope the Minister will be able to reply to them. The noble Lord speaks with a great deal of experience and expertise on these issues. It is significant that he has done the research to spot some potential difficulties.

In the meantime, I am full of admiration for the noble Lord, Lord Young of Cookham. We have known each other for many years and I have a huge amount of respect for his experience of the way in which ministries, Whitehall generally and the House of Commons and House of Lords operate. He has almost unique experience. It is interesting that so many distinguished former MPs and Ministers have contributed to the development of this amendment at all stages, some of whom spoke again this afternoon. I wonder whether the noble Lord, Lord Young, who must be one of the best experts to tell us about what happens behind the scenes, is wholly confident that the amendments he is now promoting, as he said, put these matters out of reach of political mischief. If they are totally out of reach of political mischief, we will be all be relieved; if he is confident of that, I take his word as very persuasive.

However, I take seriously the issues originally raised by my noble friend Lord Campbell of Pittenweem and then referred to by the noble Lords, Lord Grocott and Lord Cormack—quite a trio. They were asking what exactly the exceptional circumstances were that would permit any return to a more lackadaisical approach to the timing of the tabling of these proposals from the Boundary Commissions. If the Boundary Commissions are, as the noble Lord, Lord Hayward, just said, absolutely specific and there is no room for manoeuvre for Ministers or the House of Commons, surely it should be a much smoother operation than is implied here, even in exceptional circumstances. I hope the Minister will explain in his response exactly what he has in mind.

We should pay tribute to the Minister. It is always a mark of a good Minister and a listening Government when there is a move between Committee and Report. There has been a move; the Government have accepted a change here and we should all welcome that. It is a sign of a Government who are prepared to think again, and that must be healthy.

It also indicates that this Bill is being improved in your Lordships’ House. I know there were some Conservative Members who thought it was rather inappropriate for the House of Lords to make any changes to a Bill that dealt specifically with elections to the other place. As a former Member of Parliament, I take exactly the opposite view; after all, there is a degree of self-interest at the other end of the corridor which we hope at this end we are largely able to avoid. We have a greater degree of impartiality in that respect.

As a result of two Divisions and likely support for this amendment, we now have some changes that will undoubtedly have to be considered in the other place. It is very healthy that MPs be asked to think again about these issues. As was mentioned in a previous debate, there is already substantial Conservative Back-Bench rethinking on the important issues of the 7.5% quota tolerance in preference to 5% and on the 10-year review period. I therefore hope that the fact that there is now government support for a government change to their Bill will be taken as an indication that our role in this House is to make sure that this Bill is improved before it goes back to the other place.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we do not need to detain the House on an amendment where everything has been said and has been said by everyone. I simply applaud the Government, as we have just heard, for seeing sense on this amendment, which answers one of the two fundamental issues which concerned us about moving from a final parliamentary sign-off towards automaticity—that is, the ability of the Executive to delay the implementation of the Boundary Commissions’ plans, despite having handed effective authority to the commissions to put those plans into law. Without this amendment, no one, neither the commissioners nor Parliament, could have forced the Government’s hand had they chosen to delay.

I retain one concern, which is that retained by the guinea pig—not the guinea pig, the noble Lord, Lord Hayward, who obviously gets his feeds on automaticity even faster than I can. The issue he raised about what might happen should the Government decide to call an election during that four-month period should continue to concern us.

I had assumed that “exceptional circumstances” meant that, but that in itself is quite worrying. As my noble friend Lord Grocott and the noble Lord, Lord Cormack, have said, we need more explanation about what exceptional circumstances are—putting aside Covid because, as my noble friend said, that would be dealt with in another way. Given that the Government are committed to repealing the Fixed-term Parliaments Act, which puts the decision back into No. 10, there must remain a worry that a difficult boundary review could somehow be circumvented. The Minister needs to allay these fears which, as he has heard, are from across the House.

The issue of the time cap introduced by this amendment was a major concern to us. It was not the major one for the Constitution Committee—we will come on to that shortly in Amendment 11, about moving to automaticity—but it was certainly one of our two major concerns. The fact that the Government have accepted and even put their name to the amendment means that it would be churlish for me not to say that we support it too.

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[Baroness Hayter of Kentish Town (Lab)]

My Lords, technically I rise to move Amendment 12, in the name of my noble friend Lord Lennie and the noble Baroness, Lady Finlay, but I must say that I will withdraw it at the end of this group. However, I will move, and shall now speak to, Amendment 13, in the name of my noble friends Lord Lennie and Lord Grocott. It is on that amendment that we will seek to divide the House.

Everything that we heard in Committee made it clear that the change in the 2011 Act—setting such a very low tolerance level within which the boundary commissioners could do their work—will mean that communities, ward boundaries, rivers, lakes, mountains and motorways will have to be crossed to engineer exactly the right mathematical numbers. Those final boundary moves—sometimes mere tweaks—to reach the required numbers make even less sense when set against the number of people not even on the electoral roll.

It is estimated that some 20% of eligible voters are not registered, which is, on average, about 10,000 per constituency; the Government are obsessed with the last 3,000 or 4,000. I remind the Minister that this is a smaller number than when there were to be 600 constituencies under the 2011 Act. The average number per constituency was therefore larger, so the 5% tolerance then gave a larger number of electors for the margin in which the Boundary Commissions work, but the very welcome return to 650 Members reduces the average number per constituency and therefore reduces the 5% either way within which the Boundary Commissions can do their work. Therefore, the last 3,000 or 4,000 the Government are so wedded to is actually very small compared with the about 10,000 per constituency who are not even on the electoral roll. Indeed, perhaps if the Government could spend as much energy on getting those 10,000 on to the register, any talk of democratic equivalence and fair votes would have a little more resonance.

The resulting splitting of communities that 5% requires also flies in the face of the reality—as we heard in the debate on today’s first group of amendments—that MPs represent areas, not just individuals. Of course, areas do not vote, but it means that MPs can best represent those individuals if they understand and have a good relationship with the organisations within those constituencies. Therefore, breaking through, for example, a school’s catchment area—sometimes for small numbers to get the percentage right—means that issues of education could pull in more than just the MP in whose seat the school is located, because the narrowness of the margin does not allow for the catchment area to be included in that seat. That will sometimes happen at the borders of constituencies, but to make it happen for a mathematical formula seems particularly unhelpful.

It can also be argued that it is not good for accountability as it does not help an MP represent the totality of an area. Communities have natural boundaries and sometimes they will have to be cut through, as I say, but we should minimise that by giving the Boundary Commissions a bit more space to allow them to respond to local circumstances.

The very slight change to an extra 2.5% either way would give the commissions an extra bit of leeway to respond to travel patterns, geographical community or the needs of an area without having the knock-on or ripple effects on neighbouring seats so that again, and sometimes for no good reason, a neighbouring community is impacted just because the numbers do not quite fit in the first seat.

This will be of particular help in rural areas or, I have to say again, communities in Wales where the mountains and valleys impose geographical constraints which perhaps are not particularly well understood in SW1, or indeed some other conurbations. Amendment 13 would make the margin 5,500 rather than 3,500 and provide some helpful flexibility—if it is needed; it does not have to be used—so that those who are holding the pencil can draw boundaries that really do represent communities and which allow people to have a community-based relationship with their Member of Parliament. I beg to move.

[Lord Tyler (LD) [V]]

My Lords, our own amendment in this group is Amendment 14 in my name and that of my noble friend Lord Rennard, but I will refer also to others in this group which offer slightly different solutions to the fundamental problem with this Bill that all the signatories agree is so apparent. As Members of your Lordships’ House will have observed, we have modified our suggested solution in the spirit of compromise appropriate to Report. We had previously recommended a basic quota variance of 8%, but we took careful note of the developing consensus in Grand Committee, and we now endorse 7.5% as providing the essential and reasonable flexibility that so many Members are seeking and to which the noble Baroness has just referred.

From Second Reading right through our discussions, a clear majority of contributors have expressed concern about the very narrow 5% tolerance currently in the Bill. As has already been indicated, that concern is now echoed across the House of Commons. We must all hope that the Government are also determined to reach a sensible consensus by compromising on this figure. They have nothing to lose by doing so. As the forensic academic analysis by the late Professor Johnston and his colleagues has demonstrated so conclusively, the perceived electoral imbalance between Conservative and Labour constituencies would not be especially adversely affected by this simple and flexible adjustment. What would be changed would be the widespread disruption of so many constituency boundaries. Those newly elected Conservative MPs, especially from seats hitherto not held by the party in the north and the Midlands, may now recognise the attraction of a more measured approach in this forthcoming review. They may also be especially apprehensive about potential “blue on blue” contests. This was the core of the evidence presented to the Commons Bill Committee.

We take very seriously the point just made by the noble Baroness about the number of people who are currently eligible to be on the register but who are not there. We believe that in the months of the process of the review, this may be improved; in which case, of course, there might be quite considerable increases in particular constituencies. It is also true that if the Government eventually pursue their intention of increasing the franchise to those who have moved abroad, that too could mean a considerable difference during the actual process of the review. If, for example, anyone decides to move permanently from the London area to the Ancona area in the east of Italy and they wanted to retain their voting rights after 15 years, that could make a major difference to one of the boroughs in London. That may be true of other areas and for other individuals as well.

Meanwhile there is common ground across your Lordships’ House that the insistence on the 5% variance straitjacket, imposed on the four Boundary Commissions, will result in more changes with 650 constituencies than were proposed with the previously proposed 600 constituencies; then more regular changes for more constituencies at more reviews; and there would be more consequent knock-on changes even to adjoining constituencies which are themselves within the limits. Incumbents who believed themselves to be safe would suddenly find that they are far from it. There would also be more disruption of historic, geographically and socially cohesive communities. Finally, there would be more disconnection between MPs, councillors and the public at more regular intervals than is either necessary or desirable.

Parliamentary Constituencies Bill

Debate between Lord Tyler and Baroness Hayter of Kentish Town

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 8th September 2020 Grand Committee

[Lord Tyler (LD) [V]]

My Lords, I very much agree with what the noble and learned Lord, Lord Morris, has just said. It is remarkable that the majority of those participating in this debate are former MPs with extensive and distinguished constituency representation behind them. That comes through in the way in which they have approached this issue.

Even more significant, perhaps, is the experience of the former Ministers. If they are sceptical about what exactly will happen behind the scenes if there is the sort of delay that could happen and has happened in the past, we should take that very seriously. As my noble friend Lord Campbell of Pittenweem said, “reasonably practicable” is a subjective judgment and could therefore be challenged at judicial review. The fact that these former Ministers are sceptical, perhaps even slightly cynical, about what could happen behind the scenes is extremely significant.

The noble Lord, Lord Young of Cookham, whom I have known for a number of years, has had extraordinary ministerial experience; he must be one of the longest-serving Ministers in the whole of our Parliament. I venture to suggest that he probably has had more experience at close hand of ministerial or even Civil Service foot-dragging than anybody who was giving him advice in the meeting to which he referred. I therefore take far more seriously what he says about the potential dangers of unlimited delay than those who sought to persuade him against his proposed amendment.

When the noble Lord spoke at Second Reading, I thought that there was a general mood on all sides of the House, not least because of that experience, that he was on to something extremely important and that this provision was one of the few serious weaknesses in terms of potential ministerial and partisan interference. I therefore take what he says today very seriously indeed.

There is only one way in which I perhaps take a slightly different view. Despite the fact that the Minister at Second Reading was reading his brief religiously—and loyally to those who brief him in the Cabinet Office—I thought that his body language was rather more sympathetic to the points being made by the noble Lord, Lord Young, and the rest of us. Therefore, I am more hopeful and optimistic that the Government’s eventual conclusion will be that they cannot possibly combine automaticity with sticking to this bit of no automaticity in terms of the speed with which Ministers have to bring the order to the House.

I also believe that there is a strong argument, which the noble Lord, Lord Young, enunciated and has been repeated elsewhere, about what exactly would happen if there is a long delay. What exactly would people do in whatever department would think about these matters? What would they be up to? After all, if the Bill goes through in its current form, all they would be looking at are the firm, strong recommendations of the four Boundary Commissions. How could they spend months on that? Incidentally, that is my only concern about the difference between the six weeks recommended by the noble Lord, Lord Cormack, and the 12 or so weeks recommended by the noble Lord, Lord Young, and others. I am not sure what Ministers might do in those second six weeks. There may be a strong argument for sticking firmly to the shorter period if, as has been suggested by people with a great deal more experience than me, there really is not that much to do.

I strongly recommend the well-briefed academic evidence given by the late Professor Ron Johnston—we are still missing him from this debate and these discussions—and his fellow academics. He pointed out just how simple in practice the process becomes at that stage; that was endorsed by the noble Lord, Lord Hayward, with his expertise and experience.

There is a simple solution to the problem of potential mistakes in the modification arrangements. Again, I take very seriously the experience of the noble Lord, Lord Blencathra, from the DPRR, on which I used to serve under his excellent chairmanship. Again, we are looking at an area where the Executive cannot be expected to take a long period to consider recommendations from the Boundary Commissions that will be so firm, detailed and complete.

There is an open-and-shut case for a firm limit on the period during which a delay could be permitted at the hands of bureaucrats or Ministers. In the words that have already echoed around the Grand Committee today, automaticity must lead to one or other of these sets of amendments. I hope that the Government will accept them.

[Baroness Hayter of Kentish Town (Lab) [V]]

My Lords, as I made clear in the debate on the first group of amendments, we do not support the automaticity of Boundary Commission recommendations becoming law with no parliamentary intervention. In an ideal world, Clause 2 would not be in the Bill. Nevertheless, we share in the sentiments expressed by the noble Lord, Lord Cormack, and other speakers, and the worry that some decision is still left with the Executive while none is with Parliament. If this clause is to be in the Bill, clearly, these amendments are very welcome.

This is important not simply for parliamentarians but for Boundary Commissioners. In knowing that they rather than Parliament are making law, it will be important for them to be confident as they assume this new responsibility that the Government will not play games with any delay—should, for example, an early election be on the cards, given that we hear that the Fixed-term Parliaments Act is to be removed, thus leaving the calling of an election back in the hands of the Prime Minister. Incidentally, my noble friend Lord McNicol is, like me, not a former MP, but along with others, we have been involved from a party position. As he said, if we can remove Parliament’s ability to discuss, we should remove the Executive’s ability to delay.

The noble Lord, Lord Cormack, said that we need to curb the ultimate power of the Executive. Hear, hear to that. Six weeks sounds better to me. If it is going to be automatic, then automatic it should be. Furthermore, if the noble Lord, Lord Young of Cookham, says that it is doable within a time limit, my judgment is that it is doable within a time limit. He knows whereof he speaks, along with the noble Lord, Lord Hayward, my noble friend Lord McNicol, and other former Chief and Deputy Chief Whips.

I confess that my eyebrows rose just a little at the protestations of the noble Lord, Lord Blencathra, as to the pristine, impeccable holiness of the Conservative Party. Maybe he needs reminding about Dame Shirley Porter and Westminster. I will go no further, but I think he overegged that particular pudding. If we are to have automaticity, clearly this delay must not be in the hands of the Government.

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[Baroness Hayter of Kentish Town (Lab) [V]]

My Lords, a key part of the last boundaries Act—parts of which this Bill seeks to amend—was to make the numerical size of constituencies more equal. It was based on an exact number of electors rather than, for example, residents, where the old method allowed some flexibility. As we heard from my noble friends Lord Grocott, Lord Foulkes and Lord Blunkett, it is potentially residents who cannot be in surgeries rather than those on the electoral roll. The focus in the current boundaries Act takes the numerical equality, if you like, of voters as central to the new constituency boundaries.

Even if one agrees with that focus on numbers—and I have my doubts about this overarching focus on it—it could be undermined either by population moves or, in the instance of this amendment, by an extension of the franchise to 16 and 17 year-olds. That is a policy change which we would obviously like to see but, should it happen, it is possible that it could undermine the concentration on arithmetic equality, given the unequal distribution of age groups across the country. As we know, we have certain constituencies with an older age profile, which would therefore be overrepresented if there was a switch in the franchise.

I recognise that we have yet to persuade the Government to alter the franchise, but it would be useful to see the impact of any such change on constituency boundaries. This simple and short amendment simply asks the Boundary Commission to look at extending the franchise to 16 and 17 year-olds and at what impact, if any, it would have on the distribution of seats. I beg to move.

[Lord Tyler (LD) [V]]

My Lords, I am delighted to support the noble Baroness, Lady Hayter, on this amendment. I am one of its signatories and it is a cross-party amendment. We have to start to think in firm terms about providing for the eventual, inevitable extension of the vote for parliamentary elections to 16 and 17 year-olds throughout the United Kingdom. The Grand Committee should think in terms of what is likely to happen over the next few years by looking back at what has been happening in recent years on this issue.

I and my Liberal Democrat colleagues have long campaigned for this reform, convinced as we are that this age group have shown themselves to be quite mature, and responsible enough to undertake this civic duty. It would be only sensible, right and responsible for us to start to take into account this potential change because, of course, the general election is not likely to take place until 2024, for the reasons admirably advanced by the noble Lord, Lord Lipsey, in a previous debate. It would be sensible for us to take that into account now, together with the greater flexibility that will undoubtedly be required to improve what is said on that matter in the Bill.

We were delighted when our Ministers in the coalition Government persuaded the Conservatives to permit this group to vote in the Scottish referendum in 2014. We were even more delighted when that group took the issues of that campaign so seriously, registered and voted in substantial numbers and, as far as could be ascertained after the poll, demonstrated their maturity by the way they voted. It seems that they were rather more responsible on all counts than some much older cohorts.

When it came to the 2015 debates in your Lordships’ House on the arrangements for the EU referendum, Members on all sides were able to refer to this successful experiment. We were no longer advocating on the basis of theory, however principled; we had practical evidence to support our case. As with Scotland, the argument that the referendum could create huge change which would have vast consequences for many generations to come and which, unlike an election, might not be easily reversed was recognised as persuasive. Prime Minister Cameron appeared to accept that argument. Younger citizens could expect to have to live with those consequences for much longer than many here in your Lordships’ House.

To my embarrassment, or perhaps even horror, Hansard apparently records that I made no fewer than 28 contributions to those debates in support of the proposition. However, I have checked and some of them were very brief. But I found that I was a signatory to the successful amendment on 18 November 2015 which sought to extend the franchise to this group. It was passed by your Lordships’ House by 293 votes to 211, with 91 Liberal Democrat Peers and 155 Labour Peers in support.

European Union (Withdrawal Agreement) Bill

Debate between Lord Tyler and Baroness Hayter of Kentish Town

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town]

In moving Amendment 46 I will speak to the other amendments in the group, which essentially have the same effect. Under the Bill there will be no extra sifting procedure of the sort that we established in the 2018 Act, which was able to act as a further check on the Brexit statutory instruments that were laid using the negative procedure. Quite a large number of instruments were recommended for upgrade to the affirmative procedure, and the process helped to identify a variety of drafting errors that could otherwise have left the statute book inoperable in the event of a no-deal Brexit.

Our thoughtful and highly experienced Delegated Powers and Regulatory Reform Committee has recommended a sifting mechanism for this Bill along the lines of the 2018 Act. It would be able to recommend an upgrade from the negative to the affirmative procedure where the regulations were seen to be significant. That recommendation has been endorsed by our Constitution Committee, given the importance and potential breadth of powers in the Bill. It has also recommended that the sifting mechanism should be added as part of parliamentary scrutiny. In particular, the committee concurs with the recommendation of the DPRRC that the powers in Part 1, which are not accompanied by a sunset provision and are thus particularly important, should be subject to a sifting mechanism, as well as those in Part 3 and for the Clause 18 powers.

Rather than duplicate unnecessarily the provisions laid out in the 2018 Act, the amendments tabled in my name seek to make clear that the relevant delegated powers would be subject to these provisions. Given that we are in Committee, I hope that the Minister will understand that any issues in the drafting are the result of not having gone through all detail before, and that he will focus instead on the principle that the wide-ranging powers allowed for under the current Bill should be subject to a greater level of scrutiny. That, as I say, is not only for the sake of Parliament but to protect the Government from any errors.

I know that there may be some noble Lords who will probably disagree, having spent many a long afternoon in the Moses Room, but actually the sifting mechanism in the 2018 Act did work really well, and I think that that was the view of Ministers as well as those doing the scrutiny. Given that, it is slightly hard to see why the Government have not thought to repeat that process in this Bill, particularly given that it has been recommended by the DPRRC and the Constitution Committee. I beg to move.

[Lord Tyler (LD)]

My Lords, my name is attached to the amendments in the name of the noble Baroness, and in addition to those I will speak to Amendment 66A, which is on a more specific question. I endorse entirely what the noble Baroness said. I find it extremely difficult to understand what change of circumstance has made it necessary to depart from the very effective system that we produced in 2018 for sifting. At that stage I was a member of the Delegated Powers and Regulatory Reform Committee and we were strongly in favour of the process because it did a good job.

I noticed just now that the noble Lord, Lord Duncan, who sadly is not in his place, when responding I think to the noble Lord, Lord Whitty, referred to “a change of regime” between the Administration of Mrs May and Mr Johnson. Regime change has a certain curious association in our minds, but if that is the real reason why there has been a change between 2018 and 2019 in the treatment of these matters, then of course that has wider significance because it is well known that the new Government take what I should perhaps call a more cavalier attitude to the role of Parliament, not least because they have a large majority in the other place.

I was contemplating just now the final part of Clause 38, with which my noble friend Lord Wallace was dealing. I did not intervene in the debate because it was so erudite that it went way above my head, but I thought that the final sentence—

“nothing in this Act derogates from the sovereignty of the Parliament of the United Kingdom”—

was a bit optimistic. Frankly, there are all sorts of relatively small items that refer to the role of Parliament, which is why the sifting issue comes in. It is rather like arriving at the pearly gates and thinking that it would somehow ease one’s passage to say to St Peter, “Look, I know I’ve committed all sorts of sins, but they’re all relatively minor, and in any case I went on record just before I arrived here and swore that I was actually very much against sin.” I notice we have two representatives of my church here so I hope that they will endorse that. It is really what this clause is saying: “Take no notice of the fact that throughout the Bill there are all sorts of examples where the Government are not really giving Parliament its proper role. Do not worry about it because we say that we are against that.” I find that not very consoling. The sifting mechanism is well tried. It has worked and we find it very difficult to understand why it has been ruled out in these circumstances.

European Union (Withdrawal Agreement) Bill

Debate between Lord Tyler and Baroness Hayter of Kentish Town

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

I think we have got here earlier than some other noble Lords anticipated, which is why I may be speaking a bit slowly. They still have not arrived, so I give in—no, it is all right. Help is arriving at this moment. Amendment 12 stands in my name as well as those of the noble Lord, Lord Tyler, and the noble Viscount, Lord Hailsham. I shall also speak to Amendment 15, which is also in my name and those of the noble Lord, Lord Beith, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

Clause 21 is, as one of our committees describes it, a major clause adding significant new provision for Ministers to make regulations to implement the withdrawal agreement’s Irish/Northern Irish protocol, including

“any provision that could be made by an Act of Parliament,”

including modifying the 2018 Act. Unsurprisingly, our Delegated Powers and Regulatory Reform Committee, in its report of 9 January, therefore describes this provision as,

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act in addition to creating a new legal regime that would otherwise require,”

an Act of Parliament. Amendment 12 would remove the ability in the current Bill to amend the 2018 EU withdrawal Act by statutory instrument in connection with the protocol. Amendment 15 would place a series of limitations on the regulation-making powers allowed for in this clause.

First, Amendment 12 would, as I say, remove the ability to amend the 2018 Act. It is both unusual and unexplained as to why the Government want to give themselves a power, with only the most cursory scrutiny, to amend primary legislation. I know certain newspapers took umbrage this morning at my warnings to the Government yesterday against ramming through legislation even if it contains deficiencies, and of them being unwilling to listen to reason. But here we appear to have a provision almost certainly written as a failsafe; I think the Government know that they will almost certainly have got things wrong. This is not a way to make good law. We do not like it and it should come out.

Amendment 15 is needed as, for unexplained reasons, there are no restrictions on the scope of the Henry VIII powers in respect of implementing the Northern Ireland protocol. That is in contrast to all the other Henry VIII powers in the 2018 Act and elsewhere in this very Bill—for example, in Clause 18. Amendment 15 would add the same restrictions as are in the 2018 Act, and indeed elsewhere in the Bill, on making relevant new criminal offences, setting up public bodies or imposing fees and taxation by secondary legislation. Given what is elsewhere in the Bill and in the earlier Act, I hope that the Government will accept these changes.

Crucially, Amendment 15 would also ensure that neither the Human Rights Act nor the devolution Acts could be amended or repealed by secondary legislation. It is probably the view of the whole House that changes to fundamental rights should be made only by Parliament through primary legislation, not by Ministers through secondary legislation. As the noble and learned Lord, Lord Thomas of Cwmgiedd, whom I am glad to see in his place, said yesterday, it would be,

“ a terrible precedent … if we altered the devolution legislation other than by primary legislation”.—[Official Report, 13/1/20; col. 532.]

Unsurprisingly, the Welsh Government particularly support proposed new paragraph (f) in Amendment 15, with its restriction to prevent UK Ministers using such powers as are allowed in this clause to amend the statutes that embed the devolution settlements. There is already a perfectly viable way of amending the Welsh statutes without primary legislation, where the National Assembly itself agrees to the change: through a Section 109 Order in Council.

Why have the Government written themselves these powers in Clause 21? Should the Government refuse to accept Amendment 15, particularly its proposed new paragraph (f), they will by that refusal feed the suspicion that they want this power to make changes to devolution settlements even where the National Assembly and the Welsh Government are opposed to such changes. I therefore trust that the Minister will accept this amendment and, today, rule out any chance of the Government using these powers to amend the Government of Wales Act without the consent of the National Assembly. I beg to move.

[Lord Tyler (LD)]

My Lords, I wish to speak to Amendment 12, to which my name is attached. This is quite different from most of the other amendments which have come before the Committee. It is in no sense political; it is a matter of process, not politics. Its significance lies only in the clause’s defiance of our normal parliamentary processes and the danger of establishing a very unfortunate precedent. There are two consequences: first, this modest improvement cannot be characterised as holding the Bill up; and, secondly, it cannot be said to be a wrecking amendment because it is nothing of the sort.

I am disappointed that the noble Lord, Lord Cormack, is no longer in his place—he was there just a few moments ago—because I listened carefully to his speech yesterday and I was struck by a point he made which then seemed to be followed by a number of noble Lords, albeit a small minority. I refer to the point he made about the Salisbury-Addison convention, which was agreed between the leader of a small group of Labour Government Peers and a large group of hereditary Conservative Opposition Peers after the 1945 election. The name is significant because it was a deal made between two individuals appropriate to those precise circumstances. It has limited relevance now, as was so comprehensively analysed by the 2006 Joint Committee on Conventions, on which I served.

That committee reiterated:

“In the House of Lords: A manifesto Bill is accorded a Second Reading; A manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the bill; and A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.”


In passing, I note that the noble Lord, Lord Strathclyde, the then Leader of the Opposition, was on record as stating that the doctrine needed to be re-examined:

“Election promises can be vague and easily manipulated by governments, who reserve the right to jettison manifesto promises if things change. If governments can have the right, why cannot Parliaments too have a say on circumstances as they change?”—[Official Report, 24/1/01; col. 294.]


Similarly, the Joint Committee took a great deal of evidence on the issue of secondary legislation. It was told by all parties that the Salisbury-Addison agreement did not apply. In relation to this clause and this protocol, we therefore have to conclude that Salisbury-Addison is totally irrelevant.

This is not a wrecking amendment. The provision was not spelt out in the manifesto, and in any case secondary legislation was specifically excluded from the convention—and that was just a bilateral agreement excluding other parties and the Cross-Benchers and was overtaken by events precisely as Lord Strathclyde pointed out.

I emphasise these points for two reasons. First, yesterday a few noble Lords seemed to be dangerously near to suggesting that your Lordships’ House should forgo its proper constitutional role in scrutinising this Bill, not least in relation to its significance in terms of the relationship between the Executive and Parliament. Indeed, one or two noble Lords seemed to be on the verge of bullying us with threats of reform to this House. As a very long-term advocate of reform, I say, “Bring it on”. The 2012 reform Bill, with which I was much involved, received a massive majority of 338 in the Commons with all parties giving it majority support—so it is over to you, Mr Cummings. Indeed, I would repeat Mr Clint Eastwood’s remark: “Go ahead, punk, make my day.”

Secondly, we must distinguish between on the one hand this amendment and the few others which seek to instil proper parliamentary process, avoiding precedents which future Governments could exploit, with more substantial political changes to the Bill on the other.