Wales Bill

Lord Thomas of Gresford Excerpts

Tuesday 11th November 2014 Lords Chamber

[Lord Forsyth of Drumlean]

I entirely accept that. Incidentally, I thought that the report that was produced by the royal commission had a great deal of merit in it, but it failed because it did not carry a consensus down the Corridor. Members of the House of Commons realised that they would be threatened by the changes that were proposed in this House. I am not suggesting for a moment that a royal commission, a constitutional convention or whatever body we set up will come up with the answers. I am suggesting that we should make sure that we consider these matters in the round, so that all the arguments are understood. Then it is for Parliament to decide. Parliament should not be deciding these matters in a kind of cheese-paring way without looking at the knock-on consequences—sorry, if I am mixing my metaphors.

I was assured from the Front Bench that giving the Scottish Parliament the right to decide the franchise for the referendum would not be a precedent and would not result in pressure for change elsewhere. That assurance has not lasted six months. I entirely agree with the noble Lord that the best way is to proceed incrementally. In doing so, however, it is a good idea to know in which direction you are setting forth and where you are going to end up.

[Lord Thomas of Gresford (LD)]

My Lords, the most striking feature of the Scottish referendum was that there was an 86% turnout and that the political life of Scotland was energised. Those of us who followed the debate in Scotland closely were aware of the contribution that was made by young people—16 and 17 year-olds—to the debate. As one looked at how the campaigns were developing, there were arguments breaking out within families, between young and old, and between friends. In the debates on television, young people were considering very carefully the issues that were put before them. They were articulate. When one looks at the result, they voted in a sensible way, as we would have thought, with a majority for no. They considered all the arguments. Contrast that with the political system that we have at the moment in Westminster. There is a lack of energy and an imbalance between the elderly part of the population and the younger part. When the next election comes along, all the political parties will be aiming a considerable part of their campaign at older voters. Why? Because older voters vote more regularly than younger people.

The campaign for votes at 16 and 17 is based on the idea that, having given young people their education in civics, politics and the political system up to the age of 16, why should there then be a gap which results in low turnouts among those aged over 18? Why should they not be given the responsibility when it comes to a devolved Assembly? What are young people most interested in? As the noble Earl, Lord Listowel, said, they are interested in educational issues; they are interested in job opportunity. They are less interested, perhaps, in health because they expect their health is for ever, but they are certainly interested in housing. These are issues that young people are considerably concerned about and they are issues that are devolved to Wales: jobs, education, health and housing. Why should young people at the age of 16 not exercise the responsibility they have been trained to accept?

[Baroness Gale (Lab)]

My Lords, we have had a most interesting debate and it has been good to hear noble Lords from different parts of the United Kingdom taking part on the Bill today. That does not happen often; when we have had Welsh matters in the past, there have been just a few of our Welsh Peers here, so it is great to have everyone taking part here today.

I shall speak to Amendment 11, which deals with votes for 16 and 17 year-olds in Welsh elections. The Labour Party is committed to lowering the voting age, so that 16 and 17 year-olds will in future be able to vote at all elections throughout the United Kingdom. We will have a manifesto commitment at the next general election to this end.

There is plenty of evidence now to show that 16 and 17 year-olds would like to have the vote. The British Youth Council’s Youth Select Committee for 2014 recently published a report Lowering the Voting Age to 16, so here we have young people making out an excellent case for lowering the voting age and for them to have the right to vote. The Power commission, established by the Joseph Rowntree Charitable Trust, reported in 2006 on how participation in British elections and politics could be increased. In its report, Power to the People, its recommendations included that the voting age should be lowered to 16. The Welsh Government established the Sunderland commission in 2002 on electoral arrangements. Having looked at local government electoral arrangements, it recommended a reduction in the voting age to 16. Those are just three examples of where the case has been made for votes at 16.

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[Lord Thomas of Gresford]

My Lords, mistakes were made by the Labour Government in the first place with the electoral system that they chose. First past the post had to be maintained under any conceivable circumstance and the only way in which proportionality could be introduced was by way of the list system. Certainly, you can abolish the list system and replace it with the single transferable vote. We, on this side of the House, who argued for that in the first place, would willingly go along with it. One of the consequences of the Labour Government choosing, in 1998, to put in the system that they did was that a person could then stand both as a list candidate and as a constituency candidate. It is all very well talking about being rejected by the electorate. Where you have a first past the post system, you can have a political party with substantial following throughout the country—I am thinking about an up and coming party at the present time—which may win no seats at all. The system that was introduced in 1998 of being able to stand in two places was simply as a result of the Government at that time rejecting our argument for the single transferable vote. The sooner we get to that system, the better.

[Lord Elis-Thomas]

My Lords, before the noble Lord sits down—perhaps he has already sat down—does he agree with me that, if we went for a single transferable vote system throughout Wales, that would immediately make the regions the constituencies rather than the present constituencies because, clearly, for STV to work there would have to be a broader area of representation?

[Lord Thomas of Gresford]

I accept the logic of that. We have always argued for it and will continue to do so.

[Baroness Gale]

My Lords, I speak to this amendment in support of what my noble friend Lord Anderson said. When the Welsh Assembly was set up as an elected institution, it was the Labour Party that introduced PR for the regional list—along with the traditional first past the post system—which was in direct opposition to its own political interests. It is only a few years ago that we had a referendum for the people of this country to decide what system of voting they wanted. Overwhelmingly, they decided that first past the post was the best system.

Removing the ban on dual candidacy would mean that candidates who have been rejected by the electorate under first past the post could get into the Assembly via the back door. We believe that that is subverting the will of the electorate. The majority of people responding to the Government consultation on this issue disagreed with the Government’s position. We share the wider concerns of the public that removing the ban would be anti-democratic. As my noble friend Lord Anderson clearly illustrated, it would allow losing candidates to be elected by the back door. It is not what the voters want.

As I said on Second Reading, it is not surprising that two significant surveys carried out on dual candidacy have both found a clear majority in favour of a ban. One was the Government’s own consultation and the other the Bevan Foundation study. According to the Government’s own consultation, there was a small majority in favour of the ban. It does seem strange that the Government are completely ignoring their consultation—I assume because it did not give them the answer that they wanted.

The Explanatory Notes on the Wales Bill say that this change will be made to the benefit of the smaller parties in Wales. They say that studies by the Electoral Commission and others,

“have demonstrated that the prohibition has a disproportionate impact on smaller parties who have a smaller pool of potential candidates to draw upon”.

If that is the case, we are changing the law in order to help smaller parties because they cannot find enough candidates. I have seen no evidence of that. At every election, every party in Wales fields a full slate of candidates, so to me there seems to be no problem. If that is the reason for changing this, it does not hold up very well because no party has had any candidate vacancies.

There should be strong democratic reasons for a change back to dual candidacy, but I do not think that the Government have produced any. I can give a commitment that if Labour is in power after the general election, and if this is carried through, we will reintroduce the ban on dual candidacy.

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Moved by

[Lord Thomas of Gresford]

9: After Clause 3, insert the following new Clause—
“Government of Wales Act 2006: exceptions and relief from disqualification
In section 17 of GOWA 2006 (exceptions and relief from disqualification), omit subsections (3) and (4).”

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[Lord Thomas of Gresford]

Listening to the last debate, I was reminded that in 1998 the original Government of Wales Bill did not include a provision for dual membership of both the House of Commons and the Welsh Assembly. I was leading on Welsh matters and I acceded to a request from the then Secretary of State to have my party support the inclusion of an amendment that permitted the Secretary of State and others to belong to both bodies. The argument then was that it was necessary to have some Members of Parliament who had the experience to assist in the setting-up of the new Welsh Assembly, using their experience to good ends, so it is interesting that we have come to the point where the Government wish to reverse that decision.

What is also interesting is that in Clause 3 a Member of Parliament who is returned at an election as an Assembly Member has a period of eight days beginning with the date of his being returned to resign as a Member of Parliament to avoid disqualification for being an Assembly Member. That is pertinent to Amendments 9 and 10, which I am moving and speaking to on behalf of myself and my noble friends Lady Humphreys, Lord German and Lady Walmsley. It is unfair and unduly restrictive that a person should be required to give up a public position, or even paid employment, simply to stand as a candidate in an election. That is the basic principle.

There is a conflict between the provisions of the Government of Wales Act 2006, which deals with disqualification, and the National Assembly for Wales (Representation of the People) Order 2007, dealing with aspects of electoral law. That conflict needs to be resolved. It led to problems that I outlined in Committee. In the last elections to the Welsh Assembly, two Liberal Democrats were disqualified as a result of being members of public bodies that appeared in the list of disqualified bodies in the 2007 order. Arising out of that controversy, the Constitutional and Legislative Affairs Committee of the Assembly, at the invitation of the First Minister, considered the issue under the chairmanship of the Deputy Presiding Officer. It took evidence and obtained a legal opinion from the Counsel General. Its report, published in the middle of last July, made a number of recommendations which my amendments reflect. In particular, the committee felt that the disqualifications should be spelt out without reference to the legislation dealing with Westminster elections.

The noble Lord, Lord Norton of Louth, referred to the fact that in paragraph (2) of my Amendment 10 there is reference to a person being disqualified because he is,

“a member of the legislature of any country or territory outside the Commonwealth (other than Ireland)”.

It seems rather unlikely, but that is the current position because the previous Act simply incorporated the House of Commons Disqualification Act 1975 and the disqualifications that were contained in that schedule. Accordingly, when the committee of the Welsh Assembly said that these disqualifications should be spelt out in Welsh legislation rather than in a reference to the 1975 Act, I followed that recommendation. The amendments are quite simply as the committee suggested.

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[Lord Hope of Craighead (CB)]

The disqualification list includes judges in subsection (2)(a). We understand perfectly well from the provisions in the Constitutional Reform Act that members of the Supreme Court, for example, cannot speak, sit or vote in the House. That is well understood. However, there is something much more fundamental about this. It is not simply the practicality of holding a judicial office and serving as a Member of the Assembly, which has all the important work that the noble Baroness, Lady Gale, reminded us about a few moments ago. It is also the issue of principle. I cannot imagine any member of the senior judiciary engaging in party politics at all, because of the great risk of compromising his or her independence. I know of at least one case in which a judge in Scotland who was a Member of this House and was involved in presenting legislation was regarded as disqualified from sitting on a case that involved that legislation because of his previous involvement in debates in this House on related issues. Judges in the senior judiciary tread into great danger if they engage in politics at all and even more so if they become a Member of an Assembly. I cannot imagine any of them wanting to compromise their judicial position by doing so. I am open to correction about whether this is really necessary, but I express great surprise at seeing members of the senior judiciary in this list.

[Lord Thomas of Gresford]

I assure the noble and learned Lord that they appear in the schedule to the House of Commons Disqualification Act 1975. Indeed, Scottish judges are listed in that schedule, none of whom I would have thought would have had the least intention of standing for Parliament, but they are there, and that is why the list has been repeated in this amendment, without the Scottish judges.

[Lord Hope of Craighead]

I am grateful for that intervention. I noticed the absence of the Scottish judges. I wondered whether perhaps there was a message that they would be welcome in Wales. I am afraid that distance might make it rather difficult for them to participate, but I think that there is a much more fundamental point, which is the extent to which we now understand the importance of judges remaining completely separate from legislatures, wherever they happen to be.

[Lord Thomas of Gresford]

I entirely agree with the noble and learned Lord’s point of view.

[Baroness Randerson]

My Lords, it seems that the exchange between the noble Lord and the noble and learned Lord has amply illustrated that there are two issues here. There are some offices, such as being a judge, for which standing even as a candidate would fundamentally undermine public confidence in their impartiality. A judge may be an obvious example, but there could be others at the edge. People might ask whether the Auditor-General for Wales, or a member of his staff, would be able to stand. On balance, people would probably agree that they should not be allowed to. But beyond that group there is another group, often consisting of councillors, and usually councillors representing political parties, who are nominated in their role as party members or as councillors elected on a party-political ticket to bodies funded by the Welsh Government. Therefore, their candidacy is not a problem. Everyone knows that they are there because of their political position, and their election to that position. But we would not wish them to remain on whatever board or group it is that they have been nominated to once they become Assembly Members, because the Assembly funds that organisation, so it is not appropriate for them to be both funder and funded.

Amendments 9 and 10 would implement a number of the recommendations, as my noble friend made clear, made in the report by the Constitution and Legislative Affairs Committee of the National Assembly for Wales. Amendment 10 would set out a list of disqualifying offices in this Bill, and provide that a candidate who holds a disqualifying office would not be banned from membership of the Assembly so long as they resigned that position within eight days of having been elected. As a result, Amendment 9 would also remove the power of the Assembly under the Government of Wales Act 2006 to resolve that a disqualification may be disregarded in specified circumstances.

When we debated similar amendments in Committee, I sympathised with noble Lords’ concerns that someone would need to step down from a disqualifying office in advance of nomination, even if, for instance, they were listed 12th on a party list and therefore had no realistic prospect of being elected. However, amending electoral legislation can be an immensely complicated affair, so making changes to the way in which Assembly Members are elected requires considerable discussion before it can be implemented—not least because, as my noble friend has indicated, this approach to disqualification is not limited to the Government of Wales Act but applies across all UK legislatures.

In fact, in its response to the report of the Constitution and Legislative Affairs Committee published last month, the Welsh Government recognised that:

“It is not likely to be possible to secure amendments to these provisions before the next Assembly elections in 2016”.

But in a debate on this issue in the Assembly just last week, the First Minister committed to working with the next Government to consider changes to the Assembly’s disqualification regime ahead of the 2021 Assembly election.

There is a good case for including,

“only those offices for which there is a strong case for inclusion”,—[Official Report, 13/10/14; col. 104.]

on this list. I am pleased that, following Committee, the First Minister wrote to the Secretary of State for Wales to give the Welsh Government’s assurance that this is indeed the approach they will follow in drafting the order. I therefore look forward to a very much slimmed-down list of disqualifying bodies whose members cannot stand for election. This is in the interests of attracting the strongest possible field of candidates, because, after all, those people well qualified and prepared for being candidates to the Assembly are very often those who already serve their communities on a number of such bodies.

The Wales Office will, of course, be working closely with the Welsh Government as they prepare their draft disqualification order. Further discussion will be required on the wider topic of disqualification from the Assembly. I thank my noble friend for introducing these amendments, as it has enabled us to shine a spotlight on this important issue and to liaise with the Welsh Government. There are agreements between the Welsh and UK Governments as a result of the amendments introduced here and of the report from the Assembly’s committee. Those two events have moved the debate on this issue on. Although action may not be taking place as quickly as my noble friend would like, we have the First Minister’s commitment that he will bring forward appropriate measures after the general election. I therefore urge my noble friend to withdraw his amendment.

[Lord Thomas of Gresford]

My Lords, I am most grateful to the Minister for the work that has obviously been done in the Wales Office on this issue. Anyone standing as a candidate in the 2016 election will be very much on notice of this problem, and I hope it will not arise again. On that basis, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.