Motion to refer to the Examiners
My Lords, I beg to move the Motion standing in my name on the Order Paper to refer this Bill to the Examiners to consider whether it is hybrid. This point arises before we move to Second Reading.
I should say that my noble friend Lady Royall, the shadow Leader of the House, gave notice of this point to the noble Lord, Lord McNally, last Monday, when she sent him the advice of leading counsel on which we rely. That advice has been placed in the Library since Friday of last week. My noble friend Lady Royall suggested that the noble Lord, Lord McNally, refer the matter to the Examiners straightaway. If the Examiners say no to hybridity, there will be no delay. If, however, they conclude that the Bill is hybrid, the consequences could be worked on as soon as possible to ensure a transparent process within the Lords’ Standing Order to select exemptions to this new Bill. The noble Lord, Lord McNally, did not reply but sent my noble friend Lady Royall by return a letter that he had received from the Clerk of Public and Private Bills in this House saying that he considered that the Bill was not prima facie hybrid on the basis that it engaged no private interests. It is our case that the Bill is hybrid.
Before I come to that argument, perhaps I may set out the consequences of such a reference today. Referring the Bill to the Examiners, which is what the Motion seeks, would result in the Examiners seeking argument from those who say the Bill is hybrid and those who say that it is not. As experts and without political bias, they would then determine whether it is hybrid. If they conclude that the Bill is hybrid, the Standing Orders of this House require that the procedures for private Bills have to be followed in part. Those include the setting up of a Select Committee of this House to hear argument and evidence called by those whom the Committee allow to petition it on the issue of whether there should be any other exceptions to the new rules apart from Shetland and Orkney and the Western Isles. The matter of exceptions would then be decided by a fair evidence-based process where the reasoning was transparent for all to see, not by what appears to be the fiat of the Government without explanation.
The Bill is divided into two main parts. Part 1 provides for a change to our electoral system from first past the post to an alternative vote system and it also provides for a referendum on whether to introduce such a system. If the vote is passed in the referendum, the Minister will be obliged by the terms of the Bill to introduce the alternative vote system. Part 2 introduces a whole new method for fixing the boundaries of constituencies. Instead of it being a matter of judgment for the Boundary Commission as to the most expedient place for the boundaries, taking into account geographical and other community factors, county and ward boundaries and the likely number of constituencies in a constituency, under the new Bill the role of the Boundary Commission will be primarily to ensure that every constituency under 13,000 square kilometres contains the same number of constituents plus or minus 5 per cent. Constituency boundaries will be allowed to pass through county and ward boundaries. Numbers will be all.
The consequence of such an approach is certain to be, for example, that the Isle of Wight will be divided into two and the constituency of one of the Isle of Wight’s MPs will be joined to the mainland. Constituencies will frequently cross county boundaries. There is bound to be at least one constituency that crosses the boundary between Devon and Cornwall. The two constituencies that are to be excluded from this approach are the Western Isles and Orkney and Shetland. The relevant provision reads:
“Preserved constituencies … There shall continue to be … a constituency named Orkney and Shetland, comprising the areas of the Orkney Islands Council and the Shetland Islands Council”,
“a constituency named Na h-Eileanan an Iar, comprising the area of Comhairle nan Eilean Siar”.
The Explanatory Notes may be helpful to some Members of the House:
“Rule 6 provides for the two Scottish island constituencies of Na h-Eileanan an Iar (the Western Isles) and Orkney and Shetland to be preserved, and for the electorates of those two constituencies to be removed from the UK electorate and the Scottish electorate for the purposes of calculating the UK electoral quota”.
The Bill excludes those two constituencies from the effect of the new approach. Note that this is not an exception of the normal sort where, for example, no constituency can be above 13,000 square kilometres, which applies to the whole country; this is just two constituencies being taken out of the Bill. We support an approach that makes constituencies more equal in size, but we recognise that there should be a proper and transparent basis for determining which communities should be kept out of the Bill. The justification for the two exceptions was given by a Mr Harper, a junior Minister, who said:
“These constituencies have small populations and are not easily reached from the mainland. They have already been recognised either in legislation or in practice in previous boundary reviews as justifying particular treatment. We have concluded therefore that exceptions for these areas are justified by their particular geography”.—[Official Report, Commons, 27/7/10; col. 1071W.]
To that answer, I say the following: first, there are many other constituencies with just as small populations that are not being preserved and no explanation is given for their exclusion; secondly, the Western Isles have never been so recognised before in legislation; thirdly, remoteness applies just as much to the many isles of Argyllshire as it does to these two islands; fourthly, geography could be applied to justify communities such as Anglesey or the Isle of Wight being excluded. No consistent basis is being advanced.
Is the Bill hybrid? The House of Lords Companion to the Standing Orders defines hybrid Bills as:
“public bills which are considered to affect specific private or local interests, in a manner different from the private or local interests of other persons or bodies of the same class, thus attracting the provisions of the Standing Orders applicable to private business”.
Is the Bill hybrid? I submit that it is. The easiest definition of hybridity comes from the Speaker in another place in 1988 in rejecting a claim to hybridity in respect of the Education Reform Bill that was passed in 1988. He said:
“In considering the question of hybridity, I have to look at the terms of the Bill. Provided that the formula or description used in the Bill deals with a category or class which is relevant to the purposes of the Bill and the Bill does not expressly specify or single out an individual or corporation within the category for different treatment, the Bill is not hybrid”.—[Official Report, Commons, 1/12/87; col. 770.]
This Bill does precisely what the Speaker said in 1988; it singles out two constituencies that are not to be subject to a formula or description laid down in the Bill. Instead, they are singled out for special treatment.
Can the noble and learned Lord inform the House what exactly has changed since the Bill left the other place? The challenge of hybridity took place in another place and the Speaker was not called upon to rule. All that I can say to the noble and learned Lord is that, in the five years when I had the privilege of being Chairman of Ways and Means, there was never a single instance in which the upper House challenged the lower House on hybridity.
No ruling has been given on hybridity by the other place and I would strongly urge this House not to regard itself as bound by the other place, which looks at constitutional issues in an entirely different way from us. The matter was never considered by the House of Commons. If this House were to say, “Once the House of Commons has not considered it, we are not to consider it”, that would be a fundamental abdication of our position.
Will the noble and learned Lord tell us whether any other areas such as those that he mentioned, including the islands off Argyll, have requested that they should have the same privilege—if that is the right word—as Shetland and Orkney and the Western Isles? Has he received any such requests?
Mr Reid, who is the MP for the relevant area, has complained bitterly, as have the MPs for the Isle of Wight and for Anglesey. Far from flying off on my own on the issue, I am reflecting the views of many people who would argue that places such as Anglesey, the Isle of Wight, Devon and Cornwall should have special recognition for their community position. As I have said, the Bill does precisely what the Speaker referred to in 1987, in that it singles out two constituencies that are not to be subject to the formula or description laid down in the Bill but are instead to be given special treatment.
The Bill is public, but the relevant provision in the Bill will affect the specific local interests of the people who live there in a different way from those who live elsewhere in the country. Others in the country who say that they should have the same right should be entitled to argue for it. Their specific interests are also affected. I respectfully submit that the matter is pretty clear. I urge the House not to be motivated by political interests but to listen to the merits of the argument.
Why is the Bill not hybrid? Three arguments have been advanced. It is said, first, by the Clerk of the Public and Private Bills Office that there are no private or local interests engaged here. The relevant Clerk was kind enough to have a conversation with me this afternoon, when I put my arguments to him and he put his arguments to me. Unfortunately, we were not able to reach agreement. I submit that he is wrong. Hybridity does not apply only to cases where a person’s property rights are removed—as, for example, in the nationalisation Bills or the early 19th century railway Bills. Hybridity also applies where the powers, for example, of a local authority are treated differently in one part of the country from another or where the very issue is where local authority boundaries can be drawn.
Many in the House will remember the Charlwood and Horley Bill in 1973, which was a hybrid Bill concerned with whether two parishes should be in Surrey or in Sussex. No one for one minute considered that that was not a legitimate interest on which to found hybridity. The arguments in that Bill were around, “I would like to be in Surrey because Surrey is better than Sussex” or “I would like to be in Sussex because Sussex is better than Surrey”. Do not tell me that that is a property interest. That is an interest about where I want my politics to be conducted and who I want to be my representative. The important point is that that shows that the reference to local interests goes much wider than simply property interests.
Issues might arise about who should be entitled to petition the committee about the terms of the constituency boundary process. Should such an entitlement apply to individuals, or should it apply to, for example, the local authorities for the Isle of Wight, Cornwall and Devon, or to the local MPs? Those issues can be worked out and resolved by the committee adopting a workable procedure, but the key point is that the hybridity process recognises as a legitimate, specific local interest the geographical unit within which you elect your representatives.
The second argument—this is dealt with fully in Mr James Goudie’s advice—is that it is said that it is not the practice to treat as hybrid those Bills that deal with matters of public policy whereby private rights over large areas or over a whole class are affected. If one examines, as I have done, the Bills on which this principle is based, it is clear that the principle is that, if a Bill deals with the whole of a section or an industry, hybridity will not apply even if it deals with different parts in different ways. If, however, some people are left out of the new scheme, that is a classic case of hybridity.
I give two examples on either side of the line. On this side is the Railways Bill 1921, which nationalised all the railway companies but nationalised the Great Western Railway company in a different way from the others. That Bill was held not to be hybrid because it dealt with the whole of the railway industry. On the other side is the Aircraft and Shipbuilding Industries Act 1977, which left out one aircraft builder and was held to be hybrid because it left someone out. On which side of the line does this Bill fall? I have read out the relevant provisions and the Explanatory Notes, which state basically that the two constituencies are to be preserved and kept out of the whole process.
My Lords, can the noble and learned Lord help the House by explaining the difference between the Bill that we are due to consider today and, say, the Scotland Bill that was introduced in 1998? That Bill, which was brought in by the previous Government and provided for the creation of the Scottish Parliament, also contained measures to change the boundaries of constituencies in Scotland, and in particular to create separate constituencies for Orkney and the Shetland Islands. That Bill, introduced by a Labour Government, was never considered to be hybrid. Can he explain why this Bill should be?
My Lords, I have cited the example of the Railways Act, which was a piece of legislation that dealt with the whole issue, whereas this Bill does not. This Bill leaves two constituencies out.
Finally, as the noble Lord, Lord Naseby, has pointed out, it has been said that the Commons have not declared the Bill to be hybrid. That is true, but no vote was sought and no application pursued. It is for each House to make its own decision, and I strongly urge this House not to accept that, if the Commons reach such a conclusion, we are bound by it. That would diminish the importance and independence of this House on constitutional issues.
My Lords, I wonder whether the noble and learned Lord would correct a remark he made at the beginning of his speech. He said that the noble Baroness, Lady Royall, wrote to me and that I did not reply. In fact, I consulted the Clerk at the Table who is the expert on hybridity in this House. Prompted by the discussion, he wrote me a definitive letter on hybridity, a copy of which I sent to the noble Baroness, as well as placing a copy of the exchange in the Library of the House. I certainly did not ignore the noble Baroness’s letter.
I withdraw the point. The noble Lord did not write a letter to my noble friend, but it was a bad point for which I apologise. I certainly did not intend to suggest that the noble Lord had been in any way discourteous, and indeed the noble Baroness, Lady Royall, had not for one moment suggested that to me. I therefore apologise to the noble Lord.
The practice of this House is to refer a Bill to the Examiners if the House is satisfied that it is reasonably arguable that the Bill is hybrid. That happened recently in the case of the Bill that covered Exeter and Norfolk. Subsequently, the Examiners held that that legislation was not hybrid. No argument was in fact advanced to them that the legislation was hybrid because a court case after the vote in the House made the issue academic. I hope very much that the House will consider our arguments on their merits rather than on the basis of the previous occasion.
I respectfully submit that this Bill is hybrid. I have dealt with the arguments advanced against, but all that I need to do is to satisfy the House that the case is reasonably arguable. My argument also reflects the merits of ensuring that the process to determine what the exceptions are is transparent rather than just dealing with things by fiat. This Motion would allow a proper approach to be followed in selecting those constituencies that are to be exceptions to the Bill. I suggest that the House should be urging for a non-political basis to this.
These two constituencies will never have to be connected to the mainland. Unlike the Isle of Wight or Anglesey or the islands off Argyll, Orkney and Shetland and the Western Isles will not have to be treated with a constituency on the mainland because the Bill states that the numbers-driven approach will not be applied to them. They will for ever be kept separate. That is the difference. They are being treated in a completely different way from the rest of the country.
My Lords, I yield to no one in my affection for the noble and learned Lord, Lord Falconer of Thoroton—apart from Lady Falconer of Thoroton, I expect—but today he has disappointed me in his little piece of parliamentary mischief-making when most of us had expected to be here to discuss the important Second Reading of the Bill. However, late on Thursday, he raised a question not raised by the 650 Members of the other place affected by the Bill—namely, that it be referred to the Examiners on the grounds of hybridity.
The noble and learned Lord built up an unparalleled reputation in the long years of the previous Government: whenever there was a dud case to be put or a hopeless position to be defended, the cry went up from his old flatmate, then in No. 10, “Send for Charlie”. Whatever it was, up he popped at this Dispatch Box to put the case. His charms unfurled, his words dripped honey, but somehow we all knew that he knew what we knew—that the case he was arguing was built on straw. Your Lordships were never fooled then and will not be fooled today.
The noble and learned Lord comes armed with a 28-page legal opinion from the chambers founded by the noble and learned Lord, Lord Irvine of Lairg, and written by Mr James Goudie QC, no less—a close associate of the Labour Party, I understand. After 28 pages, it concludes that it is a fine line but it is arguable that the Bill may be hybrid.
My Lords, if it is not distinguished to be a close associate of the Labour Party, I withdraw it. None of my other comments was meant to remark on Mr James Goudie’s professional capacity. I said that he was a QC; I stand by that and the House knows what that means.
On the question of whether it is arguable—
I declare an interest as a QC. Is the noble Lord, for whom I have great respect, suggesting that the opinion of Mr James Goudie QC, which we have seen, does not represent his genuine and honest opinion on the matter? If he is not suggesting that, then the remarks he has just made, with respect, are ill-timed and ill-placed.
My Lords, of course I do not say that; nor do I think my remarks were ill-timed or misjudged. I was going to precisely make the case that Mr Goudie QC said that it was arguable that the Bill may be hybrid. Did anyone in the House hear a lawyer say that a case like this was not arguable? And when did the noble and learned Lord, Lord Falconer of Thoroton, fight shy of arguing it?
As is well known and understood, I am not a Silk like the noble and learned Lord or his friend Mr Goudie, but I have spent enough time in the countryside to know a sow’s ear when I see it—and I see it in this Motion. On what do I rest my case? Your Lordships have the benefit of the crisp opinion of the Clerks of your Lordships’ House, who have confirmed the view—a view they had taken even before the Bill was introduced—that this Bill is not prima facie hybrid. Indeed, in the opinion of the Clerk of Public and Private Bills, the Bill, “cannot be hybrid”. Had it been, neither the Clerks of this House nor of the other place, having examined it for that specific purpose, would have let it pass. That letter is in the Library.
Furthermore, my noble and learned friend Lord Mackay of Clashfern wrote in a letter copied to me, the Leader of the Opposition and the Convenor of the Crossbench Peers:
“A hybrid Bill is a public Bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category”.
On that, I am sure that we all agree. He went on to write this short line:
“I can see no ground on which it could be argued that this is a hybrid Bill”.
So what are the facts of the matter? No one’s right to vote is affected. No one’s right to vote is withdrawn. No one’s right to representation is diminished. All that the Bill seeks to do is to ensure that constituency sizes are more equal and that each voter’s voice is more equal. Underneath all the legal argumentation, what shines out from the noble and learned Lord is that equalising constituency sizes upsets the Labour Party. We all know that Labour has long benefited from this system. No one talked about hybridity then and we all know why, don’t we? It seems that the Labour Party is upset that those unique communities in the Western Isles, Orkney and Shetland are protected under this Bill.
Can my noble friend confirm that, whenever any legislation has referred to the Orkney and Shetland constituency, although that constituency has never been considered to be part of the United Kingdom as a conventional constituency, the legislation has never been treated as hybrid?
My Lords, not only is my noble friend, like my noble friend Lord Rennard, right, but this relates to a Bill on which the former Lord Chancellor advised. The Scotland Act 1998—legislation of a Labour Government—made provision for Orkney and Shetland each to be a separate constituency in the Scottish Parliament and not to be part of any future Boundary Commission review. The noble and learned Lord raised no question of hybridity then. In addition, the same legislation—
My Lords, there was no private interest affected in 1998 and there is no private interest affected today. If the noble and learned Lord really wants to remove the protection that we have put into the Bill, let him make Labour’s case in Stornoway, Lerwick and Kirkwall, but he should not waste the time of this House with these tactics.
Not at all, my Lords. I have brought two qualitative arguments—those of the Clerks of the House of Lords and those of my noble and learned friend the former Lord Chancellor, who have said that there is absolutely no question to answer.
Why has this popped up now? No one raised hybridity in the other place—the place affected by the Bill. No one challenged the legal drafting of the Bill in the other place—the place affected by the Bill. The Motion is a political tactic designed to delay a Bill concerning elections to the House of Commons, which the Commons, after long and careful examination on the Floor of their House, have agreed.
Frankly, the Labour Party in this House has to decide what sort of Opposition it wants to be. Does it want to engage with the great issues that led to its ejection from power and the loss of 100 seats in the other place, or does it want to use the kinds of procedural ploys, wheezes and games that we see today? Does it want to engage in the proper work of this House in scrutinising and revising legislation line by line, or does it want to manufacture time-wasting debates?
More than 50 speakers are waiting to speak on the Second Reading. There is an important issue here. We saw it last week in the vote on the referral of the Public Bodies Bill and we see it today. This House can debate procedure or it can debate substance. There is a great liberty in our procedures and we all want that to be preserved, but I hope that the noble Baroness the Leader of the Opposition and the noble and learned Lord do not intend to try to take this House the way of the other place, where hours are spent debating procedure and many clauses of Bills are never discussed.
My Lords, in respect of the Second Reading of the Public Bodies Bill, the House as a whole was debating a matter of extremely important constitutional relevance. That is why my noble friend Lord Hunt of Kings Heath put down the Motion that he did. As with today, it was nothing to do with wasting this House’s time; we were trying to ensure that we acted properly in holding the Government to account.
My Lords, years have gone by when we have not discussed these issues, either of hybridity or special Select Committees. It seems extraordinary that within six months of the Labour Party going into opposition we have had to debate them on three separate occasions. I do not think that anyone in this place outside a few zealots in Labour’s back room wants to see the kind of opposition and government politics that we have seen develop over the course of the past few months.
My Lords, that would be up to the Examiners, but, based on the precedent set earlier this summer, it would be between a week and 10 days. Everybody knows that this Bill is on a tight timetable, which is precisely why we are discussing this Motion today. Six years ago, the noble and learned Lord, Lord Lloyd of Berwick, submitted from the Cross Benches that the Constitutional Reform Bill, a Bill profoundly affecting this House, which ended centuries of this House’s judicial role, be referred to a Select Committee. The noble and learned Lord, Lord Falconer of Thoroton, condemned that as political mischief-making and strongly urged the House to resist it. Now on a Bill that has nothing to do with this House at all and has been approved by another place—
The noble Lord is absolutely right, but he will also know that once the Bill was referred to a Select Committee by the noble and learned Lord’s Motion it was made so much better, and I publicly said that. I recanted, but what has happened to him? He supported that Motion.
But on that occasion, the noble and learned Lord did not have the support of the Clerks or my noble and learned friend Lord Mackay of Clashfern. The point is that today he comes forward as the political mischief-maker in chief, hoping to use the strength of his party’s vote as the biggest party in this House to delay your Lordships’ consideration of this important Bill.
The Clerks of this House are clear that this Bill is not prima facie hybrid and “cannot be hybrid”. I submit that if the noble and learned Lord and his friends do not have the good sense to stop this charade, withdraw this Motion and let us all get on with the Bill, your Lordships should put a stop to this outbreak of party-political mischief-making with our procedures and do so decisively.
My Lords, I wonder if I could take a little heat out of what has just been said. Will the noble Lord address the point raised by my noble and learned friend Lord Falconer of Thoroton and give his own reasoned argument why other constituencies should not be allowed to make the argument that would take them to the position of the Western Isles and Orkney and Shetland? I am not arguing about the two exclusions; I am asking why nobody else has the privilege of making that argument, as we have heard that the Isle of Wight would wish to make it. What is the reasoned argument against that form of hybridity?
Private or local; I am very happy with that as well. It is whether it affects it in a manner different from the private interest of other persons or bodies of the same category. In the opinion of the noble and learned Lord, Lord Mackay of Clashfern, and many others the right to vote is a public right and the manner and place in which it may be exercised are not private interests. It is on that basis that I agree with my noble and learned friend and with the Clerks of the House of Lords that there are no grounds on which it could be argued that this is a Private Bill.
My Lords, I listened to the Leader of the House many times when he was Leader of the Opposition and was often almost seduced by his oratory. However, that was not the case on this occasion and I do not think that it was a speech that he will be entirely thrilled about, because it was based almost entirely on suggesting that my noble and learned friend’s argument was spurious, shallow, pointless and simply and avowedly party-political. The noble Lord is nodding, so he is obviously confirming that. I want to comment initially on two points that he made, which are important considerations for the rest of us during this debate.
The noble Lord said that we know “that this Bill is on a tight timetable”. In other words, it has been guillotined quite severely in the Commons; that; of course, is what he hopes to be able to achieve in the Lords. I simply ask him: who is responsible for this Bill being on a tight timetable? The Government have made that decision in the full light of all the information. It is also, presumably, the reason why the Government say that it was not even possible to have pre-legislative scrutiny on this huge constitutional Bill—one which I think the party leader of the noble Lord, Lord McNally, has described as being part of the most important reforms since 1832, with characteristic understatement. Your Lordships need not worry; I am coming to hybridity. I am sure that the noble Lord will deal with that as seriously as I am dealing with the comments that he has been making.
The noble Lord enunciated what I thought a unique constitutional principle—at least as far as I have heard in this House; it was an astonishing one to come from the Leader of the House—in which it is not this House’s business to consider issues which have not been voted on or considered in the other place. He has commented on it enough times to make me realise that this means that large swathes of business under this coalition Government will not be possible for us to discuss, because he knows perfectly well that in the other place large sections of business are frequently not discussed and not voted upon. That is due to timetabling, which obviously took place under the previous Government as it does under this one. But please let us not pretend that he is making a serious constitutional argument that we must not consider it ourselves because it has not been considered by the other place.
I come to a severely practical point on the issue of hybridity, which was partly touched upon in an earlier exchange. No one could seriously argue that this particular clause of this particular schedule did not have characteristics of hybridity: “Preserved constituencies” is all it says. It then lists two constituencies with no explanation whatsoever of why they are preserved. I put this as a procedural point to the Leader of the House; I would have thought that there is clearly no reason on earth why any other constituency that wants to be added to the preserved list should not be able to make out a case for doing so. There are 648 parliamentary constituencies not covered in the preserved list. I shall certainly be trying to persuade this House that Telford is a constituency that should not be interfered with. It is a fast-growing town in the West Midlands, whose population changes much more rapidly than other constituencies. I put only that point to him. I will not develop the argument now—it would not be to the specific point of hybridity—other than to point out that these amendments, should they be tabled, could not possibly be grouped because the nature of the hybridity means that each case is individual and is unrelated to all the other constituencies. That is the basis on which these two constituencies are put down.
If, for the sake of argument, many amendments were tabled making the case for individual constituencies, it could not then be sustained, even if you concede that this clause is hybrid, that it was only a small part of the Bill, as some of the proponents of this not being a hybrid Bill are advancing. If, during the passage of the Bill through this House, other constituencies were added to the “exempt” clause, it would become a much bigger part of the Bill. I put it to the noble Lord the Leader of the House that these are serious questions; the case is certainly serious so far as I am advancing it. There is hardly a constituency in Britain that could not put its case on the basis of its boundaries, its communities and their relationship of the communities to each other.
In passing, we have to acknowledge that all local contribution to this by way of public inquiry, which has always been the case in the past, is being bypassed too; as the noble Lord the Leader of the House has told us, the Bill is under a very tight schedule. I acknowledge that there are different opinions on this, but it is not worthy simply to use the characteristics of normal parliamentary banter, which I enjoy as much as anyone else, in responding to a very serious Motion that my noble and learned friend has tabled which, on the noble Lord’s own admission, will delay the Bill, if that is what it does, by only a week and a half. On a matter of such constitutional importance—the Government’s words, not mine, although on this occasion I agree with them—should we really not be able to delay the Bill by that time in order to establish where there is clear and serious doubt, although the noble Lord will no doubt be able to persuade enough people to his point of view? We should at least have the opportunity of dealing with that question in the proper way by referring it in the way that my noble and learned friend Lord Falconer is suggesting.
In a brief intervention some months ago, I acquired an entirely undeserved and unsought reputation for being an expert on hybridity. On that occasion, though, I detected what I thought to be a serious issue that needed to be considered in the way described. On this occasion, I can detect no such issue. I have listened with great care to what the noble and learned Lord, Lord Falconer, has said. I accept that the threshold is a low one, a point that I made on the previous occasion, but an elector’s interest in voting is not a private interest in the sense described in the Standing Orders. There can therefore be no question of treating one private interest differently from another. I am saying, only in a roundabout way, exactly what I believe the Clerk of the Public Bill Office has himself said in the letter that has been mentioned.
Before I am asked, I shall say that I have not read—
I am grateful to the noble Lord for giving way. Is it not the case that the act of voting is an individual one, yes, but as an elector you want wherever possible to be with a community of others? Surely the point about constituencies is that they are about communities. If you break up communities that are naturally together, that has severe consequences for the interests of all the individuals who make up that electorate.
The argument I am making, which is based on the Charlwood and Horley Bill from 1973, is that the interest lies in the group with which you vote. The argument over the Charlwood and Horley Bill was about whether you should be in Surrey or Sussex. It was not about an individual right to vote; it was about who you were grouped with. I earnestly ask the noble and learned Lord to consider his view on the Charlwood and Horley Bill and why I am not right in what I am saying. He is putting the argument back to me in a way that is not how I am putting it to him.
Does the noble and learned Lord accept that the determination of the size of a constituency affects not only the right to vote but, subsequently, the nature of the relationship between constituents and their Member of Parliament? In the case of Orkney and Shetland, where there would be only 37,000, and that of the Western Isles, where there are only 22,000, would their local and private rights not be differently treated by a Bill which otherwise created constituencies of 76,000, plus or minus 5 per cent? Would it not mean that the relationship between the Member of Parliament and his or her constituents in these two constituencies was fundamentally different from that of the Member of Parliament to his constituents elsewhere? Does that not therefore indicate that local and private interests are differently treated by the Bill? In that case, have we not passed the low threshold? I remind the House of what the Speaker said in the 1962-63 Session:
“I accept the true position to be this, that if it be possible for the view to be taken that this Bill is a Hybrid Bill it ought to go to the examiners. There must not be a doubt about it”.—[Official Report, Commons, 10/12/62; col. 45.]
Have we not cleared the low threshold?
I have already dealt with the threshold point. I accept and have always accepted that the threshold is low, but in this instance I suggest respectfully to the House that the threshold has not been crossed. As to the rest of the noble and learned Lord’s argument, it seems to go much further than the simple point that I am trying to make, which has to do with the meaning of “private interest” in the relevant Standing Orders. On that, I find myself in complete agreement with the views expressed by the Clerk of Public and Private Bills. I expected to be asked whether I had read the opinion of the leading counsel, who appears to have expressed a different view. I have no doubt that if I had read that opinion I would be better informed than I am, but I am not altogether sure that I would necessarily be any wiser. Certainly, doing the best that I can, it seems that the Bill is not hybrid.
This matter turns on a very narrow and, indeed, very simple issue. I can put it in one sentence; it is a question of what is meant or not meant by “a local interest”—not a private interest but a local interest. As far as I know, this is not defined in any statute or authoritatively defined in relation to the definition of hybrid Bills.
There are two issues, both of which are very simple, and I do not believe that one of them really arises. The first issue is whether there is a body that has a distinctive reality in relation to the words of the Companion that have been taken from page 556 of Erskine May. The second question is whether, if it has that distinction, it is dealt with differently from all the others that belong to that body. I take the second question first. There clearly is a difference in approach here in that the Western Isles and the Islands of Orkney are inviolate from any prospect of change. Many of the 600 constituencies that will remain may well escape unscathed, but they have no guarantee of being inviolate. Therefore, it seems to me that, as far as the second limb is concerned, one has clearly shown that a distinction is clearly drawn. There are 600 constituencies—assuming that 50 are lopped off—598 of which are dealt with in one way and two in another.
The first question—what is a local interest?—is not a question of a private interest. Local interest is defined in the Companion and, as I say, is taken verbatim from page 556 of Erskine May. There is no definition. In my submission, a local interest—if I am wrong in this, I will gladly come to the stool of penitence—is not a proprietary interest; it is an interest involving persons living in a locality as persons living in that locality. If I am wrong, it means that even though people living in the Orkneys or in the Western Isles are in a locality, nevertheless their locality status does not count. I believe, with very great respect, that the matter is as simple, clear and narrow as that.
My Lords, I am not sure that it is necessary for your Lordships' House even to go as far as that. I invite your Lordships’ attention back to the Motion of the noble and learned Lord, Lord Falconer, on whether the Bill should be referred to the Examiners, not whether it is hybrid. It is a very long time since this House has sat as a court determining difficult questions. The whole point of referring a Bill to the Examiners is for them to decide independently whether it is hybrid.
I should declare an interest as a member of the Select Committee on the Constitution. I have my name down to speak in the main debate. Given that I am taking up some of your Lordships' time now, I withdraw my name from that debate, but I underline the importance of determining what test your Lordships' House should use to decide this Motion. It is exactly as the noble Lord, Lord Howarth of Newport, has said, and as stated by the Speaker in another place when he ruled on the Local Government Bill in the 1962-63 Session and commented that,
“if it be possible for the view to be taken that this Bill is a Hybrid Bill, it ought to go to the examiners. There must not be a doubt about it”.—[Official Report, Commons, 10/12/62; col. 45.]
In the light of the discussion that has taken place, I invite noble Lords to consider the views expressed by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Elystan-Morgan, on the one hand, and those of the noble and learned Lord, Lord Lloyd, on the other, on whether it can conceivably be said that there is no doubt about it. I am sorry that the noble Lord, Lord Strathclyde, spoke in the way that he did about Mr Goudie, but in answer to my intervention he accepted that he is not saying this does not represent the honest and genuine opinion of someone who is experienced and learned in these matters. His conclusion was that it certainly could be said that this Bill was hybrid. That is why, in his view and that of the noble and learned Lord, Lord Falconer, it should go to the Examiners.
I wish to underline two further points. First, a lot has been said about whether the Bill affects private interests. The noble Lord, Lord Elystan-Morgan, is absolutely right; that is not the question. The definition in the 23rd edition of Erskine May is that hybrid Bills are public Bills that are considered to affect specific private or local interests. One cannot ignore this question of locality.
Secondly and finally, I draw attention to what Mr Goudie said in his opinion at paragraph 17. That for me is the critical question which has been raised before. It is not a question of whether or not these two constituencies should be subject to special treatment—for myself, I can well see why that should be so—but a question of what the position is regarding other constituencies. Like other noble Lords, I have received communications from people in different parts of the country—from Cornwall and the Isle of Wight—asking and expressing their views about being treated in a different way. Mr Goudie says in paragraph 17,
“it is … reasonably and properly arguable that the justification (whatever precisely it may be) is capable of being urged as being applicable to other constituencies”.
My understanding of the process which is taking place is that if the examiners agree that the Bill is hybrid, it will provide an opportunity for those other constituencies to put forward their case as to why they, too, should be treated in a special and favoured way. Good luck to them if they succeed in that endeavour. For those reasons, I will support the Motion.
My Lords, perhaps I may make two brief points. I had not intended to speak. Currently, I support the noble and learned Lord, Lord Lloyd of Berwick, but that is not the point I really want to make. We are hearing passages from the written opinion of a distinguished member of the Bar, a Queen’s Counsel, and, like me, other Members must think that that is profoundly unsatisfactory. We ought not to be asked to vote—as we shall be—on hearing little snippets. If the QC’s opinion is to be used in this House, we should all have an opportunity to read it.
First of all, we gave a copy of the opinion to the noble Baroness, Lady D’Souza, and to the other side, and we placed it in the Library of the House on Friday. I apologise, but I did say that in my opening remarks. I completely agree with the noble and learned Baroness—she is obviously right. However, we have made the opinion available to everyone. If the noble and learned Baroness would like to go to the Library and read it, and quickly come back to vote in my favour, I would be very grateful.
My Lords, having had the privilege of being in this House for 13 years, I say that this debate is one in which this House, most unusually, should not feel one jot of pride. I have listened with great care to what has been said. I have to say to the Leader, who knows the affection in which I hold him, that this is not his finest hour. I say that because we are faced with a subject of some importance. I have listened to the laughter and watched Members with a deal of disappointment because this subject is not very funny. It is serious, it is important, and it needs and deserves your Lordships’ serious consideration.
I wish to take particular issue with the point raised by the Leader, who made reference to our debate last week on the Public Bodies Bill. That was not a party political debate. The noble Lord will remember that it was, in many ways, led by the former Lord Chief Justice, the noble and learned Lord, Lord Woolf, and every former law officer who spoke did so with one voice.
Let us be frank. This is a real issue that we are asking the House to consider, and it is easy to dismiss what lawyers say as “mere technicality” and say that people are trying to take advantage of points for political reasons. However, there is a reason why they say, “Shoot the lawyers first”; it is because they are the ones who tend to tell people what they do not want to hear. But if not them, who? And if not now, when should we have this debate on hybridity?
The House knows that hybridity can be raised at any stage in the other place and here. This House has rightly received a great deal of praise for the sobriety and the reasoned way in which we conduct ourselves; listening courteously to each other and responding in a way that is right. Is there a real issue of hybridity here? Yes, there is. What is hybridity? In essence, it is about fairness. Should different groups and different individuals be treated differently? That is what hybridity does. We are asking for the House to consider whether the low threshold that everyone has spoken about has been crossed.
When we talk about our constitution, speed may not work to our long-term advantage. Therefore, it is important for us to think soberly. Every Bill that we have spoken of in relation to constitutional importance has had a White Paper, and often a Green Paper, a draft Bill and consideration. This Bill comes to us fresh, new, young and unseasoned, without an opportunity for mature and quiet contemplation. We do have an opportunity to do that. It is a simple question: does the House think that this matter should be delayed by a few days to enable the Examiners to decide the matter one way or the other?
The noble and learned Baroness is the shadow Attorney-General. She cannot say that this is a fresh, new Bill. Her party and her shadow Cabinet have been studying it since June. Why have they taken until now to raise what she calls extremely important issues?
My Lords, the reason I described the Bill as fresh and new is that with every other constitutional Bill that we have had—the noble Lord knows this—we have had the advantage of a White Paper. We have talked about draft Bills. Pre-legislative scrutiny is something that many noble Lords who sit opposite have spoken about. I do not want to go on any further—the short issue for us is this—
My Lords, the noble and learned Baroness will recall that she was a member of the Government who brought before your Lordships' House the Constitutional Reform and Governance Bill, which included provisions for the alternative vote but was not given any pre-legislative scrutiny and was not the subject of anything like the discussion that has taken place recently in the other place.
My Lords, noble Lords will also know what happened to that Bill. There is still time for discussion: we will be discussing the new Bill now. I say very clearly that this is not merely a political instrument being used for pernicious purposes, which is what has been suggested and what has made me feel very disappointed in noble Lords opposite.
My Lords, does my noble and learned friend agree that the Bill comes to us not only fresh but substantially unexamined in the other place? Very important elements—Clauses 3 to 6 and Clause 11—were entirely unexamined in Committee and on Report. Is it not incumbent on this House to make absolutely certain that we follow the correct procedure to ensure that this extremely important constitutional legislation is examined in the appropriate manner?
My Lords, perhaps I may speak briefly. The reason that this Bill should go to the Examiners is that we have heard one former Lord Chancellor say one thing and another former Lord Chancellor say another. We have heard advice from eminent QCs. When I was Speaker, I got advice from eminent QCs and sometimes it was not too good. Quotations have been made about previous Speakers giving rulings on hybridity. However, a Speaker would most certainly have taken advice from his Clerks, and Speaker’s counsel would also have been present. Therefore, a procedural expert and legal expert would have been present before the Speaker went to the House.
I do not really want to get into arguments about special cases around the country, although I support the case for the Orkneys, the Shetlands and the Western Isles being special. Anyone who knows Members of Parliament who have represented those constituencies—as some here previously did, the law officer being one of them—will know that sometimes the distance that MPs have to travel in doing their duty is such that they have to stay overnight in Glasgow before going on to their constituencies. This is not just an argument about people being allowed to vote; we are going beyond that—the electorate should also have access to their Members of Parliament. There are other constituencies with difficulties similar to those of the Western Isles and the Orkneys. I know the geography of Scotland but this is not just about Scotland. I also understand the argument that has been put forward about the Isle of Wight and I sympathise with that case. However, it is also true that, on leaving Glasgow airport, I could be in my constituency within half an hour, whereas the MP for Argyll and Bute would take a two-hour journey to get to his constituency. Getting to the famous island of Islay would involve taking a ferry, which would also take hours, and two ferries are required to get to Mull and Iona.
Although I did not intend to do so, I am beginning to put cases for special consideration because there are very difficult circumstances in which MPs have to operate because of the location of their constituencies. It would do no harm for the Examiners to look at the matter. I remember that when I was a lay magistrate, I was told not to worry about an appeal because it was a safety net. We could get the Examiners to look at this matter and it would be clear for everyone to understand.
My Lords, I do not know whether many of the questions were put to me or to the noble and learned Lord, but I shall be extremely brief. A number of issues have been raised this afternoon. They are important issues that will be raised and dealt with, quite rightly, in Committee—in particular, the questions of the noble Lord, Lord Grocott, concerning Telford—but they have nothing to do with the question of hybridity. I make two very brief points. First, the Bill is not hybrid and, secondly, the motivation behind the Labour Party’s anger is one of delay on this all-important coalition Bill.
Will the noble Lord give way for a moment? As I understand it, it is only a matter of timing. The Bill is important and the timing is tight. He told us that it would take 10 days if it went to an independent examiner. How long does he think it would take if 400 constituency amendments were tabled in Committee?
I think that the mood of the House is that we should move to a vote on this matter, but perhaps I may deal with two points. It was disappointing that the Minister did not choose to answer them. I know that if I had been a Minister, I would have been provided with material that would have answered the points, and it was disappointing that what he sought to do was political burlesque.
I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for being the only person who gave a reasoned argument about why I was wrong. With the greatest respect to the noble and learned Lord, I submit that he is wrong because he has failed to deal with the Charlwood case, in which the issue which contributed to making it hybrid was two parishes saying, “We want to be in this county, governed by them and not in that county”. That was accepting the principle that localities are really interested and that it is a local issue as to which group they elect to local authorities and local councils. That was important in relation to it. I respectfully say to the noble and learned Lord, whom I respect greatly in every single respect, that he has had no opportunity to read either the opinion or what was said in relation to the Bill that I refer to, which is my fault rather than his. The threshold is whether or not there is an argument about it. No one other than the noble and learned Lord said that it was not arguable. I had the support of the former Attorney-General—
My Lords, the noble and learned Lord must understand that many of us did not choose to make the argument, not because we do not feel strongly about it or do not have a very clear and argued case in our minds, but because we did not want to disadvantage the House in moving on to the Second Reading debate.
The noble and learned Lord must not mislead the House on this point, particularly when he talks about locality. The reality is that locality applies to every single constituency throughout the land. The point made by the noble Lord, Lord Grocott, is that if the Examiners start to meet, there is no reason why every single constituency might not come forward. It is not necessarily a matter of a week or 10 days at all. The question of locality is properly considered by the Boundary Commission when every constituency can look at local interest; it is not on a political motion about hybridity.
I apologise to the noble Lord, Lord Alderdice, for not knowing what his arguments were, but as he did not express them and I am not able to mind read, I could not deal with them. The Boundary Commission will not deal with the Western Isles and Orkney and Shetland because the effect of the Bill—this is my point—has been kept completely separate and out of the arrangements; therefore, their locality has been protected and no one else's has. I ask noble Lords to consider whether there is an argument about hybridity in this case. I say to those behind me as well as those in front of me, please address this as an issue on which this House has a good reputation. I beg leave to seek the opinion of the House.