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Parliamentary Voting System and Constituencies Bill

Volume 723: debated on Monday 20 December 2010

Committee (6th Day)(Continued)

Amendment 45ZA

Moved by

45ZA: Clause 8, page 6, line 10, at end insert—

“( ) the Electoral Commission have certified that the electoral register is being kept substantially up to date in terms of its accuracy and completeness”

My Lords, the amendment seeks to insert into Clause 8(1) a third condition before the Minister must make an order. There are currently two conditions in the Bill: first, that there has been a yes vote in the referendum; and, secondly, in Clause 8(1)(b) that,

“the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below) has been submitted to Her Majesty in Council under section 4 of that Act”.

Without going into detail, that means that the constituency boundaries have been substantially redrawn in accordance with Part 2 of the Bill.

Our proposal seeks to ensure that, before there is any change in the voting system and any substantial redrawing of the boundaries, proper work is done to ensure that the electoral register is up to date. If that work is not done, you will end up with boundaries being in the wrong place. The electoral quota for the boundary review will be based on the date on which the review begins, according to the new rule in paragraph 9(2) of the new Schedule 2 to the 1986 Act.

On page 11 of the Bill, new paragraph 9(2), which is a new rule introduced by the Bill, states:

“The ‘electorate’ of the United Kingdom, or of a part of the United Kingdom or a constituency, is the total number of persons whose names appear on the relevant version of a register of parliamentary electors in respect of addresses in the United Kingdom, or in that part or that constituency. For this purpose the relevant version of a register is the version that is required by virtue of subsection (1) of section 13 of the Representation of the People Act 1983 to be published no later than the review date, or would be so required but for … any power”.

I do not think I need to read sub-paragraph (b). New paragraph 9(5) states:

“The ‘review date’, in relation to a report under section 3(1) of this Act that a Boundary Commission is required (by section 3(2)) to submit before a particular date, is two years and ten months before that date”.

The effect of all those provisions is that the quota is to be calculated on the basis of the electoral register on the date when the review begins.

That plainly would not “take into account” underregistration in many areas of the UK. It is no good for the Government to say that they are interested in fair votes if the effect of what they are doing is to ignore the people who should be on the register but are not. The level of underregistration has been of concern to all involved in elections for some time. The redistribution of seats is dependent on the number of electors who are registered and does not take account of those missing from the register. Therefore, it is important to obtain as accurate an electorate as possible. The Boundary Commissions currently have only very limited powers to take other considerations into account, such as population projections, and the Bill requires them to use the registered electorate as the basis for Rule 2 calculations. That again is in new Schedule 2, which states:

“The electorate of any constituency shall be … no less than 95% of the United Kingdom electoral quota, and … no more than 105% of that quota”.

There is therefore scope to be 5 per cent above or 5 per cent below in working out how the electoral quota applies in a particular constituency.

The Electoral Commission published in September 2005 a report entitled, Understanding Electoral Registration: the Extent and Nature of Non-registration in Britain. The commission said that it had carried out,

“the first systematic and comprehensive analysis of registration rates in Britain since 1993”.

and that the report contained,

“a detailed analysis of the reasons for non-registration”.

The commission drew on a statistical register check carried out on its behalf by the Office for National Statistics. The report states:

“According to ONS, the best estimate for non-registration among the eligible household population in England and Wales at 15 October 2000 (the qualifying date for the February 2001 register) lies between 8% and 9%. This compares with 7–9% in 1991. This means that in the region of 3.5 million people across England and Wales were eligible to be on the register at their main residence but were missing from it in 2000”.

In the commission’s first analysis of the performance of EROs in 2009, it noted the limited data available on the rates and number of people registering to vote and commissioned new research on the state of the electoral registers in Great Britain. The Completeness and Accuracy of Electoral Registers in Great Britain was published in March 2010. Its key findings were as follows:

“The completeness of Great Britain’s electoral registers remains broadly similar to the levels achieved in comparative countries. However, national datasets and local case study research suggest there may be widening local and regional variations in registration levels. While there is no straightforward relationship between population density and the state of local registers, the lowest rates of completeness and accuracy were found in the two most densely populated case study areas, with the most mobile populations (Glasgow city and Lambeth). Recent social, economic and political changes appear to have resulted in a declining motivation to register to vote among specific social groups. This is despite the fact that electors now have more options than ever open to them to register. We made it as easy as it was possible to make for people to register. The annual canvass continues, on the whole to be an effective way to update the registration details of electors; but rolling registration, a tool introduced to maintain the register, has not prevented the completeness and accuracy of the registers declining between annual canvass periods. Under-registration and inaccuracy are closely associated with the social groups most likely to move home. Across the seven case study areas in phase two (therefore excluding Knowsley), under-registration is notably higher than average among 17–24 year olds (56% not registered), private sector tenants (49%) and black and minority ethnic (BME) British residents (31%). Each revised electoral register lasts for 12 months, from December to December; during that period, the rate of completeness is likely to decline by around 10 percentage points, owing mainly to population movement (although the rate of decline will be higher in inner London boroughs). The research did not uncover electoral fraud in the case study areas. This may indicate that where instances of registration fraud or malpractice do occur they are likely to be relatively rare local incidents (although it may be difficult to determine instances of intentional over-registration using a survey approach). The research successfully tested new techniques which could help identify some forms of fraud. There is clearly scope to introduce measures locally which would improve the completeness and accuracy of specific registers. However, there are limits to what can be achieved nationally using the current registration system”.

That is a summary of the Electoral Commission’s conclusions.

According to data compiled by the Office for National Statistics and the House of Lords Library, for example, 24,000 voters are missing from the electoral register in Sheffield Central. In Portsmouth South, 20,000 eligible voters are missing, making a registration rate of 78 per cent. In Wimbledon, the figure is 80 per cent. That does not mean that 80 per cent are missing; it means that only 80 per cent of the people in Wimbledon who could vote are registered. That is 16,000 missing voters. In Colchester—I take these by way of example—missing voters stand at 14,500.

The honourable Member for Hemsworth, Jon Trickett MP, the Labour Party spokesman on social exclusion, has commented:

“It is young people, ethnic minorities, people living in private rented accommodation and those living in deprived areas which will be disproportionately affected by these changes”.

What he said completely reflects the detailed conclusions of the Electoral Commission report, The Completeness and Accuracy of Electoral Registers in Great Britain.

If the Government plough ahead with their plans without addressing the state of the register, they will, in effect, be shutting the door on millions of eligible voters. I go back to the point that any suggestion about fairness should include fairness not just for those on the electoral register but for those who are not on the electoral register. When the previous Government were in power, we set the wheels in motion for increasing the number of eligible voters on the electoral register. We facilitated the introduction of individual voter registration but at a pace that sought to avoid the negative consequences of this when it was rolled out in Northern Ireland.

The Deputy Prime Minister, Nicholas Clegg, to his credit, has openly acknowledged that there is a problem with the state of the register.

Does this not all inevitably mean that there will be some inner-city constituencies with huge populations in the very parts of the kingdom where most of the problems of social deprivation are concentrated?

That is inevitably the conclusion of the figures that I am talking about. If one goes back to what one would have thought would be the basic purpose of these changes—to increase trust in the electoral system for those who most depend on what politics does—to rush through a change in the boundaries that excludes them because there has not been a focus on who is on the register and who is not will tend to decrease trust. What is in it for the young person? What is in it for the person living in private rented accommodation? What is in it for the member of the black and minority ethnic group if the rushed changes do not include them?

If the Government are sincere, we commend this. We warned them to be wary of the experience in Northern Ireland where there were changes and not to rush individual voter registration. But the House and the country deserve to know the substance of their plans in relation to improving registration against the analysis that the Electoral Commission has made.

I very much hope that the noble and learned Lord will respond to the points that I have made. The coalition has made it a condition of the introduction of the AV system that there is a new boundary for almost all of the constituencies in the country. Surely we want those boundaries to reflect where the voters live.

In asking this question I may make myself look a right idiot, but thinking about what is happening, am I right in assuming that there will still be a census next year?

That means that there will be hundreds of thousands of census enumerators crawling around the country in March. Could they not check that the people in the dwellings that they go to are on the electoral register? It seems an ideal time for advance publicity before the referendum planned in May. We have a census taking place at some time around March. I know there is always an argument about swapping information, but this is an ideal opportunity, particularly in the areas where it is known that there is under-registration. There is nothing new in what my noble and learned friend says: the same areas were under-registered 30 years ago. In those special areas an effort could be made by the enumerators to cross-check their results at the end of the day with the electoral register.

I agree with my learned friend—sorry; my unlearned but profoundly friendly friend. Of course what I am saying is well known to everybody. However, he is wrong to say that the matter has remained static for 30 years. According to the ONS, the best estimate for non-registration among the eligible household population as at 15 October 2000 lies between 8 and 9 per cent. This compares with 7 to 9 per cent in 1991, so I think with respect that it is getting worse.

If this is meant to be the dawn of new politics, should the Government not commit themselves to doing all in their power to enable local registration officers to maximise the accuracy and completeness of the electoral register? No system is perfect and that is why my amendment does not propose any standard of perfection. It simply requires the Electoral Commission to certify that the electoral register has been kept substantially up to date.

When I talk to electoral registration officers, they are conscious of the fact that their budgets are not ring-fenced within local authorities. There is a danger that despite all the legislation that has been going through in recent years about individual registration and so on, they simply will not have the resources to ensure the high levels of registration that my noble friend is calling for.

I appreciate that. My noble friend Lord Campbell-Savours has not said it, but he will be aware that in the context of what are quite savage cuts in local authority expenditure, the enthusiasm for this sort of work in local authorities will go down yet further.

The coalition presents its proposals and the noble Lord, Lord McNally—sadly not in his place at the moment—when confronted with difficulty says that what he seeks to achieve is fairness. It must involve fairness for all groups, but most particularly those groups that are under-represented.

Does the noble and learned Lord agree with me that all previous Boundary Commission reviews—I think that there have been five general reviews since 1944, conducted under Labour and Conservative Governments—have been based on the electoral register as it is, rather than as we would wish it to be: even more accurate and even more complete? Would he perhaps acknowledge the contribution of his noble friend Lord Wills, who was instrumental in improving the accuracy of the electoral register under the previous Labour Government, ensuring for example the provision of the rolling register, so that hundreds of thousands more voters were added to the register in April this year in order to vote in the general election? The system is now rather better than it has been previously, so the register as of 1 December this year will be more accurate than it was previously, and it is a good register on which to base the next Boundary Commission review—certainly better than it would have been otherwise and no different or worse than the previous five Boundary Commission reviews.

I agree with the noble Lord when he says that it is better than the previous five boundary reviews. I agree with him that my noble friend Lord Wills made a major contribution to that and that we did a lot to deal with the issue. The evidence that I rely on is the March 2010 report of the Electoral Commission. Although the electoral register prepared in April indicated some improvements, the speech that I made earlier indicates the fundamental problems in relation to the register, which the Electoral Commission identified. I would be extremely surprised and concerned if the noble and learned Lord, Lord Wallace of Tankerness, departed from the position of the Electoral Commission in relation to that. Yes, we have made improvements, but there is still a long way to go, in particular in relation to the private rented sector, young people and black and minority ethnic groups. There is a very substantial group of people who are not on the electoral register but who could be if an effort was made.

Will my noble and learned friend comment on the likely impact of individual registration, which is shortly to come, on the total on the register?

In Northern Ireland, there is a problem with individual registration. Eventually it should improve the accuracy of the register, but it will take some time in relation to it, and household registration tends to involve more people being registered than does individual registration. We introduced individual registration because we did not like the idea of it being the head of the household who determined whether or not you got registered. My noble friend Lord Beecham is right in saying that because that measure might reduce the number of people registered, the consequence is that you need more effort on the part of the electoral registration officers to ensure that things keep up. Ultimately, you cannot—if the claim is fairness—say that it is fairness in relation to this one aspect but not to another.

If the position of the coalition is that it will not introduce AV, even if 99 per cent are in favour, until the Boundary Commission has reported, why will it not also accept our condition, which would have a fundamentally galvanising effect on electoral registration? It would mean that the Government of the day had the highest possible motivation to ensure that there was proper registration and that the sorts of problems to which the Electoral Commission has referred would be dealt with. This is how to make a difference in this regard.

I await the noble and learned Lord’s answer as to why, if at all, this proposal would not and should not be introduced. It is a wholly good thing, which would improve our democracy and would, most importantly, bring into our democracy people in black and minority ethnic groups, which are perhaps the groups that feel most alienated and excluded by it at the moment. I beg to move.

My Lords, I support my noble and learned friend Lord Falconer on the basis that, if the boundaries are to be reviewed, the numbers should be as accurate as possible. First, however, I did not agree with what my own Government did in relation to changing the arrangements for registering for elections. I thought the head of the household system was far better than individual registration, and far more likely to ensure that more people were registered. I am worried about the effect that it will have when we move on to individual registration. I think that 17 or 18 year-olds are less likely to fill in forms, whereas the head of the household could ensure that all of the people of voting age were registered. I think it is a pity that we have moved in that direction.

However, the introduction of the rolling register, as the noble Lord, Lord Rennard, said, has significantly improved the situation. More and more people are registering now instead of having to wait for one particular date to register. That has been a great improvement.

My noble and learned friend Lord Falconer said that the numbers could be more accurate if an effort was made—I want to come to that point—to make sure that people are registered. He mentioned that two of the areas in which there was the lowest registration were Lambeth and Glasgow—he mentioned Glasgow in particular. I draw to the attention of the House what happened in Glasgow over the few months up to the end of November. Because the problems of under-registration were causing concern to MPs in Glasgow, they asked the leader of the council, Councillor Gordon Matheson, to carry out an exercise of going around the city to see if people were not registered who ought to be. During the course of just a few months, nearly 36,000 extra voters were registered. That is an astonishing number. If that was carried out in every constituency, in every city, and in every county, then we would get a much more accurate picture of those people who are not now registered and who ought to be.

I have raised this in the context of other areas, and I have been told that it is too late now to get registered if the timetable in this Bill is adhered to. I would be grateful if the Minister could confirm whether that is the case and whether we could ask each council to undertake the kind of exercise that was carried out in Glasgow.

If it is too late, then we need to consider alternatives, but if it is not, we should be getting MPs to encourage councils to carry out this kind of exercise. Before my noble friend Lord Rooker raised it, I, too, had written down the question of the census. That is another opportunity to gather a more accurate picture of those who are eligible to vote. It would be helpful if, in his reply, the Minister would indicate whether it is possible to get the census enumerators, as they go around, to ask an additional question, about registration —the names of the people in the household over 18 or those who will attain the age of 18 by a particular date. They could hand forms out when they are going around, or leaflets. That is my order of preference—to get them registered and take a note of it, then to give them a form and, failing that, to give them a leaflet. That would help.

I do not want to hold back the House unduly regarding this, but one of the things that has been noticed, and this has been said by some other colleagues in previous debates, is that it is funny seeing the two former Chancellors on the Benches opposite. It is a bit like the characters in the gallery on “The Muppets”, sitting there commenting on events.

Waldorf and Statler, my noble friend says. I should say that they are distinguished ex-Chancellors of the Exchequer. As they have been around a great deal longer than I have, they will recall—I saw this when we were in opposition in the House of Commons, even when Margaret Thatcher was Prime Minister, and I saw it again when Labour was in power and Tony Blair was Prime Minister—that, as one of my noble friends said earlier, when we went through these kinds of debates in Committee, week in, week out, the Minister would say, “That’s a very good point; I’ll take that away and look at it and come back on Report”. On this Bill, we have had one occasion when the noble Lord, Lord McNally, has said that—one miserable occasion. Even then, he did not say that he agreed; he said that he would take it back and have a look at it without any guarantee, sympathy or consideration.

I think that we could make even better progress through the Bill if, day after day and week after week, the Minister were to say, “That’s a good point. The noble and learned Lord, Lord Falconer, has made a good point on this”, or, “The noble Lord, Lord Campbell-Savours, has made an excellent point on that; I’ll take it away and look at it and see what can be done about it”. So far, though, one such response in six sessions is a very low batting average. It makes the English cricket team look good in comparison. I hope that the noble and learned Lord, Lord Wallace, whom I have known for a very long time, will recognise the validity of the argument that if you are to have a fair election and fair boundaries, you need to ensure that everyone over the age of 18 is taken account of in drawing up those boundaries.

My Lords, what a good point my noble friend has just made; I am sure that we shall all take it into account. What a good contribution, too, from my noble and learned friend Lord Falconer, and what an interesting intervention from the noble Lord, Lord Rennard. It is that last to which I want particularly to address my remarks. The noble Lord made a point that was completely impossible to dispute: in the past, constituency boundaries have been based on registers, registers by and large have been getting better—at least, we have worked on getting them better; we do not ever have a completely firm idea of how many people are not registered—and the Bill is therefore soundly based.

That, however, is not reality. The reality is that with the Bill, for the first time, we are treating electorates as part of a rigid mathematical formula—5.1 per cent over, you have to be cut down; 5 per cent under, you have to cut back. There is a strict limit of 5 per cent within which the Electoral Commission has to work, and some good examples of the effects of that have been brought before noble Lords by outside advisers. But what we are trying to equalise is not some actual number, a number in reality—it is an extremely approximate guess at the number of electors. Yes, it is the number of people who appear on a list, but we have no idea how that relates in each individual constituency to the number of people who actually should be on that list.

I can guarantee that, under the provisions of the Bill, some seats will have bits cut off them because they are thought to be over the 5 per cent limit whereas in fact they are not; they will be well within the limit, but they will have a very high registration number. More importantly, you will have other seats which are having bits added into them. They have got a perfectly normal number of people living there but an inadequacy in the register means that they are not all counted. This is perfectly all right under the existing way in which the Electoral Commission works. It works in a way where size is only one of the factors it takes into account. It adjusts for such matters as natural boundaries, geography, local authority boundaries and so on, and it comes by and large to the most sensible view on the most sensible set of facts that are available to it. That does not work for a rigid mathematical formula of this kind.

Half of the solution to this should be to be less rigid about mathematical formulae, both in terms of allowing a greater flexibility around the size allowed to constituencies and by giving a greater weight to the other factors which the Electoral Commission can take into account when deciding the boundaries of a particular seat. We will come later to amendments which are designed to do both those things.

While this provision of 5 per cent remains, however, at least we have to make sure we are doing the best job we can with the electoral register, a job which is now vastly more important because of its vast mathematical significance in the scheme of things laid out by the Bill.

Does my noble friend agree with my findings, not on a scientific basis, that during and after the poll tax fiasco the importance of people wanting to be on the register was undermined because a whole strata of people found there was a financial advantage not to be registered and somehow there was something lost in the community about the importance of wanting to register? No matter how allegedly better the registers are now, there must be a residual effect of the poll tax. So it may be better but there is residual damage.

I entirely agree with my noble friend. Indeed it is not just the poll tax; there are a number of factors the whole time that cause people to avoid anything that identifies them as individuals and which they think the authorities could catch up with. It may be for bad reasons: they may perhaps be illegally in the country or fear they are here illegally; or good reasons: that they fall for some of the liberal myths about the nature of the modern state and think that they may all end up in prison if they are identified. I do not take it by any means for granted that the improvement in the electoral register will continue over time.

It is rather like opinion polls. Opinion polls measure less and less because fewer and fewer people are willing to answer the questions because they are frightened that they may be held to task for the answers they give. There is therefore a serious risk of the deterioration of the electoral registers, which makes it all the more wrong that this Bill should have the exact number on the electoral register and the exact number of people in each constituency as its target and also makes it right that, in so far as we can improve these things at all, the amendment moved by my noble friend should be adopted to make them as good as they can be. But that will never be very good.

My Lords, I should like to share with noble Lords my own experience of the problems of electoral registration. Prior to the 2005 general election, when I was in the other place, my honourable friend Wayne David, my neighbouring colleague and MP for Caerphilly, and I were absolutely staggered to find that the new register had come out and our electorates had dropped by thousands—I think more than 8,000. We had a meeting with the electoral returning officer who was an official of his association and he explained to us that across the country electoral registration officers were pursuing different approaches to compiling the electoral register. Some were doing canvasses, some were sending out letters, some were sending out post cards and so on and so forth. The real top and tail of it was this: the council was simply not providing sufficient money for the electoral registration officer to carry out an annual canvass.

With the best will in the world, rolling registers have helped but they are more of a convenience. I do not think there is a great deal of evidence to show that many more people have actually registered. I am a bit concerned about individual registration—

The noble Lord suggests that perhaps few people have taken advantage of the rolling register. Does he not recall that in April—the month of the general election campaign—many hundreds of thousands of people, particularly young people, used this rolling register facility to register to vote in the general election? All the reasons why people do not wish to be on the register may apply in the future, while this year, because of the general election, many more people applied for inclusion on it. That is why 1 December might be a very good date on which to base the boundary review.

Before my noble friend responds, will he consider what those young people, many of them probably students, will think, having got on to the register and possibly having voted Liberal Democrat, possibly because of tuition fees; and how they may now feel about being added to the register?

Somewhat disappointed. Taking up the point of the noble Lord, Lord Rennard, I am sure large numbers of people—large numbers of young people—registered. At the time of a general election, for reasons that could be national or local, people always speed up their registration. However, I am not entirely convinced that a rolling register will improve the total number of people registered. As I say, I am a little concerned that individual registration might deter people from registering. If it is to be done by a canvass but the whole family is not in the house, what will the canvasser do? Should he or she just take the names of one or two people and register them, while the other three—perhaps grown-up children—do not get registered?

My point, coming back to my own experience, is that this simply will not improve registration. I appreciate that our economy and our country are in a difficult financial situation at present. However, registration will not improve unless central government provides the funding and directs local authorities to carry out an annual door-to-door canvass. In the past when we had such door-to-door canvasses, registration was, I believe, much higher. Unless we go back to that and provide the resources for it, it will not happen. My noble friend Lord Campbell-Savours made the point that the resources are lacking. My experience with my local council is simply that, with the best will in the world, it was not going to put in the resources necessary for an individual annual canvass. Unless we grasp that nettle, we will not improve the total number of people on the register.

My Lords, I will intervene only briefly because I do not want to get into this whole debate about individual registration once again. I spent hours on my feet in Committee on two pieces of legislation that went through under the Labour Government that introduced this monstrous piece of legislation on individual registration. It will be to our ultimate cost but that is an argument for another day. All I want to say is that I intervened in the speech of my noble and learned friend Lord Falconer of Thoroton on the question of inner-city constituencies because there is a real problem developing here. Because of lack of registration and this national formula, we will end up with fewer inner-city seats but ones that have vast populations.

We must remember that inner-city seats involve far more work. I remember when I was the MP for Workington, comparing my constituency workload with that of some of the London MPs. They got three or four times the volume of mail that I did—so much so that they often simply could not provide the level of service that they wanted to in their inner-city seats. I thought I was being heavily pressured by constituents. One of the major problems in inner-city seats is to do with immigration, often involving groups of people who are not registered at all and who cannot register. That is in addition to the general problem of higher population. I simply do not believe that the Government have taken this whole matter into account. They say, “Oh well, local authorities can simply put the resources in”, but they cannot. I say again that my own Government failed to ring-fence these budgets. However, if we had known that this legislation was coming, we might well have had to think more seriously about the need to ring-fence budgets in this area. In some ways we are now paying the price for not having done so. I invite Conservative Members to ring up some of the electoral registration officers that I have talked to, who complain that they simply will not be able to deliver on the Government’s agenda in this area.

Finally, when we look at this debate it is important to consider what happens in rural Conservative seats with what I believe to be a far lower level of casework as against the position of city centre seats in London, Birmingham and Sheffield. We should actually consider the different workload. I think many Conservative Members simply do not understand the weight of additional work that arises in those constituencies. I cannot see any way around it. There is nothing in this legislation that is there to help; we have had no undertakings from the Dispatch Box that we are going to get over this problem. My noble and learned friend Lord Falconer of Thoroton has repeatedly raised this question of higher populations in inner city seats and we have heard nothing from the Government. As this Bill progresses through Committee I think we are going to find that a lot of our debate revolves around that particular issue.

My Lords, in introducing his amendment the noble and learned Lord, Lord Falconer of Thoroton, correctly identified that this would add a third precondition to the order being laid to implement those parts of the Bill in the event of a yes vote in the referendum and the introduction of the alternative vote.

Perhaps it will not come as any surprise to your Lordships’ House that we cannot accept that there should be a further condition. We are not quite sure what “substantially up to date” means and, quite frankly, no case has been made as to why it should be done with regard to setting this order in motion as opposed to the fundamentally important point—on which I would substantially agree with what has been said not only by the noble and learned Lord but by other contributors—of getting a more accurate electorate. Indeed, I would say that even if there were a no vote in the referendum it should not in any way diminish the wish and the objective of trying to ensure that the electoral register is made as accurate as it possibly can be. It is important that it should be as up to date as possible but I do not believe it should be a condition of the commencement of the AV provisions.

As noble Lords will be aware, the electoral registration officers across local authorities in the United Kingdom already have a statutory duty to take the steps that are necessary to maintain the registers and the commission has a statutory responsibility to promote public awareness of electoral registration and elections and to set and monitor performance standards and electoral services. It is worth noting that the report to which the noble and learned Lord referred, The Completeness and Accuracy of Electoral Registers in Great Britain, published in March this year, reported a registration rate in the United Kingdom of 91 to 92 per cent. That compares reasonably well with other countries. Furthermore, the commission’s report, Performance Standards for Electoral Registration Officers in Great Britain, also published in March, showed that just under 96 per cent of electoral registration officers met the completeness and accuracy of electoral registration records standard this year, a considerable improvement on the previous occasion.

When the Minister quotes such a figure as 91 per cent, does he mean that 91 per cent of the population are registered or does he mean 91 per cent of the households in the particular area have submitted a return to the registration officer?

As I understand it—if I am wrong I will certainly make the correction—it is not of the population because obviously there are members of the population who are ineligible to appear on the electoral roll. I understand that it is the figure of those who are eligible to vote.

I take the important point made by the noble and learned Lord that there are groups—young people, people in the private rented sector, people from ethnic- minority communities—where the figure of non-registration is disturbingly high.

If the Electoral Commission can produce that figure of 91 per cent registered of those eligible to vote, then it must have a figure of those eligible to vote. If it has a figure of those eligible to vote why not use that figure in each constituency rather than the registered figure?

I understand that. If I am wrong, I will readily correct it. However, the point is, as I understand it, that that is trying to compare like with like. It compares reasonably well with other countries, but I readily acknowledge that within that there are groups which are considerably under-represented. The information I have been given is that the figure is 91 per cent of those in the population of voting age.

In order to calculate that the figure is 91 per cent of the people of voting age, you must know how many people there are of voting age in each constituency. Surely that figure could be used for the boundary reviews, rather than the number of people who have bothered to get their name on the register, and it would be much more accurate.

It is indicated that voting age may not always mean eligibility to vote, because there might be occasions when people may not be United Kingdom citizens, or be Commonwealth citizens or citizens of the Republic of Ireland, and would thereby be ineligible to vote.

The two important points are, first, that that 91 per cent figure is reasonable and compares well with other countries and, secondly, there are still within it groups where the registration rate is not, by any stretch of the imagination, satisfactory; and I believe that there is an obligation to address these issues.

My Lords, it is very helpful to have this information from the Minister, but the real point is that it is not what the overall level of registration is, or what the level of registration within groups of the population is; it is what the variation is in the level of registration between constituencies. It is constituency sizes that you are trying to equalise on the basis of these registration figures, and 91 per cent overall could easily hide a difference between 80 per cent at the lowest and 99 per cent at the highest.

It follows on from what I have said that I have implicitly acknowledged that point, because clearly there are some constituencies where the kind of groups that I have indicated have a lower registration rate tends to be more concentrated. To be fair, the noble and learned Lord, Lord Falconer, alluded to the information on that from the reports from the Electoral Commission that have been referred to.

The noble and learned Lord says that it is possible on the basis of knowing what groups are in which constituencies to make a pretty good estimate of the percentage of registration in each constituency. It would be helpful if he published for the House a document setting that out, so that we can see what the variance is. It is not on the variance that these equalisations will happen; it is on the basis that they are all plumb right.

My Lords, I hope that there is no dispute between any parts of the House that it is important that we try to improve voter registration, and I can assure the House that the Government are committed to ensuring that the electoral register is as accurate and as complete as possible. That is why we are taking forward and progressing towards individual registration. I know that the noble and learned Lord agreed that we were taking along what had been set in motion by the previous Administration, although I understand that there are disputes about that on his own Back Benches. In addition, we are introducing measures such as data-matching schemes to help local authorities gain as complete a picture as possible of eligible voters in their area.

The noble Lord, Lord Rooker, and the noble Lord, Lord Foulkes, made reference to the census. It was a helpful suggestion. In a previous incarnation in Scotland, I had some ministerial responsibility for the census, and I am only too aware of the sensitivities attached to that. I rather suspect that the Office for National Statistics has thought about the degree to which it would be practical to mix the census with another exercise and the effects that that could have. I do not have the information to hand on whether the ONS has made that analysis, but I would nevertheless be happy to look into that issue. It might also be possible, although I cannot give any definitive answer, for the information from the census to inform us in the future. As the noble Lord, Lord Rooker, indicated, there are sensitivities about data protection, but perhaps it may be possible for that information to be available for informing further efforts to improve voter registration.

I confirm that we are piloting data matching between electoral registration officers and public authorities to identify people who are not on the register and target them for registration. We have just run a process for applications and the pilots will occur next year. I say to the noble and learned Lord that the boundaries have always been drawn on the basis of the register, and, as he correctly pointed out, the review date will be in two years and 10 months. As the report is due on 1 October 2013, the review date would be 1 December which has just passed, which, in answer to the noble Lord, Lord Foulkes of Cumnock, would be too late. However, I hope he will agree that it is not too late to try to encourage people to get on to the register for the purpose of voting in the referendum and in the other elections which are due to take place next year.

I also make the point to the noble and learned Lord that, if his amendment were to be carried and the next election in 2015 were held according to a register where the review date was some 10 years ago, the distortion might be even greater. I also point out that, under the Bill, we are seeking to have a review every five years. That would allow us the opportunity every five years to improve and, it is hoped, to take advantage of the improvements to which we are committed and which I know the Administration of which he was a member subsequently supported. My noble friend Lord Rennard paid proper tribute to the work that was done by the previous Administration to try to increase voter registration with a rolling register. These are worthwhile initiatives and we want to continue with them.

According to the terms of the Bill, I think that the second boundary review will report on 1 October 2018. The noble and learned Lord indicated that there were difficulties involved in rushing registration and we have taken that on board. However, I cannot be absolutely certain about the extent to which that will be fully fed in for the report that comes out in 2018, with, I think I am right in saying, a review date of 1 December 2015. I hope that my arithmetic is correct. We hope to make substantial progress with individual registration ahead of that date.

I hope to reassure the Committee that this is an important issue and that that is how the Government are treating it. We have put in train measures to try to increase voter registration but we do not believe that that should be a precondition for the introduction of the alternative vote system. However, I believe that such an increase is absolutely right in its own terms and that we should make a concerted effort to improve voter registration, not least so that those who are entitled to vote get the opportunity to do so in future elections and, indeed, in a future referendum.

I express my gratitude to the noble and learned Lord, Lord Wallace of Tankerness, for his response to my amendment. It was gracious and detailed and dealt with the issue. Perhaps I may draw out a number of the points that he made. First, he said—in my view, rightly—that there is an obligation to address these issues. He said that he regarded it as right in its own terms that this issue is addressed, by which I take him to mean that, irrespective of the Bill, it is something that needs to be done. I have not noted his precise words on this but he also accepted that it is an important issue because it effectively disenfranchises the groups on which I think we agree—that is, those in the private rented sector, those in the BME community and young people. That is why it is important.

In effect, he confirmed that, as the Electoral Commission said, we are getting a registration level of 91 to 92 per cent, which means that about 8 to 9 per cent are not registered. Therefore, there is no dispute in relation to the position.

He made a point which had not occurred to me but which seems important—that a review two years and 10 months before the effective date means that the relevant date is 1 December 2010. That means that, if you want to make a difference to electoral registration, you need to move the review date a year forward at the very minimum to make it worth while.

The point that the noble and learned Lord did not deal with is that if, like me, he accepts the importance of dealing with these points, why is this not the obvious Bill in which to do it? If he is serious about dealing with these points, it is obvious that something else is required. The points he relied on to start with—for example, that the electoral registration officers have a duty and the Electoral Commission have an obligation to set a standard, the two particularly good points he relied on—are not only not improving the position but would appear from the comparison between the 1991 position of 7 to 8 per cent, and the 2001 position of 8 to 9 per cent. They are not to be leading to an improvement and therefore something else is required.

The coalition has taken the view that it would be wrong to introduce AV without first having equalised the constituencies. Why do the coalition regard the equalisation of the constituencies as more important than trying to get a substantial proportion of that 3.5 million who are not registered on the electoral register?

I am pleased to see the noble Lord, Lord McNally, in his place. I regard him as the public face of the coalition’s defence of this particular Bill. It is hard to imagine a more attractive and handsome public face. What he says in response to practically any complaint about this Bill, and what we are focusing on, is fairness and fair votes. Surely it is fair to the people who are not registered—3.5 million of them—that they get on to the electoral register?

I am grateful to the noble and learned Lord, Lord Wallace, for his full answer, which was a genuine response to what I have said. I will come back with an amendment like this on Report which, because of what the noble and learned Lord has said about the review date, to be meaningful has to give enough time for the coalition to make improvements in relation to it.

Remember that what I am asking for is not a complete and accurate register in every respect but simply a conclusion from the Electoral Commission that it is satisfied, in substance, that all efforts have been taken to get as many people as possible on to the electoral register.

I will not, therefore, press my amendment tonight but I will come back, taking into account the points that the noble and learned Lord made in his response.

Amendment 45ZA withdrawn.

Amendments 45A to 46A not moved.

Amendment 47

Moved by

47: Clause 8, page 6, line 17, leave out subsection (4)

The noble Lord, Lord Lipsey, asks a very reasonable question. My understanding is that it is a common provision in the context of a power to commence primary legislative provisions by order. It only allows a limited provision to be made where it is genuinely necessary for the purpose of commencing the AV provisions, and the transitional saving power cannot be used to amend either the Bill or any other piece of legislation.

It was included simply to provide for unforeseen circumstances which might affect the implementation of provisions in the event of a yes vote. As the noble Lord and, indeed, your Lordships may be aware, the Delegated Powers and Regulatory Reform Committee has published its report on the Bill and recommends that the power in Clause 8(4), the one which the noble Lord seeks to delete, should be subject to negative procedure. We have noted the concern of the committee that this power might enable the Government to determine which form of voting system should apply in the case of a particular parliamentary election.

The Government take the view that there is only one situation in which the power would need to be used: a case where a by-election is called after the AV provisions are implemented but before the first general election to be held on the alternative vote. That situation could arise if it was thought beneficial to commence the AV provisions well in advance of the anticipated next general election. We would wish to do that to give electoral administrators some certainty. In those circumstances, the power would be used to ensure that such a by-election would be held on the basis of first past the post because provision along these lines would ensure that all Members of the other place should be elected using the same electoral system. I hope no one would disagree with that principle.

The noble Lord has raised the point. The Government take the view that the best approach therefore is to remove the power in Clause 8(4) and instead provide explicitly for the situation as regards the elections prior to the first general election on AV. That makes the Government’s intention very clear and removes any room for doubt about how that power might be used. The effect of Amendment 47 on its own would be undesirable. It would remove any power to make the saving provision that we think is sensible in secondary legislation without placing that saving provision in the Bill in its place. It would certainly be our intention to bring forward an appropriate amendment on Report.

The noble and learned Lord has sent this particular noble Lord home happy for Christmas. At last we have changed the Bill in some small regard. I am very grateful to him for his open-mindedness and his very clear explanation. I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Amendment 48 not moved.

Debate on whether Clause 8 should stand part of the Bill.

I wish to speak to Clause 8 because I am worried that a certain portion of the House—essentially, the Cross-Benchers—is unaware of the fuller implications of what we are doing. I want to address my remarks primarily to them during the course of this debate. Clause 8 deals with actions that the Government must take following the result of the referendum, a referendum that is based on a simple majority. A simple majority vote is what the Government argue is their way of respecting the will of the people. I quote those words “respecting the will of the people” because they were the words that the noble Lord, Lord Strathclyde, used in his response to the amendment moved by my noble friend Lady Hayter of Kentish Town.

I go back to 13 per cent. That is hardly what I would call the will of the people. I would argue that that not being the will of the people, the Government should—the Bill says “must”—take certain actions in this clause. I would argue that they should not take those actions. I argue that that 13 per cent figure is particularly relevant—we are back, essentially, to a threshold debate—because last week I had conversations with various electoral registration officers in the north-west of England, and from the conclusions that I drew as a result of those debates it is quite obvious that when the referendum takes place in various parts of the country next year, there will be some very low turnouts indeed. I cite the case of Manchester City Council because its elections in 2007 broadly reflect the results coming from a stream of cities in the north-west of England. Liverpool, Burnley, Preston and all the cities around that area broadly had the same turnouts in their local election campaigns. I will refer to a return that was sent to me by Manchester City Council for the elections in 2007.

The relevance of this to the Cross-Benchers is this; I believe that most Cross-Benchers have had no experience whatever of turnouts in elections. The closest that most Cross-Benchers in this House will ever have been to an election is voting in one. They will never have canvassed, they will never have been members of political parties, and their knowledge of these matters will be very small indeed. I draw the Cross-Benchers’ attention to some turnout figures so that when they read the record of the debate, they will understand what happens in these inner city seats—seats that will form part of the national results. It takes only 50.1 per cent of the return in these seats actually to win the referendum.

I will not name the seats in Manchester, but I will go through some of the turnouts: 24 per cent, 21 per cent, 23 per cent, 22 per cent, 27 per cent, 16 per cent, 29 per cent, 28 per cent, 21 per cent, 27 per cent, 20 per cent, 29 per cent and 17 per cent. Let us remember that it needs only half of these turnouts in terms of cast votes to decide in favour. They will in effect approve the biggest constitutional question, in what I think were the words of Mr Clegg, for the last 180 years. I shall go on: 24 per cent, 29 per cent, 25 per cent, 21 per cent, 21 per cent, 21 per cent, making an average of 27 per cent. Those are very low turnouts indeed. I cannot see how it is possible to justify changing the law on such a major constitutional issue on the basis of low turnouts on this scale.

If I translate those turnouts into the votes that are actually required in Manchester City, a city of a third of a million people, on an average turnout of 27.7 per cent you need only 13.85 per cent of the electorate to approve the referendum. It means that the votes alone of 42,580 people in Manchester, a city of a third of a million people, would determine the result of whether people were in favour of the change in our electoral arrangements to AV. I do not believe that 42,000 out of a third of a million people in Manchester could in anyone’s language be described as the will of the people being exercised in the way suggested by the noble Lord, Lord Strathclyde. It is far too low a figure.

I have spoken in the debate on clause stand part because I hope that when the Cross-Benchers, who I maintain again have no experience whatever of being engaged in political activity, consider this statistic alone, it might give them pause and make them wonder whether it might now be appropriate to introduce a threshold. Despite what was said in the House of Commons, the reality is that this matter was hardly debated at the other end. There was no great debate because of the way House of Commons business is conducted these days. I hope that the statistics I have produced will get through to those whose judgment may be influenced.

My Lords, this clause is at the heart of Part 1. In my submission, there are two things that one needs to focus on. First, it is to be a compulsory referendum in the sense that the Minister is required to introduce the new AV system without any protection against a low turnout. The noble Lord, Lord Strathclyde, said that we would trust the view of the people in that respect, but the difficulty about that is that he did not address the argument put repeatedly and effectively that where you are dealing with significant constitutional change, most systems, including ours, build in protections against change that does not have adequate political and popular support.

This is a constitutional change that does not have the support of Parliament or, as my noble friend Lord Campbell-Savours said in the course of the debate, that of any political party. I therefore ask the noble Lord, Lord Strathclyde, to address the fact that in this way you could have constitutional change that is supported by 13 per cent of the population but is not supported by Parliament or by any political party. Most people would regard that kind of change as easier than normal legislative change, so will the noble Lord, Lord Strathclyde, address the argument by saying more than simply, “We trust the will of the people”? Some thought must have been given to that matter. He looks bewildered—as he often does in relation to the Bill—but if he can do no better than that, the House will draw its own conclusions. If his argument is no better than that, he should say so.

The second point about this provision is that the coalition has decided that before AV is introduced the constituencies should be equalised. This is presumably because it takes the view that it would be unfair to have a new electoral system if there is unfairness in the size of constituencies. Indeed, the noble Lord, Lord McNally, has made the point that they are trying to achieve fairness. However, it is obvious that, as the majority of constituencies in this country will be redrawn, it will be unfair to constituencies if they are redrawn on an inaccurate electoral register.

In answer to a Written Question from my noble friend Lord Bassam of Brighton, the Government have produced figures setting out the discrepancy between constituencies in who is on the electoral register and who is over 18. The noble Lord, Lord Taylor, is nodding sagely and I express our gratitude, on behalf of the nation, for his openness in providing that information. The information repays looking at. Take the north-east of England, for example. In the City of Durham 12,714 people over 18 are not on the register in a constituency in which about 67,000 people are registered; in Newcastle upon Tyne Central, 12,164 people are not registered in a constituency in which about 66,000 are registered. In Manchester Central, 11,820 people are not registered in a constituency in which 78,000 people are registered; in Bradford West, 15,885 people over 18 are not registered in a constituency of approximately 65,000; in Sheffield Central, 60,000 people are registered and approximately 24,000 are not registered; in Leeds North West, approximately 68,000 people are registered and 17,528 are not. Which is the greater unfairness: that the constituencies are not equalised or that these numbers of people are not registered? Interestingly, these people are in constituencies with significant numbers of people in the private rented sector or in BME communities.

Surely the right course for Clause 8 is to ensure that both conditions are met before AV is introduced. It would make a difference because it would provide a drive for electoral registration that has not previously occurred.

Is not the interesting factor governing the statistics introduced by my noble and learned friend that they are primarily Labour seats?

It had not occurred to me that they were Labour seats. I hope that the House will address these issues on the merits of the argument. However, it would not surprise me that they were Labour seats because these tend to be in areas where the poorest—the BME communities, the private rented sector and students—live. If I had thought about it, that would probably have been the answer, but so what if they are Labour seats?

My noble and learned friend complimented the noble Lord, Lord Taylor of Holbeach, on being open and on making the figures available. He did not quite make them available; he produced them only after a Parliamentary Question was put down. He did not for the sake of being helpful to all concerned put down figures for the whole of the UK by country. My noble friend Lord Bassam of Brighton requested the figures for England; I have asked in a Written Question for the same figures for Scotland, so that I may make the same comparisons. The fact that the Government have not exactly rushed forward with the figures suggests not that they were hiding them but that they were not contributing to a wholly informed debate on people missing from the register.

I had not spotted that the figures did not include Scotland; we had the information for Wales. I presume that the noble Lord, Lord Taylor, was not asked about Scotland, which is why he produced figures only for England and Wales. He is in his place, but does not tell us. I do not know why he did not produce figures for Scotland. It would obviously be worth while to see them. I am sure, knowing the noble Lord as the Committee does, that he would be very willing to produce the Scottish figures. I am not sure whether the Front Bench are nodding or shaking their head. It would be good to see the Scottish figures. No doubt they will be produced in answer to my noble friend.

I am sorry to press my noble and learned friend. The relevance of the figures being for Labour seats is that many people believe that it is why the Government are relatively indifferent to the problem.

I do not know why the Government are behaving in this way. It does not matter to me whether they are Labour or Tory seats. The noble and learned Lord, Lord Wallace of Tankerness, was absolutely clear—I accept his sincerity in this respect—that he was indifferent to the political hue of the seats and that this was the matter that needed to be dealt with. This is the way to deal with it. That is why the answers that have been given are so surprising. I hope that, if the noble Lord, Lord Strathclyde, is answering, which I deduce is the case because he floated to his feet before I had an opportunity to make my speech, he will deal with that.

I am deeply grateful to the Government Chief Whip for providing this extra time for us to debate Clause 8. I am glad to see that the noble Lord, Lord Deben—the artist previously known as John Selwyn Gummer—is here, even though he has moved conveniently to another part of the Chamber. He was concerned that some of us—although I have been here for five years now and have become sort of institutionalised in this place; the noble Lord joined us relatively recently—had imported habits from the other place. I shall try to explain to him and others why some of us here who were in the other place—in my case, it was for 26 years; a number of other Members were there even longer—are deeply concerned about what is happening. This clause is the fulcrum, as someone said earlier, of that.

Perhaps I can explain it better another way. I go around now to different countries as a member of the board of the Westminster Foundation for Democracy. We talk to it about the Westminster system, our system of democracy and control, and the way in which we have checks and balances and parliamentary control of the Executive. The noble Baroness, Lady D’Souza—I call her my noble friend—was on the board with me for a number of years, and prior to that, and played an excellent role. She will remember all our discussions.

If the Bill gets bulldozed through, can we still go around to these countries and say that we are the greatest democracy in the world, the epitome of democracy, and that this Westminster system is the one to be held up for others to follow? We saw the Bill of 300 pages hugely amended in the House of Commons—I do not think that it was 300 pages when it started—with lots of amendments put down, lots of clauses never properly scrutinised, and great faith put in the drafters, the civil servants. After five years working with civil servants, I am always very cautious about putting total faith in their drafting, but no doubt Ministers think otherwise.

The noble Lord, Lord McNally, has put down dozens of amendments in this House which are going to have to go back; huge changes have taken place. The Bill was guillotined in the Commons. They did not consider it in every detail. They did not think: is this right, what are the implications, are there any unintended consequences to this, are there any implications for anything else that we are doing? They did not consider whether there were any implications for fixed-term Parliaments and reform of the House of Lords, as I said in an earlier debate. They did not consider that. Now there is the suggestion that we are not going to be able to consider it properly here. If that is the case, it will have gone through two Houses of Parliament without proper, detailed consideration.

Take other countries, such as the United States of America. It is not perfect in any way, but it has two democratically elected chambers—the House of Representatives and the Senate—the President taking part in terms of legislation, while the Supreme Court provides an opportunity to consider whether there is anything that infringes the constitution of the United States. We do not have those checks and balances here; we are rushing the Bill through.

Has my noble friend ever seen the preposterous way the Americans draw their boundaries?. We can lecture them on the way we draw our boundaries, both now and after we have passed the Bill. My noble friend should not pray in aid the American way of doing things as better, because the way they draw their boundaries is nothing short of a scandal.

My noble friend has had a lot more experience than I have. I accept his point in relation to drawing boundaries compared with the way we do it now, but if we pass the Bill and there are no hearings, I do not think I can be proud and pleased that we are doing it the best possible way. I am not saying that the US is perfect. There are other countries that can be prayed in aid.

We are pushing the Bill through. We have, in this clause, an Order in Council; some people outside believe that the Privy Council is some kind of democratic organisation, a bastion of democracy. My noble friend Lord Rooker will have been at many meetings of the Privy Council. I have only been at one, but it certainly did not seem to me to be any kind of bastion of democracy.

I am really concerned at the way the Bill is being pushed through without proper consideration. I say this honestly, and I know that a number of Conservative Members have heard me say it again and again: if the Bill goes through unamended in substance, I think that they are going to wake up, in a few months’ time and say, what on earth—I was going to say something else—have we let ourselves in for? I think that there will be some deep regret.

Finally, in relation to what we were discussing earlier—the electorate and whether we draw the boundaries based on those who are registered, or those who are eligible to vote—I can tell the noble Lords, Lord McNally and Lord Strathclyde, and the noble and learned Lord, Lord Wallace of Tankerness, that this morning, to be helpful, I put down an amendment to page 11, on the interpretation of the “electorate” for the purpose of the Bill, which would take account of that. This was just to show that on this side of the House, we can be helpful. I hope that, eventually, we will get some more help from the Government.

My Lords, this Bill is a vision of simplicity and clarity. It provides for a referendum on a voting system. If the answer is yes, it should apply at the next general election and there should be fewer MPs and different boundaries. That simplicity should be able to unite us all. Yet in the words of the noble and learned Lord, I am utterly bewildered by the arguments put forward by noble Lords opposite. They complain that there might be a low turnout yet they support amendments that are likely to make the turnout lower by not having the referendum on 5 May. My position is at least as arguable as the noble Lord’s.

The noble and learned Lord said, “Don't argue. We should trust the people”. I think “trust the people” is one of the most important and significant labels that we have in this country and indeed in western democracy. The noble Lord, Lord Foulkes, prayed in aid the western foundation for democracy. What is the western foundation for democracy if it is not to trust the people? Yet with every single amendment noble Lords are saying, “Don’t trust the people. They may not come out and vote. If they do come out and vote and they say yes they are probably wrong. Only we can decide”. What is even more bewildering is that the Labour Party voted one way in the House of Commons and another in this House. No wonder I am bewildered. What is happening is bewildering.

The charge is that we are bulldozing this Bill through, but we are about to start the seventh day in Committee and we have not yet agreed Clause 8. The House of Commons dealt with the Bill in five days in Committee. It had significant votes on every single aspect of the Bill at some stage. The Bill has been given more time and more consideration in both Houses than most of the Bills produced in the past 13 years.

The noble Lord is labouring this for another reason. Does he bear in mind that his own Members in the House of Commons complained about lack of time? Not only did they complain about the lack of time, they also produced evidence from Conservative councils about lack of time. Does he also understand the crucial point here is that this is a constitutional Bill? We have a situation where a Government are changing the composition in terms of numbers of the House of Commons without either an independent assessment first or the agreement of all the parties. That is what makes the Bill much more serious than he is pretending at the moment.

Does the noble Lord not recognise that Conservative Members of the other place are asking us to block the Bill because of AV? They are asking us to block the Bill.

My Lords, I am sure that some Conservatives oppose the Bill. Indeed, many oppose AV. But the noble Lord, Lord Soley, says that there is no agreement among the parties. Is that not partly why we are having a referendum? The fact is that the Labour Party is divided. The leader of the Labour Party says that he is in favour of AV and he has pledged his party to be in favour of AV yet we know that that there are many Labour politicians who are opposed to AV, like the noble Lord, Lord Foulkes.

The Leader of the House says that he is not bulldozing this through, but he says that only in terms of time. He has accepted none of the amendments, many of them sensible. He shows no prospect of accepting any in the future. His leader is packing this House with 50 more coalition Peers to get this through. He calls them in from the hinterlands and backwoods to vote us down on every occasion. If the Leader of the House showed any flexibility or willingness to take on board some of the things that we said, I would take back what I said about bulldozing the Bill through.

We will have to agree to disagree on almost every single aspect of what the noble Lord, Lord Foulkes, said. We are not in favour of thresholds. We are in favour of having a referendum on 5 May. The noble Lord disagrees with us. There is no point in the noble Lord, Lord Campbell-Savours, shaking his head. He is not in favour of having a referendum on 5 May, which is why he and his party have consistently supported amendments which oppose that.

It is widely known what this clause does. It provides for when the alternative vote provisions will either take effect or be repealed, and it is carefully worked out what all the provisions do. Subsection (2) provides that if there are not more yes votes than no votes in the referendum, the Minister must make an order repealing the alternative vote provisions. The two policies are included in this Bill because they are both crucial issues relating to how people are elected to the other place. This referendum will, for the first time, give voters a say in how they elect their MPs and the boundary proposals will mean fairer and more equal constituency boundaries can be put in place for a general election in 2015. Both these policies went through another place with clear majorities, and I very much hope that this clause will stand part.

Does the noble Lord really believe that 13 per cent of the vote can be described as the will of the people?

I am afraid that I lost a long time ago where this 13 per cent figure came from. It might have come from the noble and learned Lord at some stage.

It came from my noble friend Lady Hayter, who is sadly not in her place, who proposed a 25 per cent threshold, which with extreme enthusiasm the noble Lord, Lord Strathclyde, rejected. When asked whether he was therefore happy that 13 per cent could lead to the change, he said, “Yes”. That is where it came from.

Thresholds deal only with a situation where the vote is that low. If it is higher than that, you never rely on the threshold.

The noble Lord says this is hypothetical. I have read out to the House a whole series of statistics from Manchester City Council showing that it is unlikely that it will be more than 13 per cent, based on the historic record of the elections in 2007. How can he call it hypothetical? That is what is going to happen.

My Lords, I really do not think so. All the evidence points to the fact that considerably more than 13 per cent of the people will vote because we are having a referendum on 5 May, when so many other elections are taking place across the United Kingdom. That is the point. It is not just a referendum in Manchester; it is right across the United Kingdom, where no doubt the turnout will be average. But we fully expect there to be a reasonable turnout.

Clause 8 agreed.

Clause 9 : The alternative vote system: amendments

Amendment 49 not moved.

Amendment 49A

Moved by

49A: Clause 9, page 6, leave out line 28

My Lords, I reassure noble Lords that it is not my intention to divide the House at this hour, but my intention may well be to divide the House on Report on this amendment. It simply tweaks the supplementary vote system whereby, instead of using two Xs, it requires the use of numbering of first and second preferences on the ballot paper. I have tabled it as a probing amendment to establish whether the Government accept that my wording meets the high standards of legislative language that the law would require if the Bill were passed with those words included within it.

A fair criticism of my amendment is that it reflects my unyielding persistence in belief in, and pursuit of, a credible electoral system as an alternative to first past the post. That is true, because I remain deeply concerned about the system which the Government have used, the Queensland AV system—the optional multipreference voting system. The advantage of this proposal is that while it might look like the supplementary vote, it is not a classic supplementary vote. You can call it the alternative vote. It gets around the language references to AV already embodied in the Bill. For those who have not been present during the course of our many references to SV and to how the system would work, for ease of reference, I refer them to col. 194 of House of Lords Hansard of 8 December. I would be ill-advised at this time of the evening once again to set out the case for my proposed system. However, I would refer the House to the contributions of Mr Christopher Chope, the Member for, I think, Chichester or Chislehurst.

The Member for Christchurch, in the House of Commons, who was supported by Eleanor Laing, Greg Knight, James Clappison and Robert Syms. He stated:

“I beg to move amendment 62, in clause 7, page 5, leave out lines 9 to 11 and insert ‘but no preference beyond the second may be indicated’.—[Official Report, Commons, 19 /10/10; col. 837.]

He went through the use of a numbered system. I hope that the noble Lord in reply can simply clarify the position as to whether the language that I have deployed in this amendment, if it were enshrined in the Bill, would be acceptable. I beg to move.

What the group does is bring into the Bill both the federal Australian system, which is that you have to use all your preferences, and it also brings in the SV system, which is the one used in London. It goes back to the question as to what is the best AV system to use. The Government have made a choice as to what they think is the best AV system, which is one where you have the right to use a number of preferences, but you do not have to use them all. The second option is the one used in the federal system in Australia where you have to use them all and the third option is the one used in London which is where you identify the top two candidates from first preferences and then you divide all the second preferences from the other candidates between those two candidates. As I read the group—although the noble Lord, Lord Campbell-Savours, is shaking his head—it seeks to put in those two systems.

On the ballot paper, instead of putting two crosses, as you do under the London system at the moment, you would put one and two. That is the only difference. But at least it looks like the alternative vote for those who are obsessed on the other side of the House with that system.

Does the drafting work? Is it appropriate? Why is it not in there? These are the questions for the Government. It might not necessarily be in the form or in the shape that the noble Lord, Lord Campbell-Savours, put it, but as an alternative that the Government can select, after a proper consultation. Ultimately, one way of dealing with this issue would be for there to be a simple referendum on replacing first past the post with AV. Assuming that there was a yes vote—ignore the complications that we talked about earlier on—choosing which of the three systems was best could be done by the Government. There could still be compulsion in introducing AV, but there could be a proper debate with the public and in Parliament as to which is the best system, rather than the way it is done at the moment, which is that the Government have selected a particular system of AV, about which there has been no consultation and no explanation to the public. There are two questions. First, is the drafting right? Secondly, why not incorporate in the Bill the three options and allow Parliament to decide after a public consultation which is the best?

My Lords, I appreciate the fact that, in introducing the amendment, the noble Lord, Lord Campbell-Savours, said that he did not wish to re-rehearse the issues on the supplementary vote, which we have already been through. Was it on day three of Committee? He gave us the Hansard references. Indeed, I do not want to rehearse again the reasons why the Government do not support the supplementary vote for the purposes of the Bill that were outlined by my noble friend Lord Strathclyde. I do not think that the House would welcome being detained at present.

We believe that the noble Lord’s amendments would limit voters’ choice in expressing preferences for the candidates who would be standing for election, as they would be able to express a preference for only two candidates. Our preference, if I may put it that way, is that there should be more optional preferences that can be exercised by voters without any compulsion to vote for each candidate.

There is clearly a difference of view about the type of system that should be used. I note that the noble Lord, Lord Campbell-Savours, said that it was not the classic supplementary vote but perhaps the supplementary vote with cosmetic—

The supplementary vote, but tweaked. That does not commend itself to the Government, who have indicated that their wish is for the system that I understand goes under the term optional preferences. The noble Lord has indicated that he is not pressing his amendments, but I have no doubt that we will return to this.

The Minister did not deal with my central question and the reason why I moved the amendment. In terms of legislative language, is it in good order?

Certainly not in order to achieve the objective that we as a Government wish. No doubt, however, it would achieve the objective that the noble Lord wishes. If he has any suggestions about the drafting of other options, we would be happy to hear from him. Still, so far as I am aware, the amendment would probably achieve what the noble Lord wishes to achieve but certainly not what the Government wish to achieve.

Amendment 49A withdrawn.

Amendments 49B to 50 not moved.

Amendment 51

Moved by

51: Clause 9, page 6, line 30, at end insert—

“( ) Where a voter marks a ballot with a cross against the name of a candidate, that cross shall count as if the voter had placed the number 1 opposite the name of that candidate.””

My Lords, this amendment is in my name and that of my noble friend Lady McDonagh, who is sorry that she cannot be in her place at this stage of the evening. I was rather amazed to have had an impact with my previous amendment and I very much hope that the Government will be able to accept this one.

It is a perfectly simple amendment. It does not go to the heart of the Bill, the core of the coalition agreement or anything like that. It simply says that if someone marks just one preference when they go into the polling booth and, instead of putting 1, they mark it X, that should count. I do not want to labour the point because I see the noble Lord, Lord Strathclyde, nodding encouragingly. We are in agreement on a lot of things here—we want the maximum number of valid votes in the referendum, as does he—so it is good from that point of view.

I do not understand this. My noble friend is a supporter of AV. Those of us who have been in the other place—that is, those who have been to an election count, and I do not know whether my noble friend has—know that, under the present first past the post system, if someone puts a 1 against a candidate, that counts as a vote because it is a clear indication. So it is bound to be the case under AV that if you put an X against a name, it will count as a vote; the normal rules allow for that.

I thought that the idea of this was to persuade people to use second choices. This is where the con comes in of it being the “optional” AV system. There will be a campaign out there of people saying, “You don’t have to bother with all these numbers—just put an X against my name”. That is what it is all about. The argument that AV gets rid of tactical voting is fraudulent, as I hope my noble friend will admit.

I enjoyed listening to the speech that the noble Lord, Lord Rooker, made under the guise of an intervention, but I am making a perfectly narrow point. In the Bill as drafted an X would not count, and under the amendment that I would like to make an X would count. I must say an X is about the only bit of our electoral system that is truly traditional. It goes way back to the times when many people could not write numbers. First past the post is not the only system that has been in use in Britain. If you look back to the last century there were the university seats and two-member seats in the cities. Nothing else is traditional except the use of X. I am here in the guise of a traditionalist trying to preserve the tradition of the X. The final thing I would say is that, although most people have no difficulty with 1, 2 and 3, older voters and others have perhaps become accustomed to a certain way of casting their vote, and I do not think there is any need to force them to change their mind if they just want to put an X in the right place.

I do not think this amendment will benefit the cause that I hope to see prevail at the election when it comes. People who use X may well not be the best informed voters, and certainly the best informed voters will vote for AV, whatever the noble Lord, Lord Rooker, may say. It may not benefit my cause but I do think it is a democratic advantage to allow an X and I cannot see any argument why not.

I hope that my noble friend the Leader of the House will find it possible to accept this amendment. It does seem to be eminently sensible in that people have been putting Xs on ballot papers for a very long time and it is conceivable that they might continue to do so. I am not totally reassured by the intervention of the noble Lord, Lord Rooker, that there is all this flexibility among returning officers. You might not find that this flexibility is there. I would be more comfortable if this was in the Bill and it was made absolutely clear that an X was just as valid as a 1 and vice versa. This is a very sensible amendment which all sides of the House should feel very comfortable about supporting.

I have to say to my very good and noble friend Lord Lipsey that I am totally and unconditionally opposed to this amendment. It completely undermines the intention behind those who are pursuing this legislation and indeed this system. It defeats the objective. If all the elector has to do is put a cross on the ballot paper, under this system it will invite precisely what has happened in Australia, which was referred to in that article by Rallings and Thrasher which I drew to the attention of the House a couple of weeks ago. They talk in Australia about people plumping. If you allow people just to use an X on the ballot paper, as my noble friend has said, canvassers—in particular Liberal Democrat canvassers, who are always masters of tactical voting—will go from door to door saying, “Don’t worry, don’t bother, we know it’s complicated. All you have got to do is put an X against the candidate you want”, completely undermining the system. I am surprised my noble friend did not see this problem inherent in the system when he decided to move this amendment. I do hope that the Government do not fall for this one, because if they do and then say that they have started to be flexible by giving way on amendments, that is not the kind of flexibility—

Does my noble friend not realize that he has a problem with the language he is using? He spoke about “allowing” the voters to put an X. “Allowing” is strange language to use. They are going to force voters to vote a certain way or somehow they are invalid, undemocratic or they just do not count. “Allowing the voters” is strange to me.

Behind my noble friend’s intervention is his support for my noble friend Lord Lipsey. That is what he is arguing when he argues about the word “allow”. My noble friend will want to put his case to the House in support of my noble friend Lord Lipsey. I hope the Government will not accept this amendment or anything resembling it.

I support my noble friend Lord Lipsey. The elegant speech by the noble Lord, Lord Hamilton, was a powerful argument in favour of the amendment. I was not convinced by the interventions of the noble Lord, Lord Rooker, and of some people who from a sedentary position said that the amendment in the name of the noble Lord, Lord Lipsey, is unnecessary. At all the counts that I have been to, where an X was not used—perhaps a 1, a tick or a signature was used—the votes are counted as doubtful. The candidates and the agents gather round as the returning officer goes through the count of the doubtful votes saying, “Yes, that is accepted” or “No, that is rejected”, and so on. Does that sound familiar to those others who have been candidates? It was certainly my experience.

The noble Lord, Lord Lipsey, is making it absolutely clear that if in this election an X is put on the ballot paper, it should count. It is then beyond peradventure or doubt. It is a clear indication of preference. I might have suggested some other indications of preference, such as a tick or some other indication that the candidate who has the mark next to their name—it could be a cross, a tick or another positive mark, as well as a 1—is the person chosen. I have the greatest admiration for my noble friend Lord Campbell-Savours. He and I have been friends since we were elected together all those years ago and we have worked closely together. I say to him that I do not think it would be the Liberal Democrats but the Tories and us who would go around saying, “Put an X next to our man”, or, as an old friend of mine used to say, “Just put a kiss next to the guy you like”. That is a little old fashioned, although I see the noble Baroness, Lady D’Souza, likes the thought of it, which gives me some encouragement. I would certainly support it. This reminds me of the old story about people who would come in and sign an X when you said, “Would you sign here?”. I knew someone who put two Xs. I said, “Wait a minute. What’s the second X for?”. He said, “Oh, that’s my PhD”.

I rise briefly to support my noble friend’s amendment. X has been around for a long time—not just in current elections or the past century’s elections. The amendment means that if we allowed people to put an X and everyone knew that, the various people who put ticks, 1s, kisses, sweethearts and all that sort of thing would then know that putting an X is a recognised way of voting. My noble friend is absolutely right about people not being able to read and write. I have my grandfather’s wedding certificate—or his wedding lines, as they are called in Scotland. It says, “Bernard McAvoy: his mark here”. The mark is an X. If it was good enough for him, it will be good enough for me and my noble friend.

My Lords, I rise briefly to support the amendment in the name of the noble Lord, Lord Lipsey, which is entirely appropriate. I do not quite follow the point of the noble Lord, Lord Campbell-Savours. Presumably a candidate could just go around inviting supporters to put a 1 beside their name and leave it at that. The noble Lord, Lord Rooker, is being a modern-day Lord Simon of Glaisdale, whom I remember opposing amendments that had been introduced for the avoidance of doubt on the grounds that there was no doubt to be avoided in the first place. However, in this case the noble Lord, Lord Lipsey, has raised an appropriate doubt that reflects people’s experiences. The amendment would be extremely valuable for that purpose. There is one other point. Particularly if it is a transitional period, many voters who have not got used to the new system might put an X against a name. If there are a large number of those, it would undermine the legitimacy of the system if all those votes were then discarded.

I want to go home, to be honest. I did not realise how serious my noble friend was about his amendment. I know he supports AV, which I do not; I support PR. It is not our job to sow confusion in the ballot system, which is what this amendment would do. The Electoral Commission will spend a fortune distributing leaflets to every dwelling, informing the voters about the change in the system. They will not be talking about using Xs. I gave the example from my own experience. As every ex-Member of Parliament will know from being at a count, it is the indication of a candidate by the voter that counts. The officers have a whole list of charts, showing what you can put on a ballot paper, what counts and what does not. That is how you get your spoilt votes. Not every vote is like it is. The public do not understand this but the system works and I have every confidence in it.

What if the voters put an X against one and, because of all the publicity that has gone on, they put a 2 against someone else? How do you know the X is a 1 in that case? Only an X alone on the ballot paper would indicate a preference for a candidate. That, however, is the very antithesis of what we are trying to do with the alternative vote; it is not my preferred choice but it is a choice against first past the post. I ask the Government not to put this amendment in the Bill because custom and practice dictates, with returning officers, that the vote would count. This would actually sow confusion. Are we going to send back to the other place a Bill that we got from them and say, “By the way, we want you to use Xs.”.? Come on, that is absolutely preposterous.

My noble friend did not say that we want to use Xs, just that it might happen that way. My noble friend Lord Rooker says that it is very clear that a returning officer has all these charts, but that is not my experience. I will give him an illustration and ask whether he thinks that this should have been counted as a vote for me. Next to my name—and there is nothing else on the ballot paper—someone has written HMFC. Now, is that a vote for me?

No, because no words are allowed. That is part of the rules. A tick will do if it clearly indicates a preference, but words are not allowed so it would not count.

If my noble friend wants to go home, he should not intervene in the debate. If he would care to read new Section 37A(1)(a) in Clause 9(1), it changes the present situation whereby returning officers can take any old mark and says that there has to be a 1, which is all I am trying to change.

We have a lot of choices for the Government here in what they can do. The noble Lord, Lord Lipsey, rightly draws our attention to new Section 37A in Clause 9(1), which says:

“A voter votes by marking the ballot paper with … the number 1 opposite the name of the candidate who is the voter’s first preference”,

and continues,

“if the voter wishes, the number 2 opposite the name of the candidate who is the voter’s second preference, and so on”.

I understand that the amendment in the name of the noble Lord, Lord Lipsey, is designed to deal with the situation in which there is only one X on the ballot paper. There is no X, 2, 3 or 4, nor is there X against more than one name. Under the amendment, it would not be possible to count that as a vote in favour or a first preference for the person against whom the X is granted. You would need to be an idiot not to believe that the X against one name and one name only is the first preference.

The noble Lord, Lord Rooker, who is an expert in all matters, says that it is perfectly obvious that the returning officer would treat that as voting for your first preference. Well, that would not be consistent with Clause 9(1); I do not have the noble Lord’s experience to know how returning officers might deal with it, but I suspect that some would deal with it in some way and some would deal with it in another way. It seems right that if you put an X against only one name, as your intention is so clear the right course for the Bill is that it should reflect that course. I do not think that the drafting of the noble Lord, Lord Lipsey, quite achieves what he wants because it says:

“Where a voter marks a ballot with a cross against the name of a candidate, that cross shall count as if the voter had placed the number 1 opposite the name of that candidate”.

That does not deal with the situation in which he has X against more than one name or with the situation in which he has put X, 2, 3, 4 or 5, but this is Committee and the intention of the noble Lord, Lord Lipsey, was absolutely clear. It was understood by the noble Lord, Lord Norton of Louth, by the noble Lord, Lord Hamilton of Epsom, by me and by everyone else in a particular way. I do not accept the actual drafting but I strongly support the intention behind the amendment. I apologise to the noble Lord, Lord Campbell-Savours.

Does my noble and learned friend not recognise that it completely undermines the intention behind the introduction of the AV system?

With respect to the noble Lord, Lord Campbell-Savours—and I respect him greatly on this matter—he overstated the effect of this and I also think that if in 2015 there is a system of alternative votes, some people who have been voting for a very long time might well think that the thing to do is to put an X against their favoured candidate. That should be treated as their first—

Look, I can guarantee that somewhere in the current election rules for first past the post, the instructions are that a voter places an X against the name. That is the reverse of this proposal. Yet, if voters put a 1 or a tick which is clearly indicated and is not applied to more than one name, that vote will carry for that person. The cross would count in extreme circumstances and that does not need to be put in the Bill. Doing that would send all the wrong signals to the voters when we are moving away from first past the post.

There now appears to be agreement that we all want an X against one name only to count as the first preference. The only issue appears to be whether or not one puts that in the Bill or in guidance. If one is changing the system and saying that the way you vote is by marking a 1, I should have thought that the sensible way to do that was by making it clear in the Bill. I support the noble Lord, Lord Norton, the noble Lord, Lord Hamilton, and, above all, the noble Lord, Lord Lipsey. I hope, although I accept that redrafting is required, that the noble and learned Lord, Lord Wallace of Tankerness, who has proved to be a gem, if I may say so, can see that.

In response to the amendment, the noble Lord, Lord Lipsey, has indicated that I might send him home happy. I hope that in the spirit of the remarks I am about to make he will still go to his Christmas retreat a happy man. As the noble and learned Lord, Lord Falconer, said, the amendment as drafted would not necessarily meet the point, but I hope that I can give the noble Lord, Lord Lipsey, and other noble Lords who have supported him, some clear reassurance.

The amendment is unnecessary because in Schedule 10 to the Bill, on page 294—which I hope we will get to one day—it is stated at paragraph 6(2C) that under rule 47:

“A ballot paper on which the voter makes any mark which … is clearly intended to indicate a particular preference for a particular candidate, but … is not a number (or is a number written otherwise than as an arabic numeral), shall be treated in the same way as if the appropriate number (written as an arabic numeral) had been marked instead”.

I hope that that addresses the issue. If there is one X, it will be very clear.

The important point is that the returning officer has discretion to make a judgment as to whether a clear intention has been made. That is why two Xs would not demonstrate a clear intention. I believe that one X would demonstrate a clear intention and that is provided for in the rules.

In the past, I have seen a cross on someone’s name, which has been interpreted as, “We don’t want this one, and I am ruling them out”. Perhaps the situation is not quite as clear as the noble and learned Lord genuinely thinks.

It is a matter for the returning officers to determine ultimately whether they believe an intention has been indicated.

I thought that the general agreement around the House was that if there is an X against only one name, we want the returning officer to say yes. That is a vote for a first preference. If you are saying that X is okay, but you are leaving it to the returning officer, that seems to be inconsistent. Why not put it in the Bill?

There may have been a misunderstanding. I wanted to make a particular point to the noble Lord, Lord McAvoy, who said that an X had been put through a name, rather than against it. There was a suggestion that in such cases, far from wanting a candidate, the voter did not want them. Those are circumstances where it would be invidious to suggest what would happen. Certainly when an X is marked against a name, it is clear from the provision in the Bill that the vote would be valid.

The noble Lord, Lord Campbell-Savours, is concerned —and I understand his concern—that this might lead to undermining the system. I think it was the noble and learned Lord, Lord Falconer, who indicated that if there was a yes vote in the referendum, in the run-up to a general election in 2015 there would be advertising making the position clear. There were indications that that actually happened in the Scottish elections where a single transferrable vote requiring numbered preferences was used.

The night is drawing on but perhaps I may relate one small anecdote. I stood in the first ever European election in the south of Scotland and I have the dubious distinction of being the first person ever to lose their deposit in a European election. I have no doubt that my noble friend Lord Alderdice will recall that the 1979 European elections in Northern Ireland were carried out on the basis of the single transferable vote, whereas in the rest of the United Kingdom they were carried out on the basis of first past the post. A corner of Galloway in the south of Scotland received Ulster TV, on which the advertising encouraged people to use their vote by marking 1, 2 and 3. In several polling stations in that part of Galloway a number of ballot papers were marked with a 1, 2 and 3, although the election was on the basis of first past the post. However, there was agreement that the number 1 on a ballot paper would be accepted as a valid vote.

Let us not underestimate the voters. There will be ample advertising to indicate that the nature of the election will be a preferential vote system. I do not believe that that will undermine the election or that it will give rise to the concerns raised by the noble Lord, Lord Campbell-Savours.

On the question of undermining, has the noble and learned Lord, Lord Wallace of Tankerness, consulted his election guru sitting near to him on his right and asked him what he thinks the effect of this would be in terms of undermining the AV system, which he has been advocating so passionately over recent weeks? He is sitting there and has not said a word. It would be very interesting to see whether he is prepared to get up and advocate this when he knows that Liberal Democrats more widely would be opposed to it.

I do not think that anyone is advocating this—in fact, the opposite is true. We want to make sure that there is a proper advertising campaign for the system. I hope that I have said sufficient and that what is already in the Bill is enough—that is, if someone places an X against a candidate’s name, the intention will be clear. It will be taken as being the equivalent of putting a 1 and the vote will count.

The Minister is in such a jolly mood that I am reluctant in any way to spoil his anticipation of hogmanay by cavilling at his remarks. However, I should say that the last time a Minister pointed to a schedule to the Bill as being the right place to deal with a certain issue, I read that schedule for the first time and found that five amendments badly needed to be made to it. They now feature on the Marshalled List and will be debated by us in the new year.

I have heard what the noblea and learned Lord has said and I have looked at the schedule to which he referred. I cannot help thinking that there is a bit of a clash between the words in the first part of the Bill and those in the schedule. A helpful way forward—I suggest this to the Minister with due humility—might be if the Association of Electoral Administrators were to write to him and he made available to the House a statement saying that the association would interpret the Bill as it stands with those two provisions in the way that he has suggested they should be interpreted—namely, that a mark against one candidate will be accepted. If he were able to make that small concession, I would happily drop this amendment and not resurrect it on Report.

The noble Lord is inviting the electoral registration officers to write to me and clearly, if they do, I shall make what they say available. The schedule states:

“A ballot paper on which the voter makes any mark which … is clearly intended to indicate a particular preference for a particular candidate”—

I think I would include within that putting an X or even a tick against a person’s name—

“shall be treated in the same way as if the appropriate number … had been marked”.

I hope that the wording there is clear but obviously the electoral registration officers may wish to clarify that. I suspect that it will be a while before we get to Schedule 10, although perhaps not as long as might otherwise be the case.

I think that the noble and learned Lord would do well to try to get something that nails this point once and for all before we reach the schedule. We have been discussing it for 26 minutes tonight and we can discuss it for another 26 minutes at a later stage, whereas it is well within his powers to deal with it by getting in writing from the appropriate electoral registration officers a clear statement of how they read the Bill. I think that it can be read in two ways, although I accept that his way of reading it is one. With that, and given the hour and the imminence of the festivities, I beg leave to withdraw my amendment.

Amendment 51 withdrawn.

Amendment 51A not moved.

Amendments 51B and 51C had been retabled as Amendments 52B and 52C.

Amendment 52

Moved by

52: Clause 9, page 7, line 2, after “reallocated” insert “by the proportion of its preference (that is to say if the candidate was ranked 3 then one third of a vote, if ranked 4 then one quarter of a vote and so on)”

My Lords, before we come to consider my noble friend’s amendment, I ought to advise the House that it is customary that we conclude our business at 10 pm, other than by agreement.

I was happy in discussions with the usual channels to agree to the House going until taxis. Taxis is commonly understood to be 10.40 pm. We are now at 11.10 pm and this would be an appropriate moment for the House to draw its proceedings to a conclusion, given the inclement weather, among other good reasons.

I do hope that is going to be the case, and I was rather looking to the government Benches to move that the House now be resumed. It would be very helpful to the House if the government Benches indicated exactly what they do intend, because there are many people at work this evening in the House and we have a number of Members here listening to the debate. The agreement was to taxis; we are now well past that point.

My Lords, this is a fairly corrupt voting system. I am not going to go over the details of what we discussed in the earlier clauses; this amendment essentially deals with the second preference of the losing candidate.

We had a speech earlier on, which may have been from the noble Lord, Lord Lamont, but was certainly from the Conservative side, which quoted what Winston Churchill had said about the alternative vote and what made it a very false system—that the second preference of the voter who had voted for the least popular candidate was used to create the winner. On balance it looks like you are giving two votes to voters who choose the least popular candidate. You are not giving two votes to the voter who chooses the most popular candidate, or the second most popular candidate, but the voter who chooses the least popular candidate is effectively given two votes.

I do not think that is fair, and we have to address this issue of using AV, which the Lib Dems now appear to love. I have visions. I have been listening today to the debates, which will not get reported, but I cannot wait to watch the television studio performances in March, April and May of the leading lights of the coalition Government as these provisions are dissected by the Paxmans of this world. They are paying no attention to it now—and I am not complaining about that—but who, when it comes to the minutiae, will start to think back and say, “Oh, bloody hell, they raised this in the Lords and we never listened to what they were saying”.

On this one I am giving you another lifeboat; what to do with that least popular vote that looks unfair to the public. Why should someone have two votes? It is clear that the alternative vote can be used to ensure that every voter can influence the results in a way that is not possible under first past the post. I freely accept that it can be used. Under this Bill, however, it is not possible to claim that every voter will be able to do it because it is an optional system. You still have the problem of what you do at the end with the vote that gets transferred.

Why should the second vote of the person who has voted for the least popular candidate have the same value as the first vote? This is not original; I read it in some academic text somewhere, although I cannot remember where and I have not been able to go back to it. In my view it is quite simple: why should it have the same value? Why not put the value on it that the voter, or the voters as a whole, created for that candidate? So, if you have five candidates—one, two, three, four, five—and the fifth one is coming out, the second preferences for that candidate are worth a fifth of a vote to whoever they have chosen among the others. If there are only four candidates, you give them a quarter of the vote. If there are eight or nine candidates, and the bottom one finishes ninth, then the second preference is worth a ninth of a vote to the candidate that they have chosen for it. That to me seems fair. You are not giving people two votes, which is what you are effectively doing under the present system, but you are giving them the vote in proportion—that word might not go down too well here at the moment—to where they came on the ballot paper.

I think that has a fairness appeal to it. It is much fairer than giving people two votes. It seems obvious, it is fair, it is practical and it avoids the central criticisms levelled against the alternative vote, leaving aside whether it is compulsory to use all your preferences or not. One of the central criticisms of it is—let us put names on it—if the BNP candidate comes at the bottom. We may have a view about people who want to put the BNP candidate as their first choice, but why should those people’s second choice have the same value as their first choice? It does not really matter who came bottom, but that is the reality we are coming to. That is a very serious criticism against the alternative vote. It was made by Churchill, it was quoted in this House and I think it has some value. So let us do something about it.

My suggestion does not affect the Bill, the date or any preparations for the referendum, it does not affect the day; it affects only the way you count the votes. That is all. In that case, it might take a little bit longer. I know someone is going to say, “Oh, we can’t have decimal points on the vote”. Why not? We can count. People understand decimal points. Talking about voters not understanding things, I had people who could not write, but they could fill in a full perm on a football coupon though, and the women could read a knitting pattern, so do not talk to me about people not understanding. They understand the value whether it has a decimal point or not. It is either worth more or worth less. It is fair and very simple, and I offer it at this point in time—23.17. I do not mind when it comes into play. I would like to have some really good arguments about why we should not do this because basically, as is known, I prefer a PR system However, I am trying to make this present system, if this is what is going to be driven through by Parliament—I do not say that pejoratively—fairer to the voter and easier to explain in those television studios when you are on the third degree. I can say one thing for sure: this referendum will not be as popular in the television studios as Mr Clegg was in those first question and answer sessions. The heat will be on and they will be taking apart the system, looking at the nitty-gritty, looking at all the contradictions about what can happen with an optional AV system, which we have explored here over the past six days. The central criticism is the one about the second preference for the least-popular candidate, so let us not give them a full vote. Let us give them the vote where they came on the ballot paper. I beg to move.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My Lords, I very rarely go to bed at night thinking about alternative voting systems, I must confess. Like the noble Lord, Lord McAvoy, I am a great believer in the first past the post system. It may not be perfect, but I suspect that it is rather better than any other system that anybody might like to introduce. Having said that, I think that the noble Lord, Lord Rooker, has to be right. I agree with my noble friend Lord Lamont that, if you want a fairer system, you should do something to make sure that everybody’s second votes under an alternative vote system do not all count for the same and that they are graded.

The problem is that, in its wisdom, the House has decided that we should hold the referendum on the same day as the local elections. I have argued in previous debates that it does not give us a very good opportunity to explain to the country an extremely complex change in our voting system when we are trying to hold local elections and elections for the Scottish Parliament and Welsh Assembly at the same time. I hate to say it to the noble Lord, Lord Rooker, but to try to explain his even more complex way of doing the alternative vote would take even longer. I suggest that, before we even entertain the idea, we agree that the vote should be held on a different day. I was quite relaxed about the referendum being held, let us say, a month after the local authority elections. If we are going to go down the path suggested by the noble Lord, Lord Rooker, perhaps we need an even bigger gap between the local elections and the referendum, because an awful lot of explaining of this major change in our electoral system will have to be done to the country.

Does the noble Lord really believe—I am sure that he does not—that the country will even understand AV as it is proposed in the Bill? I have no doubt that 99.9 per cent of the population will not have the first idea how AV works, so this additional little complication will be neither here nor there.

I accept that there will be great difficulty explaining to the country what the implications of the AV vote will be, but that is why the referendum should be held on a separate day. I am convinced that it will be extremely difficult to explain to the country what the AV vote is about. If it is held on the same day as the local elections and all the other elections, it will be virtually impossible. People will not understand the implications of any different voting system if we stick it in on the same day as the local elections. However, that is what the House has decided to do, in its wisdom, and we are therefore in a very difficult situation, making the whole business of what the vote is even more complicated than it was already.

I am just amazed at how calm everybody seems to be in this House, collectively, about allowing the Bill to go through and allowing the referendum to be held on the same day as the local elections, which will fundamentally change the whole way that this country votes, when I think that we mostly agree that people will not really understand the implications of what they are doing when they vote in that referendum.

My Lords, this is by no means the first time that I have been not asleep at this hour due to the joys of debating the merits of AV and so on, but there is something still more exciting to come, because before the Bill is finished I confidently predict that at one or two in the morning we shall get on to the relative merits of d’Hondt and Sainte-Lague and the three Imperiali largest-remainder formulae, a matter on which my noble friend Lord Campbell-Savours will no doubt illuminate the House as he has on this. I cannot support, however, the amendment put forward by my noble friend Lord Rooker any more than he could support the one put forward by me earlier.

It takes me back to the days, the happy days indeed, when I was sitting on the Jenkins committee. We got many, many proposals on the Jenkins committee for various systems of weighted voting. D’Hondt as the noble Lord, Lord Henley, with his great knowledge of these matters surely knows, is not a weighted voting system. All the many proposals on weighted voting systems had one factor in common; they were invariably written in green ink and therefore we on the commission did not have to spend as long considering them as we might otherwise.

There are two reasons of substance why this amendment should be rejected. The first is that Churchill’s neat phrase does not reflect the reality in many voters’ minds. It is not true that the most important choice for voters is who they put first and who they put second and they do not care who they put sixth and who they put seventh. If you take my case, in a constituency where there were some serious candidates and towards the bottom of the ones with a chance there was the Democratic Socialist Crosland Labour-affiliated candidate and, on the other hand, the British National Party candidate. I would feel extremely strongly that I preferred the first of those options, whatever I was doing further up the list between those candidates who really had a chance. In reality, there is no way of measuring the strength of people’s preferences, or the amount of thought they have put into them, and it is therefore better to treat all preferences, as AV does, as of equal weight.

The second argument has been touched on and it concerns complexity.

When my noble friend goes into the polling booth and casts his first preference for Labour and he might be tempted to cast his third preference for the Liberal Democrats, is he, in his own mind, giving that third preference the same weight, when he votes for the Liberal Democrat as he would to Labour, his first preference?

It depends on the circumstances in the particular constituency. In my own constituency of Brecon and Radnor, there are very real choices to be made, due to the fact that the Labour candidate, alas, is not a front-running candidate in that seat. That is a choice that I hope to avoid having to make when AV has come into being and I can put my first preference first and then my other preferences in their order without any danger of defeating my preferred second choice by voting for my preferred first choice.

I was going on to say that I think the complexity of the Rooker system and the sheer difficulty of explaining it counts very heavily against it. I do not take the view that voters need to understand absolutely everything about voting systems in order to cast their vote, any more than, when I get into my car and turn the key, I require to know all about how the engine works before I drive off. I need to know certain things, such as how to steer, but I do not need to know how the engine works. There are degrees of complexity and, frankly, the Rooker system would be simply impossible to explain. I do not think many people would buy the explanation that was being given. I am sure my noble friend did not have this even in the back of his mind, but one is tempted to think that a complication of this kind is a well-designed sabotage bomb to make sure that the referendum on AV is lost. Therefore, I cannot support the amendment and hope that the House will not support it tonight.

One of the advantages of the Leader of the House effectively throwing the Companion to the Standing Orders out of the window is that we have this extra time to contemplate voting systems. My understanding has always been that you think what outcome you would prefer and then choose a voting system to get that outcome. That is why the Liberals have always campaigned and pushed for PR and the single transferable vote, because they want to have more power and influence.

While my colleagues have been talking about the theory, I have been looking at what might happen in practice if we had an election for the leader of the group of Labour Peers on this side of the House. There are five candidates, Campbell-Savours, Falconer, Foulkes, McAvoy, and Rooker. Those were the only five candidates put forward. Alphabetically, Campbell-Savours is number one, Falconer is number two, Foulkes number three, McAvoy number four and Rooker number five. There are 40 electors. Some of them are not here tonight. They are around somewhere and will come in if necessary. If we were to carry out this election under first past the post, the result might be Campbell-Savours 10, Falconer nine, Foulkes eight, McAvoy seven and Rooker six. In that case, Campbell-Savours would be elected and would be our leader. That is the system that we all know. Campbell-Savours would be welcome and we would accept him as our leader and worship him and follow his every lead. He would carry out that leadership with his usual kindness, wisdom and grace.

However, we could have accepted one form of the alternative vote, which from my recollection of what my noble friends Lord Campbell-Savours and Lord Rooker said in previous speeches, is the Australian federal system in which everyone has to vote one, two, three, four, five. Then we might get this result: 10, nine, eight, seven, six on the first vote. Then Rooker is eliminated and all of his votes would naturally go to Falconer. Noble Lords have seen that in the debates that have taken place. Falconer would now be leading with 15 votes. Campbell-Savours would have 10, Foulkes would have 8 and McAvoy would have seven.

Does my noble friend realise that he is starting to give me a bigger headache than my noble friend Lord Rooker?

It will all become clear.

McAvoy is now eliminated. His seven votes are distributed. Four go to Falconer and three go to Foulkes because he cannot quite make up his mind. He is hedging his bets and sees the way the wind is blowing. That leaves 10 to Campbell-Savours—he has not attracted any more votes—19 to Falconer and 11 to Foulkes. But supporters of Campbell-Savours, who is a Foulkes fan, give all their votes to Foulkes, who gets 21 and Falconer only 19. The person who was the third preference is elected. That is the sort of thing that can happen with the alternative vote, as my noble friend Lord Rooker has pointed out on previous occasions.

So my noble friend Lord Rooker has come up with the most imaginative suggestion. It may be complicated for the counters, as the noble Lord, Lord Lamont, said. We do not need to worry about the counters, because that will all be done electronically—and we all know how efficient computer systems are at producing election results. Go back to the Scottish elections of 2007 and you will know how really efficient they are. So we do not have to worry about that. We do not really have to worry about having to explain it to the electorate, because they will just vote in the same way—one, two, three, four, five. It is a much more logical system. I agree with my noble friends who have supported my noble friend Lord Rooker—your second preference should not have the same weight as your first preference, and your fourth or fifth preference should certainly not have the same weight as the first preference. On the basis of the amendment proposed by my noble friend Lord Rooker, he would certainly never get elected on my five choices. I have not had the time yet to work out who would get elected on the amendment proposed by my noble friend Lord Rooker, but later on—today or tomorrow—I shall be able to give noble Lords the outcome in relation to that.

I do not think that we need to worry about how complicated it is for the counters—

I do not want to sound like an intellectual anorak, although I am probably not in any danger of that, but it does not gel with me when people say that the electorate do not need to know. Surely there is an intellectual and principled basis that the public should own, have knowledge of and fully understand all aspects of any system that elects a political representative.

Absolutely. That is why I do not support this system. The reason I support the amendment is because it makes the alternative vote system look so ridiculous that we come back to first past the post.

My Lords, one can only think that this is like Heathrow at the moment. First we are told by the Government Chief Whip that we are going to go on till taxis, then we are told that we are going to do the next amendment—and then the Leader of the House says that we are going to go on to the end of this particular clause. So information is short. I look across at the Benches opposite and am glad to see that Ministers are using the seating to try to get a bit of a snooze in while this debate is going on. I imagine that quite shortly blankets will be produced for people across the Benches.

This is quite an important amendment. The need for it comes from the fact that, as a result of it being a compulsory referendum, you need to resolve issues about how the alternative vote system works. My noble friend Lord Rooker raises the question that your third, fourth and fifth preferences may not be treated with the same enthusiasm as your first and second preferences and he deals to some extent—although he eschews this in what he says—with the problem that your third, fourth and fifth preference may include unacceptable extremist parties. We do not want their second preferences to determine the vote in the election. We have to address this issue if there is going to be a referendum. We have to address it on the basis that, whether or not you like AV, if the AV referendum wins, how we deal with the amendment proposed by my noble friend Lord Rooker will determine how we deal with second, third and fourth preferences.

I can see the intellectual force of the position taken by the great intellectual, my noble friend Lord Rooker, but it seems to me to lead to the following problems. First, it says,

“reallocated … by the proportion of its preference (that is to say if the candidate was ranked 3 then one third of a vote, if ranked 4 then one quarter of a vote and so on)”.

So if there are 12 candidates, as there are in by-elections from time to time, it could go down to as low as one-twelfth of a vote. That is complicated and it leads to the proposition that somebody could win an election by one-twelfth of a vote, because you end up with one-twelfth of a vote being given. If number one and number two are equal and the twelfth candidate’s preferences are given and it is a twelfth for one and none for the other, you win by one-twelfth of a vote. That strikes me as an absurd system of a very high degree of complexity. The noble Lord, Lord Rooker, has indentified a real problem in relation to AV which has to be addressed in the Bill, because it is a compulsory referendum. We can draw our own conclusions as to whether AV is the right system or not, but this does have to be addressed. While I recognise the problems that the noble Lord, Lord Rooker, points out, my own view is that the right course is to go with something that is clear, simple and practical, rather than a system that—

My noble and learned friend says that the system is complicated. How would it be complicated with electronic voting? There would be no manual intervention at all. It would all be sorted out by the computer run.

Lord Falconer of Thoroton: I do not think that the count would necessarily be complicated; it is the explanation of “If you give me your third preferences, I will get one third of a vote”. In the course of the counting, fractions of votes will be counted against individual candidates; that strikes me as complicated, lacking in clarity and implausible as far as the electorate are concerned. To be told that I have got two-thirds of a vote more than you seems to me to be an unconvincing electoral system. I do not know of any electoral system in the world where you can win by less than one vote, although maybe there are some. I suspect the reason why there are no systems where you can win by less than one vote—

One of the valuable lessons that we learnt from the previous Government was that new computer systems cost fabulous sums of money and never seem to work properly.

I do not think that we needed the previous Government to tell us that. Nor do I think that all computer systems did not work. I do not know where computer systems are involved heavily in counting at the moment, but I accept the basic proposition that eventually they will be.

I think my noble and learned friend has missed one of the merits of the system. If the canvasser goes to the door and says to the voter, “I’m not asking for you to give me a full vote, but if you just vote for me as your third preference, I will get one third of the vote”, that is actually an incentive for those people who might worry that if they give their third preference weighted at 100 per cent in terms of value, they might actually be interfering with their first preference. I would have thought that that is quite a considerable argument.

It is a matter of saying, “How much do you like me?” and being told, “Not enough to give you the whole of my vote”. The answer could be maybe a quarter, a fifth or a sixth. The candidate says, “Unfortunately, there are only four candidates in this, so you can’t give me a sixth”. I do not think that it is realistic. I recognise the problem, but I do not favour the solution. I described the noble and learned Lord, Lord Wallace of Tankerness, as a gem but what I meant was a pearl.

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

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

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

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

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

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

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

I think that the noble and learned Lord has missed the point of the noble Lord, Lord Lamont, which is critical to the operation of AV. The noble Lord has hit it right on the head. The additional preferences, the second preferences, of those voters who voted BNP as their first preference, when transferred, could take the top candidate over the 50 per cent threshold and thereby secure the election of that candidate. At the same time all the other second preferences, or whichever preferences, of all the other candidates would be completely ignored. That is the central flaw in the AV system, which is why Conservatives should be opposing it. The only AV system that gets over that problem is the one that I designed—SV. It is built to avoid precisely that happening, because the second preferences are all transferred in one go to the top two candidates, and you avoid all that nonsense. The noble Lord hit it right on the head.

Because of that second count, everyone, other than the person who came bottom the first time, still has their first preference. It is the first preference that counts then, and it may be that the person who came top the first time gets elected or the person who came second takes over. Those people’s first preference will still count. Some people say that you might prefer your second preferences over your first; that is a matter for the individual voter. However, this allows individuals to give their first preference to the party that they actually want to support, and then they can vote for a second preference, a third preference and so on.

Why should it be only the second preferences—those cast as the candidate at the bottom—that are the ones to take them over 50 per cent? Why just those? Why not all the others?

That is the way that particular system works. It is the system we have used in this House for electing the Lord Speaker. I do not recall anyone challenging the validity of the system working for that purpose. It is the system that works in Scottish local government by-elections and I have never heard any suggestion that it is perverting the result.

What it could do is potentially dissuade voters from exercising the wider choice that is offered by the alternative vote. If it may be suggested that their subsequent preferences are somehow not going to have any weight at all, they may be deemed to be wasted votes. I would hope there was some degree of consensus that, whatever system you wish to adopt, the idea of having a wasted vote is one we should seek to avoid. By the proposal put forward in this amendment, some votes, if they are down to fractions, cease to have the value which I should like to see—

We could go into the merits of the first past the post system and there are a considerable number of wasted votes for candidates who do not succeed. In some cases it can be up to 40, 50 or 60 per cent of votes for candidates who do not win. Under the present system, anyone who votes for a candidate who wins, which is more than a majority of one, is technically described as a wasted vote, too. We are getting into the debate of the first past the post system against the alternative system. That is a matter for the referendum campaign. We could go round the houses debating the relative merits of the system, as I will do during the referendum campaign, but what I am seeking to do for the purposes of this amendment is to indicate that the reallocated votes of the fractional votes imports a degree of complexity and it means that votes do not have full value in subsequent counts, which would happen under the system proposed in the Bill.

Some Members opposite seem to adjust the rules of the House as we go along. Up till now, when someone has got up the speaker goes down. I will watch it carefully in future.

The noble and learned Lord, Lord Wallace, used again the election of the Lord Speaker as an example. Previously it was used by his colleagues who also used the election within a party of a leader. These are not party political elections, however, as between parties, as we saw when we ended up with the noble Baroness, Lady Hayman, as the Lord Speaker. Within a party, it is not party political. Surely these are not parallels that can be drawn.

To suggest that the election of a leader of a party is not political—I understand that it is not party political but maybe it will be factionally political within a particular party and therefore the comparison is apt. Also, as the noble Lord would recognise, Scottish local government by-elections are now conducted on an alternative vote basis and they are very party political.

They are also eccentric and aberrant in some ways because, if you take a four-seat ward, as we have had recently in Edinburgh, you can get a councillor of one party which managed to scrape one seat in that four-seat ward, he retires but it is the party which got the three seats which manages to get the by-election success because it is the biggest party. So it is aberrant.

My Lords, the noble Lord, Lord Foulkes, is again rehearsing the kind of arguments that we will no doubt exchange in some television or radio studio in the coming weeks and months. I thank him for giving me forewarning of the arguments that he proposes to adopt. With regard to the amendment proposed by the noble Lord, Lord Rooker, as I have indicated, we do not favour an approach that would involve a reallocation of votes on a fractional basis. There are practical considerations. Nor, I understand, does the Front Bench opposite. There could be complications for voters in understanding it. I take the point that all the voter has to do is go into the polling station and write 1, 2, 3, 4. Nevertheless, understanding is required. I am not aware of anywhere else that uses the system proposed by the noble Lord, Lord Rooker. Therefore, I urge him to withdraw his amendment.

The noble and learned Lord is right that I do not support this amendment but he is completely wrong to say that we should not debate the anomalies in the AV system that is being proposed. As we keep saying, this is a compulsory referendum so the system that is being adopted must be subject to rigorous scrutiny to see what its shortcomings and anomalies are. The points that the noble Lord, Lord Foulkes, is making are inevitable when you are looking at the detail of a system.

My Lords, I decided not to move two earlier amendments today. I wanted to concentrate on the main cause, which is this one and I freely admit is not run of the mill. I came across a reference—only a reference—to the system in a footnote to some text I read recently. I thought it was the solution. One way or another, the central flaw in AV has been explained by the noble Lord, Lord Lamont, and my noble friend Lord Campbell-Savours. It will be incredibly difficult to explain to people.

I am not arguing about the text; I know what I understood and I explained what I wanted. It is the vote for the person who comes last, whether they are third, fourth or fifth, that gets transferred. It is true that that is the only vote that gets transferred. I might be accused of being completely unfair but I look on that allocation as a new vote. The others have not been altered. These are new votes coming into the system. If there were seven candidates, the one coming seventh would be knocked out. I have assumed that the bottom one would be knocked out but sometimes it might be the bottom two. The reallocation of the second choices of the voters who voted for the candidate who came seventh would be new votes for the top six. In a way, it is not the same election. That is what is so unfair about it. Nobody else’s second preference comes into play. As I say, there is an inherent difficulty in this system, which will be apparent only when we come to use it.

Does the noble Lord agree, therefore, that there is an advantage in being a Monster Raving Loony Party voter? You automatically get two votes. They are two votes because the first was for the Monster Raving Loony Party and the second is for someone else, whereas every other voter has one vote because he does not change it at all. The argument stands constantly, which is why AV is such a silly system.

It is inherently difficult when you are asking people to go into the polling station and make their choices on a ballot paper, whether it is an optional system or not, without knowing what the outcome of the first choices will be. This is why the French have a two-round system. You can see what happens and adjust your vote accordingly. You do not get the chance to do that with this system; it is all or nothing when you put your preferences in. All I am saying is that there must be a fairer system than what is proposed. This will fall apart.

I will conclude on this. Examples have been given of the Scottish by-elections. We have not tried this in 600 or 650 constituencies in every part of the country under the full glare and analysis of every local anorak. I am not an anorak; I resent that term, I must say. This system has not been exposed to what will happen in 2015, assuming five years and assuming this system. That is where it is likely to come apart and there will be a backlash. I am trying to put some more fairness in the system. I made the point earlier about the fairness in the constituencies, the equal numbers. It has to be apparent to people that what is proposed is a fairer system—I might argue about the detail, but I agree with that. This puts a bit of fairness into the way the votes are counted under this proposed AV system. It would not be my first choice but it is genuinely trying to put fairness into the system. I am not saying it is perfect and it would be complicated for the counters. If it is done by computers fair enough; it is not a problem but it might be difficult to explain. I have to say though that it is not half as difficult to explain as the paragraphs the noble and learned Lord, Lord Wallace, read out when explaining the Government’s views. I kept thinking, what will that sound like in a television studio?

I can honestly say that I will not be returning to this amendment but I may come back to some of those I did not move. I beg leave to withdraw this amendment.

Amendment 52 withdrawn.

Amendment 52A

Moved by

52A: Clause 9, page 7, line 6, at end insert—

“( ) Any reallocation of votes referred to in subsection (3) shall only occur if the eliminated candidate received over 5% of the vote in the first round or the round before that candidate was eliminated.”

My Lords, like most of your Lordships I do not go to bed dreaming of the alternative vote. In fact, at this hour and having got up today at 6 am to come here I have rather forgotten what going to bed is like at all.

Like the noble Lord, Lord Deben, I am a recent entrant to this House. Unlike him, I was never a Member in another place. I do not find the debates we have had on this Bill, particularly today’s debate, in any way calculated to bring this House into disrepute. It has been a thoughtful, if somewhat protracted debate. Whether the Faustian compact which the parties opposite have entered into might bring politics into disrepute is of course another matter.

One thing that surprised me today—as it has on previous occasions—is the remarkable claim that this Bill is somehow the greatest constitutional Bill ever brought since the Great Reform Act of 1832, which we celebrate in Newcastle by having a statue to Earl Grey who promoted that remarkable piece of legislation. Surely it is not to be compared with the extension of the franchise, first of all to all male voters and then eventually to all women voters, let alone the Parliament Act of 1911 which the noble Lord, Lord Strathclyde, expatiated on with some passion during a previous debate. Nevertheless, we are where we are and we certainly still have much to discuss.

I could not possibly compete with my noble friend Lord Campbell-Savours and his mastery of the electoral consequences of a variety of systems, nor could I imagine acquiring the extensive knowledge that his research has produced. I would however suggest that he slightly errs in saying that Liberals and Liberal Democrats have opposed AV. In fact, 80 years ago this very month an agreement was reached between the then minority Labour Government and the Lloyd George Liberals to bring forward proposals for an alternative vote. I think they were overtaken by rather more dramatic events even than we have experienced recently within a few months of that date. It may have been a different system but it was AV.

The noble Lord, Lord Foulkes, who has spoken about theoretical elections among Members on these Benches, will know as I do that the Labour Party has most of its elections conducted on the alternative vote system. Indeed, the use of that system deprived me of the opportunity of joining the noble Lord, Lord Deben, in another place some 35 years ago. I maintained the same vote in three ballots for a selection in Newcastle East, whereas the successful candidate eventually, one Michael Thomas who will be known and remembered fondly by some on the Benches opposite, succeeded in garnering the votes of the unsuccessful candidates. I do not complain about that. In fact, I remain in support of the alternative vote.

I do that after 51 years of engagement in elections. I have been a candidate in council elections 16 times— 15 times successfully and once unsuccessfully in a parliamentary election. I have been an instructing solicitor in public inquiries into boundaries and I have given evidence at public inquiries into boundaries—an opportunity which will of course be denied me in future if the Bill goes through in its present form. It will be denied not only to me, which is hardly relevant, but to many other people as well. Nevertheless, I support the principle of the alternative vote.

However, we come to the method. Under my amendment, we are back to the business of thresholds, which we discussed in another context earlier. Reference has been made by the noble Lord, Lord Lamont, and others, today and previously, to Churchill’s dictum. Others more recently have also pronounced their concern that votes for very fringe-party candidates may then be redistributed. I heard David Blunkett, for example, expressing that concern on the radio, and others have made that point.

The amendment tries to minimise that effect. It points to a threshold only above which votes would be redistributed and votes for candidates receiving very small percentages of the vote would not be redistributed. That seems to be a simpler way of dealing with matters. It is comparable to the position of the deposit in parliamentary elections and is preferable, if I may say so, to the amendment of my noble friend Lord Rooker, because, on his formulation, in a three-way marginal such as Oldham, the votes, as it turned out at the last election, are split almost exactly three ways. On the formulation of my noble friend, someone who is only 2,000 votes behind the successful candidate, but very close in percentage terms to achieving a third of the votes, would have had their votes transferred, with only one third being valid, despite their votes having been very close to the candidate with the highest number of votes. That does not seem to be a sensible approach.

My amendment would in this case not have affected the outcome as between those three candidates, but it is a way of meeting at least some of the objections to the proposition that Monster Raving Loony Party candidates, or the BNP or whatever, might unduly influence the outcome of an election, having achieved only a small percentage of the vote. That is a way of improving the AV system. It is simpler for the electorate, it is simpler also in terms of the count and does not do any violence to the principle of the alternative vote. I beg to move.

My Lords, I can understand the case that my noble friend Lord Beecham is making and it is seductive. However, it removes some of the most desirable features of the AV system, which is designed to produce a much wider choice for voters. That includes, for example, the possibility of voting for a party that really has no chance and which you know will come bottom of the polls, without at the same time wasting your vote. There might be, for example, a local campaigner with a specific goal which you strongly support, but you do not necessarily want to waste your vote entirely by supporting that candidate if there is a danger that it will be eliminated. The amendment means that it is less likely, rather than not likely, that the winning candidate will get 51 per cent of the vote. As we know, under the present system, only a third of Members of the House of Commons received as much as half of their electorate’s votes. We do not have an exact figure as to what that would increase to under AV, but if you said 86 per cent or 90 per cent, you would probably be right. The amendment would reduce that back down again nearer to the present third. For those reasons, I cannot support my noble friend in his well meant amendment.

My Lords, I support the amendment of my noble friend Lord Beecham but only in the context of where we are with that system. I believe very strongly that the first past the post system should stay and I do not want anyone to say—although, of course, I cannot stop anyone saying it—that supporting the amendment in the context of where we are necessarily means that I am deserting my support for first past the post.

This is a modest amendment. On the other hand, romantic candidates, Official Monster Raving Loony Party candidates and the “independent with a cause” candidate can all sound okay but, in a serious parliamentary democracy, is it right that such a small proportion of the vote should be used elsewhere? We are running serious elections for serious and responsible elected positions and, although having the freedom to stand for election and to campaign and so on is an absolute right, I do not think that that type of candidate who polls less than 5 per cent of the vote should be allowed to distort the electoral system and the democratic process. Then again, I keep asking myself why people get involved in that kind of party when it is all a lot of nonsense. Nevertheless, speaking as a realistic politician, I have to say that the amendment is before us and it needs to be discussed. However, if anyone wishes to use their charms on me, I am still willing to be convinced by an objection to my noble friend’s amendment.

My noble friend Lord Lipsey is great to listen to and I admire him. He is a formidable person but I do not think that he came up with any reason why the amendment should be opposed. He came up with an intellectual reason, and it is right and proper that that is aired. However, we have to take the real world into account and I do not think it is right for a party with a small percentage of the vote to distort the vote. In the context of what we are discussing, I have no hesitation in supporting my noble friend’s amendment.

The amendment of my noble friend Lord Beecham basically says that, if a candidate gets 5 per cent or less of the vote, the second preference votes for that candidate are not reallocated. I do not think that it necessarily follows that, if you get a low vote, your second preference votes should be any less valid than if you get a higher percentage of the vote. In certain circumstances, one can imagine Green Party candidates, for example, getting a very low vote—well below 5 per cent. The noble Lord, Lord Deben, in regarding Green Party candidates as more worthy than those of the Official Monster Raving Loony Party, is effectively making a value judgment about parties based only on the number of votes that they receive. It seems to me that it is very difficult to see a logical or intellectual basis for saying that 5 per cent or below is not an acceptable figure. Is there a political argument that says that 5 per cent or less is the sort of figure that extremist parties get? Possibly there is but, again, I believe that in relation to an electoral system it is dangerous to start characterising people whom you do not like as “extremist”. Of course, we all regard the BNP as extremist but there are other parties that some of us would regard as extremist and others would not. Therefore, although I understand the purpose of my noble friend’s amendment, I do not think that it stacks up, so I am afraid we will not support it.

My Lords, I agree with much of the analysis of the noble and learned Lord, Lord Falconer. Just because the total is a small figure, there is no reason why the second preference votes should carry any less value. It is also important to reflect, as the noble Lord, Lord Lipsey, said, that the purpose of a system is to provide a wide choice for voters. Under this system, every vote has equal value and is allocated to the candidate who is ranked highest in the preferences marked on the ballot paper and who is still in the contest. It is only fair to assume that in a second round the person marked as the first preference is the one whom the voter wishes to see come first, and it is important that that vote has full value.

Can the Minister help me? I have had a quick look through the Bill and I cannot find any provision, although it is probably carried over from existing legislation, where candidates have to pay deposits and, if they get less than a percentage of the vote, they will lose that deposit. Is that provision still there? If that is the case, I am afraid my noble and learned friend, Lord Falconer, might have to rethink because, if someone is going to lose their deposit, why should the votes be transferred? The threshold for losing the deposit was set at that level for a particular reason. I do not remember when it was set and what the reason was, but presumably it was that the candidate had failed to convince enough electors.

Where you take someone’s deposit away because they get less than 5 per cent, you are in effect “punishing” the candidate for standing because he could not get enough support. You would be wrong to punish the people who vote for him.

The noble and learned Lord virtually took the words out of my mouth. There is a difference in that, if there is a penalty on the candidate, it does not follow that the penalty should then be on the voter who has in all good faith expressed a second preference. The noble Lord, Lord Lipsey, made the point that it could be a way to penalise smaller parties, or indeed, as he put it, local campaigns. Let us remember that at recent general elections in this country and at a Scottish election in 2003 a candidate opposing hospital closures won. It might not necessarily have been obvious at the outset that these people were going to get far more than 5 per cent, but the fact that they are perhaps not mainstream in no way means that they should be devalued. It may well put people off from voting for candidates who appear to be coming from a local campaign, or let us say a non-mainstream party, if it was thought in some way that the second preference was not going to count. The object, as the noble Lord, Lord Lipsey, said, is to broaden choice, and I fear that the amendment in the name of the noble Lord, Lord Beecham, would not contribute to that broader choice. I therefore urge him to withdraw his amendment.

Amendment 52A withdrawn.

Amendment 52AA not moved.

Amendments 52B to 53 not moved.

Amendment 53A

Moved by

53A: Clause 9, page 7, line 16, leave out “publicly”

My Lords, this takes us to a wholly new and equally riveting topic: namely, the process of making the results public in the course of an election count.

I refer your Lordships—those who are still awake—to the following:

“If no candidate is elected (as mentioned in rule 45A(2)) at the first stage of counting, the returning officer shall, immediately after that stage, record and make publicly available the following information … the number of first-preference votes obtained by each candidate … which candidate was eliminated; the number of rejected ballot papers”,

so we will have a very different series of announcements during the course of an election. Obviously what happens now is that the returning officer says what votes everyone has in the first past the post system. We know who has won and who has lost.

On the basis of new Section 45B(1), I envisage after the first round of counting, in which most prospective parliamentary candidates will not get 50 per cent of the votes, that there will be a public announcement in each constituency of where it has got to. I take that from the words:

“If no candidate is elected … the returning officer shall, immediately after that stage, record and make publicly available the following information … the number of first-preference votes … which candidate was eliminated”,

and so on. The public will therefore know how the vote is going in each constituency and where it has got to. My knowledge of how the system worked most recently was in the Labour Party leadership election when they went through the whole calculation and then announced what had happened at each stage, so there was transparency about what happened at each stage but it occurred only at the end of the process.

First, how do the Government envisage this system will work? In particular, do they envisage that the returning officer will make an announcement after each round of counting? Secondly, what is the purpose of doing it in this way? Thirdly, why not wait until the end of the count to make public how it went at each stage? I should make it clear that I do not for one moment suggest that the individual candidates and their representatives should not be told how each round has gone after each round so that they can legitimately question any aspect of what has happened in that round, but I would be keen to know what the reasons were. That may be perfectly justified, but my goodness me it will make it an extremely complicated and long drawn-out evening and next morning if you insist—I am not saying that this is the wrong thing, I just want to hear the reasons—that at each stage there be a public announcement of where it has got to. This amendment seeks to probe the Government’s picture of how this will work, their thinking behind it and how much it will elongate the process.

Do I understand the noble and learned Lord to be actually suggesting that instead of this being made publicly available, it should be given to the representatives of the candidates so that it can be done by leak?

A lot of information is given to candidates and their representatives at the moment that is not leaked, entirely legitimately, and not made public. I would like to hear the Government’s position on this.

My Lords, as the noble and learned Lord has indicated, these amendments provide that if no candidate is elected at the first stage of counting—that is, if no candidate secures more than 50 per cent of first-preference votes—the returning officer would not make publicly available certain specified information about the state of play at that stage, including the number of first preference votes obtained by each candidate and which candidate was eliminated, but would make the information available to candidates and their representatives only. I have a lot of sympathy with the intervention by the noble Lord, Lord King. It would soon leak out, and I think it is far better that it is done publicly.

The clause is not prescriptive, so it is up to the returning officer in each case how he or she will make that information public. The purpose is so that there is transparency. There is no requirement for an announcement to be made, although the amendment in the name of the noble Lord, Lord Snape, that was recently not moved would have required a public announcement to have been made, and the specified information, which would include the details of the number of votes obtained by each candidate and the candidate who had been eliminated, could well be displayed, for example at the end of each counting stage, in written form or could be relayed on television screens at a count venue.

I was not present at any count on the morning of the last Scottish election because I was in radio studios with the noble Lord, Lord Foulkes, but I understand that at least at one count that my wife attended in Orkney the votes—based on a slightly different system—were being shown on a screen as they were being counted, so it is possible for that information to be made available. I can make it very clear that this is to ensure that the candidate, the media, accredited observers and other persons present at the count are aware of the state of play at the end of the counting stage and that the count is conducted in an open and transparent manner. I hope with that reassurance that it is intended to promote transparency, that it is not prescriptive, that it is a matter for the returning officer as to how that information is made public and that there are ways of doing it in written form as well as by making an announcement, that the noble and learned Lord will not press his amendment.

I found that a helpful and clear description which, from the sound of it, is a sensible way of doing this. However, I shall read in Hansard what he has said before making a final decision.

Amendment 53A withdrawn.

Amendments 53B and 53C not moved.

Amendment 53D

Moved by

53D: Clause 9, page 7, leave out lines 33 to 42

Clause 9(4) reads:

“The Minister may by order make any amendments to primary or secondary legislation (whenever passed or made) that are consequential on amendments made by this section or Schedule 10”.

It gives the Government a power to amend any section of primary legislation or secondary legislation in order to give effect to these provisions. Normally, we would expect to see the provisions that are being amended so that Parliament has an opportunity to consider them. Why are we not seeing the respective provisions that are being amended, and does this include the power to amend Acts of Parliament made after the passage of this Act? I beg to move.

My Lords, I can reassure the noble and learned Lord and the Committee that the breadth of the power is limited to amendments that are consequential to the changes being made by Clause 9 and Schedule 10. It is envisaged that in order to introduce the alternative vote system, should that be the wish of the referendum, amendments will be required to provisions in existing secondary legislation which concern the conduct of United Kingdom parliamentary elections. For example, changes will need to be made to certain forms that are prescribed for use at a UK parliamentary election including the poll card issued to electors prior to polling day to provide them with information on how to exercise their vote at the election, and the postal voting statement which postal voters must complete and return with their postal vote, and which again includes information about casting their votes. These forms are set out in secondary legislation. While we believe that all the necessary primary legislative provisions are in the Bill, it seems sensible not to have our hands tied. This power therefore covers any possible consequential changes to primary legislation that may be deemed necessary to implement the alternative vote.

I can offer a reassurance to your Lordships’ House that, as Clause 9 is currently drafted, before making an order under subsection (4), the Minister would be required to consult the Electoral Commission, which would give an independent view on any change. Such an order would be subject to the affirmative resolution procedure and would therefore have to be debated and approved in each House. I can confirm that it could allow amendments to be made to Acts passed before and after the Bill, but as I have indicated, this is for technical issues and not to change any matters of policy. In our memorandum concerning the delegated powers in the Bill for the Delegated Powers and Regulatory Reform Committee, we covered the order-making power in Clause 9.

If, by any chance, the Government were to decide before May that the system they have selected should be tweaked in some way, that would require a change to primary legislation. Does not subsection (4) actually preclude such a change being possible in the event that it needed to be made? Should not subsection (4) be a little looser to allow for the possibility that the Government may want to tweak the system in some way?

I do not think that that would be an appropriate use of the power. It is important that when Parliament determines what the system should be, that is the system which is put to the people in the referendum and should not be tweaked. As I have indicated, this makes provision for amendments to primary or secondary legislation to be made that are consequential and necessitated by this clause or by Schedule 10. As I have indicated, they are related to things like the poll card or the information that goes with postal votes.

Just before the noble Lord, Lord Campbell-Savours, intervened, I was going to end by saying that we have not been made aware that the Delegated Powers and Regulatory Reform Committee has made any critical or adverse comments in respect of these provisions. We believe that they are necessary and appropriate. In the event of a yes vote in the referendum, they will facilitate the implementation of the alternative vote.

I quite understand the noble and learned Lord’s position in relation to secondary legislation. Clause 9(7) states:

“An order under subsection (4) may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament”.

So we will get an opportunity to debate it.

Does the noble and learned Lord have in mind some provisions of primary legislation? He rather glossed over primary legislation. If changes in primary legislation are envisaged, why are we not being told what they are so that we can address them head on?

As I indicated—perhaps I did not make it clear enough—we believe that the necessary primary legislative provisions are in the Bill and therefore we do not have anything in mind. I have indicated some of the provisions which are in secondary legislation, but we believe that the primary legislative provisions are already in the Bill. However, it seemed sensible to ensure that we did not have our hands tied if something was to arise.

That is an interesting answer. Does the noble and learned Lord think it would be sensible not to include this power in relation to primary legislation? It is dangerous to include in a Bill a power to amend primary legislation when you have no primary legislation in mind but think it might be useful later on—particularly in relation to future legislation where you think you might have made a mistake and you then want to use the power to amend it. It appears to circumvent the important scrutiny that this House and the other place give to primary legislation. Will the noble and learned Lord think again about primary legislation? I am happy with secondary legislation.

Lord Wallace of Tankerness: I hear what the noble and learned Lord says. As I have indicated, the measure would relate to consequential amendments, but I am prepared to give it further consideration as regards primary legislation. As I said, it is there so that we do not find ourselves in a position where it is discovered that primary legislation could somehow prevent effective implementation of the affirmative vote in a referendum. I shall certainly reflect on what the noble and learned Lord has said with regard to primary legislation and I hope that he will withdraw the amendment.

My Lords, on the basis of the generous assurance given by the noble and learned Lord, Lord Wallace of Tankerness, that he will consider what I have said in relation to primary legislation, of course I shall withdraw the amendment.

Amendment 53D withdrawn.

Amendment 54

Moved by

54: Clause 9, page 7, line 42, at end insert “, Scottish Parliament, National Assembly of Wales and Northern Ireland Assembly”

My Lords, I am pleased that we have managed to get to Amendment 54. I see that the noble Lord, Lord McNally, shares my pleasure. I should declare an interest because I am a Member still of the Scottish Parliament, elected by the bizarre election system of AMS, the additional member system.

I remind those who are not too familiar with the Scottish electoral system that 73 Members are elected by first past the post—that is 71 for all the mainland constituencies and Orkney and Shetland have the special advantage of having a constituency each. That should please the Minister and the noble Lord, Lord Lamont. So 73 are elected by first past the post based on the votes that individual candidates got in each of the constituencies, and then 56 Members are elected—seven Members for each of eight regions—on a top-up basis based on the vote obtained by the party in that region. I would find it very interesting if someone could explain to me—I ask the Minister because he was the acting First Minister as well as the Deputy First Minister—how I managed to get elected because I could then explain it to the electorate. I am not sure how the votes came to be transferred to me and, ultimately, I was the last person elected on the Lothian list.

I do not think the electorate understood. It was a fascinating campaign. When I used to stand in south Ayrshire, in Carrick, Cumnock and Doon Valley, as a Member of Parliament, I spent right up to—and certainly not beyond—the limit of the election allocation. In spite of the fact that my majority in 1997 was over 21,000, I still campaigned very hard, went around every part of the constituency, and fought a huge campaign putting my name before the electorate in Carrick, Cumnock and Doon Valley. When I got elected to the list in Lothians, I spent nothing on the election campaign. We did not run a huge campaign for me, though we did for the Labour Party and for the constituency members. It is a bizarre system, which even the noble Lord, Lord Steel of Aikwood, who was one of the main architects of the system—it is a pity that he is not here tonight—regrets having introduced and would like to see revisited. I do not know whether the noble and learned Lord, Lord Wallace of Tankerness, has come round to that point of view yet—I hear the muttering of the Leader of the House—but it indicates how unwise it is to go into systems without fully realising their implications, because there are huge, unintended consequences.

I have tabled the amendment because the Scottish Parliament was deeply concerned and offended by the fact that it was not consulted about the date on which the UK Government intended to hold the referendum on the alternative vote. The Scottish Government felt the same way—I am more concerned about the Parliament than the Government, but their response was the same. Here we are dealing with Schedule 10. In it it is suggested that the Electoral Commission, and no one else, should be consulted. Until recently—a few months ago—there was no one on the Electoral Commission with any experience of either elections or referenda. That situation has been improved with the addition of four members, including my noble friend Lord Kennedy, George Reid and the noble Baroness, Lady Browning, who is sitting opposite. The commission’s knowledge of elections and referendums has been strengthened; I welcome her and my noble friend’s membership of it. However, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly should be consulted as well. They are packed full of people with experience of elections and referenda and would be able to offer wisdom in addition to that now offered by the Electoral Commission.

My Lords, it gives me great pleasure to speak in support of my noble friend’s amendment. To one such as me who has been in this House for four or five months, it certainly gives rise to a new experience. It may sound pretentious or boastful, but my instinct tells me that some kind of watershed has been breached tonight, and not for the better. Why are we debating this amendment at this time of night? I do not think that it is the best time to be discussing legislation, and never have done. In the other place, it was one of these things that Oppositions would do to strut their stuff and Governments would do the same. After a decent couple of nights, both sides would behave themselves. Today is unique because we are debating this issue at almost one o’clock in the morning. We have to look at why and how we arrived here. A big chunk of time was taken out today by three Statements. I am not complaining about that, because they were very important, and it was right that the House should have the benefit of listening to Ministers.

As I understand it, there was co-operation, through the usual channels—if I am wrong on this, I am sure I will get pounced upon. Because of the three Statements, and in co-operation with the Government, we waived the right to a fourth Statement. Nobody has pounced upon me yet, so I think that there must be something in it. That shows, in my book, that the usual channels on the Opposition’s side was responsible for saying that as there already going to be a chunk of time taken out of today’s deliberations, therefore it was a reasonable and fair—a much used, or abused word in here at the moment—to waive the right to the fourth Statement. I think it was right that the Statements were heard; I respected the Government for that. They are under pressure to get the Bill through, yet they have still lived up to their responsibilities as a Government and made these three Statements.

I do not know what has happened since then. I am not party, first hand, to what has been said and done tonight, but I know enough about the place, because traditionalists such as my noble friends Lord Campbell-Savours, Lord Lipsey and Lord Foulkes have drummed into me the importance of the conventions here and of the conventions being honoured and recognised.

The noble Lord, Lord McNally, has commented that I have taken to the place like a duck to water, which means that I have supported the conventions up till now; I agreed with them and saw the need for them because this place is special. I know that he was gently making fun of me and that is fine, that is part of the routine. I hope he was—he did not agree when I said that. I assume that it was said in a jocular way and I certainly accept that. If you are going to poke fun, you have to be able to take some fun back.

However, my understanding, again from the usual channels—my noble friend Lord Bassam of Brighton mentioned this at the Dispatch Box, so I am not breaking any confidences—was that there was an understanding/agreement, that going past 10 o’clock would be fine, but that we would finish at 10.40 pm, which I understand is something called taxi time. I do not know what that means; I take it that that is for the staff. When my noble friend Lord Bassam mentioned that, the Leader of the House just completely ignored him, completely bulldozed him and said we would finish the clause. I do not think that that is right. If there is timetabling to be done—I do not know all the rules in this place, but I will learn over time—would it not have been possible for the Government to have given notice that they wanted extra time so that folk could prepare?

I thank the noble Lord for giving way, but after listening to him for the last five minutes or so, could I ask him whether his arguments are for or against the amendment of his noble friend?

I thank the noble Lord for that. I am trying to explain the context of why we have reached here and why I intend to take time, without repetition, being boring or whatever.

I have left the Liberals alone up till now, but the noble Lord, Lord Rennard, invites me in. How can any Liberal, with their high sense of duty, their superiority complex over the years, looking down at mere politicians, not only of the Labour Party, but of the Tory Party—they are a cut above, intellectually and spiritually pure—endorse, support and even vigorously lead the behaviour tonight? They ought to be ashamed of themselves, because not only have they endorsed it, they have given enthusiastic leadership to it and it is a breach of the conventions of the House.

My noble friend rightly mentioned the Scottish Parliament. In passing, and he did not get pulled up for it, he mentioned how Orkney and Shetland had two seats in the Scottish Parliament. I remember at the time thinking, “That’s okay for them isn’t it?” How anybody can advocate and support that position and maintain a credible reputation is beyond me. Certainly, on this side of the House, it is okay for that part of the world, part of my own country, to get preferential treatment on the basis of two seats in the Scottish Parliament and influence the governance of the Scottish Parliament.

The Scottish Parliament is there and it is coming to be respected more by the Scottish people. To be treated in a cack-handed, offhand way by the Westminster Government only gives succour to the nationalists and separatists and those who think that independence will carry a crescent of prosperity for Scotland, the Nordic countries and the Republic of Ireland.

It was said that the Electoral Commission should be consulted/notified and not the Scottish Parliament. The Scottish Parliament was not even consulted about the date of the referendum. That is a complete insult and an offhand way of doing things. It was under the leadership of the Deputy Prime Minister—a Liberal. There is a situation where a Liberal has played a leading role in insulting the Scottish Parliament.

It is not the best kept secret that my personal position prior to Scottish Labour Party decisions and the position of the relevant constituency Labour Party was of complete, total and utter opposition to the foundation of a Scottish Parliament because we saw it as a slippery road to separation. We are a unionist constituency party and all our representatives are unionists and always have been. Behaviour such as has been indulged in by the Liberal Deputy Prime Minister of this Tory-led Government has shown that they will damage the union.

I can sense from the Scottish non-political public that there is resentment about that. I will be quite honest about this. Scotland is not one homogeneous nation in every single sense of the word. There are different attitudes in each area. I think I am an average west of Scotland person. I would certainly say that I am not Glaswegian. We are a bit contrary in a sense because as an area we might be critical of the Scottish Parliament. We may be critical of some decisions and the way it sometimes behaves. We may even say, “I wish it wasn’t there”. Sometimes the west of Scotland takes that attitude. But any insult slung at the Scottish Parliament from somebody from outside the area, especially from outside Scotland and—without being racist in any way because I am British and Scottish—especially from England, gets the contrary side of the west of Scotland people. They then start defending the Scottish Parliament and take umbrage and exception to the behaviour of any critical comments or attacks on it coming from outside Scotland, especially from England. They give succour to the Scottish Nationalist Party and separatists.

For the benefit of the noble Lord, Lord Rennard, if he is listening, I fully support my noble friend’s amendment. It is right that the Scottish Parliament should be recognised. It has been elected and to me that is above all else. It should be given a place in Scottish public life. Quite clearly, it has not been by this Government and not by the Liberal Deputy Prime Minister. Therefore, I have no hesitation in supporting the amendment.

I shall very briefly intervene and just make a comment before this debate closes this morning. This amendment would provide for making an order to amend the primary or secondary legislation consequential on amendments made by this clause. Any such award would have to be the subject of consultation with the Electoral Commission and also with the Northern Ireland Assembly, the Welsh Assembly and the Scottish Parliament. The question is, “Why consultation?”. I shall address my remarks to the two new noble Lords elevated to this House today, the noble Lords, Lord Lingfield and Lord Dobbs. This is a bit of a baptism of fire for them, really; they must be wondering what they have come into. It is a very good question, and the answer is very simple. We are dealing with a Bill that has been the subject of no consultation whatever. There was no inquiry, no prior scrutiny and no real notice of what was coming, and we object. We are now scrutinising this legislation line by line. Much of this could have been avoided if we had been through a proper process. What those two noble Lords are now seeing is just an abuse of Parliament by way of introducing a Bill in this way. I would advise them—and one hopes that they will stay here for many years to come—that if ever they are in a position to influence events in future, to advise their colleagues not to introduce legislation in this way in the future. Because this will go on for weeks, and only because the process that led to this legislation was wrong. That is all that I have to say.

My Lords, the effect of the amendment is that before making an order under Clause 9(4), which allows the Government to,

“make any amendments to primary or secondary legislation … that are consequential on amendments made by this section or Schedule 10”.

At the moment, the Minister has to consult the Electoral Commission. Inevitably, amendments made under Clause 9(4) could affect the position in relation to the Welsh Assembly or the Scottish Parliament. As to how they might affect primary legislation—I see the noble and learned Lord, Lord Wallace of Tankerness, looking troubled by that. He has just said very candidly that he has no idea what primary legislation might be amended by using Clause 9(4). His inability to understand that it might affect the Scottish Parliament or the Welsh Assembly is surprising, I have to say.

Before you produce an order that amends primary legislation, which currently cannot be identified—I am not criticising the noble and learned Lord for that—and which may not even be passed, because it may include future legislation, what is wrong with consulting the Scottish Parliament or the Welsh Assembly? We have had read to us the views of the Scottish Parliament and the Welsh Assembly on a number of occasions about the fact that they were not consulted about the date of the referendum, which is taking place on the same day as the Scottish Parliament or Welsh Assembly elections. They were plainly upset by that. What is the purpose of not consulting? What is the anxiety about consulting? We are talking about a national electoral system here, and a national vote. Surely the Scottish Parliament might have views that could be taken into account. I ask the noble and learned Lord to take that position into account. Points have been made about what has happened this evening. It is four minutes past one now. My understanding of how the House operates is that the Government Whip and Leader consult and then decide what to do. The Leader of the House today appeared not even to consult his own Chief Whip about sitting until four minutes past one. The reason I say that is because I am told by the Opposition Chief Whip that the noble Baroness was proposing that we went on for one more amendment. It might well have been sensible to go on to four minutes past one, but we have done it without, for example, giving the staff warning in advance and without there being proper consultation. All I say to the Leader of the House, who is much liked in the House, is please consult before going on till five past one.

My Lords, the noble Lord, Lord Foulkes, has invited me to give a description of the working of the Scottish Parliament voting system. I will resist that. I do not think that it is necessary. He came to be elected, I suspect, because more Labour members lost their first past the post seats than he had anticipated in the Lothian region. If he has any queries about the system, it is a system which of course he agreed in the constitutional convention. He was a member of the Government that brought it forward and passed it as indeed that Government proposed in primary legislation separate seats for Orkney and Shetland, which I certainly supported, but it was of course a measure which was brought forward in a Bill from a Labour Government. What we are dealing with—

Yes, of course it was agreed at the time, and there were many pressures for it, not least the inducement to the noble and learned Lord—I do not mean illegal or anything improper—as I understand it, made by the leader of the Labour Party, the late Donald Dewar, that Orkney and Shetland would get separate seats; of course that was agreed at the time. But does the Minister still think it fair, in an atmosphere where everything has been quoted as fair, that the area that he used to represent gets special treatment compared to mine?

The previous Labour Government did a wonderful job when they brought forward the proposals for the Scotland Bill, which I was happy to support, and which indeed were endorsed overwhelmingly by the Scottish people in a referendum. But the effect of the amendments brought forward by the noble Lord, Lord Foulkes, would be that, before any order was made under Clause 9(4), the Minister would be required to consult the Scottish Parliament, the National Assembly for Wales, and the Northern Ireland Assembly, in addition, of course, to the Electoral Commission. As I indicated in my response to the previous amendment, the kind of changes that are anticipated under this order-making power are for matters such as the information that goes on the polling card; information that would go with a postal voting statement; matters which currently reflect the first past the post system, but obviously would need to be changed with an alternative vote, should that be the will of the electorate in the referendum.

In all fairness, I am not sure that that is high on the agenda of the Scottish Parliament, the Welsh National Assembly, or the Northern Ireland Assembly. Voting systems for UK parliamentary elections is a reserved matter. It was a matter of common ground in the Act that was put forward by the previous Labour Government, which I was happy to support and was supported by the Scottish people; the Government of Wales Act was supported by the Welsh people in a referendum; likewise for Northern Ireland, where it was agreed that UK parliamentary elections are reserved.

It is not necessary, therefore, for the UK Government to be subject to a statutory requirement to consult the devolved Parliament and Assemblies before making an order, which will be of a technical nature. We are not aware of any similar requirement to consult the devolved Administrations in respect of existing aspects of electoral law relating to UK parliamentary elections.

I was just going on to say that I accept that when the United Kingdom Government develop proposals in relation to UK parliamentary elections, it is important that issues affecting Scotland, Wales and Northern Ireland are considered as part of the process. The practice of the Cabinet Office, which leads on electoral policy issues, is to work closely with colleagues in the territorial departments—the Scotland Office, the Wales Office, the Northern Ireland Office—on policy proposals. They would be able to highlight any concerns or issues affecting the particular part of the United Kingdom. I have no doubt that, if the Scottish Government or the Scottish Parliament had particularly strong views on the wording of a polling card that would be taken into account but I do not believe that it is necessary given the fact that this is a wholly reserved matter. It has been accepted on all sides that it is a wholly reserved matter that requires a statutory requirement. The Electoral Commission is in a different position, because the Electoral Commission has a host of responsibilities with regard to the material that is published and goes out in association with an election. As I indicated, I am sure that if representations were received from the Welsh National Assembly, they would be considered on their merits, but on a matter which is entirely the responsibility of the United Kingdom Parliament and Government, a statutory requirement to consult is not necessary. I therefore ask the noble Lord to withdraw his amendment.