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Lords Chamber

Volume 726: debated on Tuesday 15 March 2011

House of Lords

Tuesday, 15 March 2011.

Prayers—read by the Lord Bishop of Newcastle.

Northern Ireland: Bill of Rights


Asked by

To ask Her Majesty’s Government what consideration they are giving to the motion passed by the British-Irish Parliamentary Assembly on 22 November 2010 which noted the delay in the introduction of a Bill of Rights for Northern Ireland, as promised in the Belfast agreement, and called upon Her Majesty’s Government to fulfil their obligation in that regard.

My Lords, the Government remain committed to maintaining human rights protection in Northern Ireland and fulfilling our obligations under the Belfast agreement. Indeed, my right honourable friend the Minister of State recently met human rights organisations in Northern Ireland and stressed the difficulty of making progress without political consensus within Northern Ireland and the Northern Ireland Assembly. We will continue to consider how best to address this issue in the coming months.

My Lords, that is not a very satisfactory Answer because it gives a veto to the Stormont parties and it is not their prerogative to exercise that veto. Is what my noble friend said the agreed policy of the coalition? If it is, which Liberal Democrat Ministers participated and concurred in that agreement?

I make it quite clear; I am the Whip and there are two Ministers in the House of Commons. Noble Lords will remember that we had the general election, following which the number of Members of Parliament in each party was rather different. Under the coalition agreement, the number of Liberal Democrat Members who became Ministers was rather smaller than the number of Conservative Members who became Ministers. My noble friend’s right honourable friend and mine, Nick Clegg, the Deputy Prime Minister, paid a three-day visit to Northern Ireland in October, and I also had a three-day visit. Even though I am not a Minister, I endeavour to influence events and I hope to have a degree of success in that. Alongside my noble friend as the Liberal Democrat Back-Bench co-chair for the policy committee on Northern Ireland, Mr Stephen Lloyd, MP for Eastbourne, has recently been appointed to serve as the House of Commons co-chair.

My Lords, I remind the Minister, with respect, that he speaks on behalf of the Government as a whole. The Government have pledged to bring in a British Bill of Rights. I wonder what that means for Northern Ireland and whether the Government are going to pursue a Northern Ireland Bill of Rights and a separate Bill of Rights for the United Kingdom. I should be grateful for the views of the noble Lord the Minister.

My Lords, I shall endeavour to speak for the Government. I was just giving the facts as to who is the Minister and who is the Whip. I hold the latter position, and I think noble Lords will find that that situation existed when we had a different Government. The noble Baroness may recall that the Belfast agreement came into being on 10 April 1998. It was agreed that there would be an Assembly with full legislative and executive authority for the six Northern Ireland government departments. Furthermore, it was agreed that the European Convention on Human Rights would be embraced in any Bill of Rights for Northern Ireland that supplemented it. Of course, it is 13 years since the Belfast agreement and things do not stay still. We got a Human Rights Act in December 1998. The devolved Assembly has these powers and from time to time legislative consent motions are required. On 16 February—

If you want the answer you can have it—the Prime Minister announced that a group of people would be put together for a human rights Act for Britain. Therefore, the Belfast agreement has to embrace those other three factors.

My Lords, can the Minister confirm that the Belfast agreement brought benefits to the peoples of both states in the island of Ireland? Can he recall that there were obligations on the Dublin Government in that agreement to create a human rights commission, to ratify the Council of Europe’s convention on national minorities, and to legislate for employment equality and for respect of the different traditions in the island? Can he confirm whether any of those four requirements have been honoured yet by the Dublin Government? For those that have not been honoured, will he make representations to the new Government elected in the south of Ireland a few weeks ago?

My Lords, as I indicated earlier, I will do my best to speak for this Government. It is someone else’s job to speak for the Government of Ireland. However, in another coalition agreement, between Fine Gael and Labour in the south, there is one line that the Belfast agreement and the St Andrews agreement “shall be honoured”. If that is in their coalition agreement, it applies to them as it does here, and I will see to it that I write accordingly.

My Lords, I want to clarify a couple of things. While shadow Minister in opposition, my right honourable friend the Secretary of State, I and others in the team undertook that once the United Kingdom Government set up their own human rights Bill, Northern Ireland would have its share of it. That is where I still stand, and I suspect that my right honourable friend the Secretary of State is in a similar position.

I am not absolutely clear about the question, but the Government are possessed of the fact of honouring the Belfast agreement. Within that there has to be a human rights element for Northern Ireland. What is not absolutely written in stone is that that has to be very separate.

My Lords, will the Minister comment on the reality that the Belfast agreement does not impose an obligation on the Government to legislate on the human rights question; rather, it imposes an obligation on them to receive the report of the Northern Ireland Human Rights Commission? Rather more profoundly, that report is supposed to be based on the principle of “parity of esteem” for the “two traditions”. That is explicitly said in the Belfast agreement. The Northern Ireland Assembly has in effect rejected the idea that it is so based. Is it not at this stage for those who believe in human rights legislation to carry on the argument in Northern Ireland with the Northern Ireland Assembly to see whether minds can be changed?

It certainly is. The Northern Ireland Assembly voted by 46 votes to 42 that it did not want separate human rights legislation. There is an election, and things might well change following that election. If a united front in the Northern Ireland Assembly said that that is what it wanted, obviously the British Government would take due notice.

House of Lords: Life Peerages


Asked by

To ask Her Majesty’s Government whether they intend that the life Peers they have appointed should be Peers for life.

My Lords, that is a very, very welcome Answer. I am almost at a loss for words. I am so much at a loss that I want to have it rephrased. Is the noble Lord actually saying that everyone currently a life Peer will remain a Peer for life? If he is saying that, I suggest to him that he is getting himself out of an awful lot of difficulty, but if he is not saying that—he is looking very quizzical now, so perhaps I was not getting a straight answer to a straight question. Let me simply put it to him that it would be a bit cynical if the same Government who have created 119 new life Peers since the general election, all of whom are making a terrific contribution to the work of this House, are at the same time, according to his interview with the Financial Times at any rate, planning to remove us and replace us with senators by 2015. I suggest to him that given that, so far, there has been no agreement whatever on the powers and functions of any reformed second Chamber, the simple thing for him to do—I imagine it would be a relief to the Government—would be to pick up the splendid House of Lords Reform Bill in the name of the noble Lord, Lord Steel of Aikwood, and take it forward as government policy.

My Lords, I thought I had been entirely straight with the noble Lord. A peerage is for life. That honour should remain, but it should not necessarily guarantee a seat in the House of Lords. The noble Lord knows that well because he knows that the Government are committed to House of Lords reform, as all major parties agree that reform is needed and this coalition Government provide the opportunity to determine final proposals that can be put to Parliament after there has been a Joint Committee of both Houses.

My Lords, my Letters Patent give me the right to sit here for life. I assume my noble friend’s Letters Patent do the same. Are we to attach more importance to the Letters Patent from the Queen or to the views of the temporary Deputy Prime Minister?

My Lords, in the passage of the House of Lords Act 1999 we went through this quite a lot. In the end, the view was that statute law could vary the terms of the Writ of Summons. Therefore, if it was the will of Parliament that life Peers should not be guaranteed a place in the House of Lords, I do not think there would be any problem.

My Lords, if membership of the House is to reflect the crude statistic of the national vote at the most recent general election, when can we expect to have 21 UKIP Members of this House and 14 British National Party Members?

My Lords, we have no plans to introduce members of those parties at the moment. Of course, if there was an elected House, it would be up to the electorate to decide who should sit in this House.

My Lords, is there not something totally glorious and hypocritical about the noble Lord, Lord Grocott, saying please may his peerage be guaranteed but those promises to elected successors of mine, which could be in the fairly near future, should be taken away?

My Lords, it is good to see my noble friend speaking in this House, as he has done for many years, and long may that continue. Different people will take a different view of what the noble Lord, Lord Grocott, said but he has been entirely consistent since coming here in wishing to preserve the House more or less as it is. It is an important point of view, although not one with which the Government agree.

My Lords, the noble Lord, Lord Strathclyde, too, has been entirely consistent in being a passionate exponent of an elected House. But yesterday he told the House that he expected that dozens, indeed hundreds, of new coalition Peers would be appointed over the next few years. Can I take that as indicating that he is therefore not very optimistic about the prospect of substantive reform?

My Lords, neither is the case. While there is an appointed House, it is always open to the Prime Minister to appoint new Members to it on a cross-party basis and the noble Lord will have seen the coalition agreement on that. However, if Parliament passes a Bill for an elected House, elections would take place.

My Lords, will my noble friend acknowledge that since 1997, when a Government, of whom the noble Lord, Lord Grocott, was a distinguished Member, were elected with a clear commitment to reform your Lordships’ House to include elected Members and, by implication, to end the life peerage, all of us who have been appointed know that we are term Peers in practical terms? Will he further acknowledge that the big difference since May of last year is that instead of just talking about this for 13 years we have a Government who are committed to action?

My Lords, my noble friend is quite right. I do not believe that any new Member of this House, before accepting this great honour and, indeed, a job, has not considered what might happen if a reform Bill is finally published.

Shipping: Piracy


Asked by

To ask Her Majesty’s Government what action they are taking to mitigate and eventually eradicate the hijacking of United Kingdom shipping by Somali pirates.

My Lords, Her Majesty’s Government contribute warships to multinational counterpiracy operations and command the European Union operation. We work with industry to implement best management practice by ships to minimise the risk of a successful hijack, but the long-term solution lies on land with the rule of law and increased stability. The United Kingdom is leading international action in the Contact Group on Piracy off the Coast of Somalia to deliver a comprehensive response to Somali piracy.

Is my noble friend aware that the situation gets ever more serious? Two major tankers have been hijacked in recent days, nearly 800 hostages are being held, and now no less than 10 mother ships are extending the amount of ocean in which the hijackers can operate. Since we as Her Majesty’s Government are in the lead role, is it not time that in conjunction with our partners we use some of the UAV planes to pinpoint where these mother ships are and, if necessary, either sink them by an armed UAV or find some other means of sinking them? After all, the Tamil Tigers’ navy was put out of action only by the Sri Lankan navy sinking the mother ships.

My noble friend is absolutely correct. The situation is getting more serious every week. More and more ships are being attacked by the hijackers and the piracy operation is growing, so he is completely right to recognise the seriousness, as do Her Majesty’s Government. We are, as he says, in the lead on the Contact Group on Piracy off the Coast of Somalia. We are seeking to develop more substantial facilities to meet and track the pirates. The question of the UAVs is difficult. We have none, but of course our American allies do. A great many of these are currently deployed elsewhere, but my noble friend can rest assured that we intend to develop a more robust response in relation to these and other kinds of maritime air patrol because it is certainly needed.

My Lords, the Minister will be aware of reports of a deal between the pirates and al-Shabaab, an affiliate of al-Qaeda in the Arabian Peninsula, whereby the terrorists cream off some of the money that goes to the pirates. Do the Government accept that this is likely to be true? If so, will it not have an affect on us in the possible financing of terrorism through the diaspora in the UK and in possibly making insurance companies in the UK liable for that financing?

I have certainly heard of these reports and there are a great deal of rumours surrounding the whole question of the relationship between pirates, pirate finance and terrorism in the region, but we have no firm evidence of this particular pattern of transaction. It is, however, something that we are investigating and watching very carefully indeed.

My Lords, the Minister said quite rightly that the causes of piracy as opposed to the symptoms must be dealt with on land and cannot be dealt with at sea. Could he therefore tell us what progress is being made in engaging with, and building capacity within, what passes for the authorities in Puntland?

In Puntland, Somaliland and Somalia itself we are making efforts to reinforce the facilities for both the prosecution and the imprisonment of pirates, so progress is being made. Frankly, Puntland is a rather more difficult region than Somaliland, which is very co-operative. In Somalia itself the transitional regional Government are working to build prisons and improve facilities. There is, of course, the wider problem in Kenya with which the noble Lord will be familiar. Some progress is being made, but it is not very easy.

Is my noble friend aware that since January the Indian navy operating some 600 miles or more off its western shore has sunk three pirate mother ships and captured over 100 pirates, who are now being interviewed about their connections with terrorism in Mumbai? The Indian Government are also bringing forward tough legal measures to help them tackle offshore piracy. What is our Government’s assessment of the proactive operational policies of India compared with the effectiveness of the EU operation, Atalanta, in both its maritime and its legal capacity?

Our assessment is positive, both of the Indian naval operations and the naval operations of other countries, including China. This is a co-ordinated effort, and maybe the co-ordination can grow tighter still. We think this should all carry forward in a closely integrated way. As to the legal aspects of the situation, there are the rules of engagement and the operational duties under which a sort of constabulary context is conducted towards pirates. This might need to become more robust in our different countries, but we have to stick by the law of the sea and we have to proceed carefully for fear of involving ourselves in far more complexities in this area, rather than reducing it and maybe being more effective against the pirates.

My Lords, I congratulate the noble Lord, Lord Naseby, on drawing the House’s attention to a very pressing problem that, in my view, has not had enough attention up until now. Is it not absurd that we in this country should be supporting no fewer than three task forces, potentially leaving our sailors and marines at risk of their lives there, and doing nothing at all to interrupt the constant flow of money into the hands of pirates? We have in this country an elaborate structure of criminal assets legislation and anti-money laundering legislation. Will the Minister have a word with his colleagues in the Department of Justice and the Home Office to see whether we cannot use these existing mechanisms to interrupt the flow of money that is making piracy a growing and increasingly profitable industry?

I do not quite accept the noble Lord’s point that we are doing nothing at all. He is quite right that this is a growing concern. We had an excellent debate on it just before Christmas and he is right to raise it again now. These are all areas where progress can be made. There is a contact group and a highly effective operation throughout Whitehall involving all departments in tightening the situation. We have to tackle all these matters and are doing so in many areas very vigorously. To say we are doing nothing at all is going too far, but if the noble Lord feels we should go further, clearly we should because the piracy issue is getting worse and not better.

My Lords, I, too, congratulate the noble Lord, Lord Naseby, on raising this issue. Does not the Minister think that now is the time to reinvigorate action in this whole area? It is becoming a really dangerous issue. I believe that something will happen in the near future that will make us all pay attention. For example, the loss of two LNG ships coming to the UK would affect energy supplies. There could be a huge catastrophe, and it really is time to reinvigorate our efforts. Should we not look at all the aspects of this problem that have been mentioned and push this very hard?

The noble Lord is right that the time has come, and Her Majesty's Government have recognised precisely the point that he makes. However, this has become a global issue; it could affect Chinese, Indian and Asian interests just as much as European and American interests. This task must be tackled on a global level with great vigour before it gets very much worse.

Police: Expenditure Cuts


Asked by

To ask Her Majesty’s Government what impact the proposed cuts to the police service funding will have on operational effectiveness.

My Lords, I welcome back this familiar question in a slightly different form; no doubt we will see it again. The Government believe that police forces can make the necessary savings while protecting front-line services and operational effectiveness. Last year’s HMIC report identified £1.1 billion of savings that could be made while maintaining police availability. We have identified significant further savings, including through better procurement and sensible pay restraint.

I thank the Minister for his reply. Before the general election, the leader of his party—now the Deputy Prime Minister, Mr Nick Clegg—promised to recruit an extra 10,000 police officers. The reality, as a result of decisions that the Government have taken, is that we will have 10,000 fewer police officers. Is this not another example of the Deputy Prime Minister saying one thing to get elected and another when elected?

My Lords, we all have to pay for what we get. I was not aware until I saw a chart in the Guardian on 23 February that the previous Labour Government went into deficit on the Budget in 2002, ran an annual deficit on it of between £30 billion and £40 billion from 2003 to 2008 at the height of the credit boom, and therefore left us with no spare capacity when the boom collapsed. That is why we all have to take these difficult decisions.

I declare an interest as a member of the Metropolitan Police Authority. Does the Minister share my view that the police could provide better value for money by cutting perks such as chauffeur-driven limousines for senior police officers rather than by cutting front-line services?

I had better declare that I travelled several miles in the chief constable of West Yorkshire’s car last week from one police building to another. There are of course areas where the police can cut, and a number of rather imaginative schemes are already under way. I was taken on that day to the Yorkshire regional hub, which the four separate Yorkshire police services now share for a number of operations. That is the sort of thing which we need to take further.

My Lords, how many front-line police officers will lose their jobs in order to pay for the politicisation of the police force through elected police commissioners?

My Lords, we will come to the Police Reform and Social Responsibility Bill in good time. We have seen in the past couple of months the normal form of negotiation through the public media. I saw in early February a suggestion that Greater Manchester, for example, would lose nearly a quarter of its strength. We now hear Lancashire Constabulary, I am very happy to say, talking about possibly losing up to 160 policemen in front-line positions. We are beginning to discover that it will be not be as difficult as we feared. Her Majesty’s Inspectorate of Constabulary last week indicated that it expects much fewer police job losses than originally forecast. The Metropolitan Police, accounting for a quarter of all officers in England and Wales, has indicated that it will begin recruiting again shortly.

My Lords, is the Minister aware of the widespread concern about the impact of cuts to police funding on the child protection role of the police? Can he provide some reassurance on this point?

My Lords, one of the principles of this Government is to reduce the different pots under which funding is provided to the police and to allow the police to choose how they spend their money. Some areas of the country require much greater effort on child protection than others. We look to police forces, authorities and, in future, the commissioners who will keep them under check to choose their priorities in the light of local needs.

Does my noble friend accept that the Benches opposite may accept that the deficit needs to be reduced as a general argument, but that they will not agree to any measure in particular?

My Lords, we all face a structural problem that the media and many of the public want higher quality public services and lower taxes. The call from the Labour Party for cuts in VAT, rather than to talk about how we pay for what we need in maintaining public services, is a good example of that.

My Lords, would the Minister care to answer the specific question about money being spent on implementing a policy which to my knowledge his party never voted for—single police chief commissioners? I declare my interest as having served for 20 years as a member of a police authority. Responsible chief constables are saying that to achieve savings of the magnitude needed, even if we accepted that they should be made, requires lead-in time. Rather than have these phoney elections, which will have to be backed up by panels to represent the whole community in the police authority, as the Government have accepted, would it not be better to spend the money on that? I have not met a single senior police officer whose priorities would be different from mine.

My Lords, I am deeply surprised that the noble Baroness was not aware of the 2006 Liberal Democrat party paper on public service reform, which did indeed raise the question of directly elected police commissioners, so it is not entirely new to our party. I understand that the Labour Party is proposing instead that one should have directly elected chairs of police authorities. I cannot quite get my head around how different that is from what we are proposing.

Warm Home Discount Regulations 2011

Export Control (Amendment) (No. 2) Order 2011

Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011

Patents County Court (Financial Limits) Order 2011

Immigration and Nationality (Fees) Regulations 2011

Licensing Act 2003 (Royal Wedding Licensing Hours) Order 2011

Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011

Motions to Refer to Grand Committee

Moved by

Motions agreed.

Energy Bill [HL]

Third Reading

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Energy Bill, have consented to place their prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Clause 3 : Framework regulations

Amendment 1

Moved by

1: Clause 3, page 3, line 42, leave out “may” and insert “must”

My Lords, it is amazing that, although I thought this is a fascinating Bill, the Chamber seems to be emptying quite quickly. I will do my best to encourage everyone.

Before commencing these amendments, I would like to place on record my thanks to all noble Lords for their magnificent contributions. Although those on the opposition Benches will not like it, this has been done in the true spirit of coalition across all parties. I would particularly like to thank those on the opposition Benches for everything they have done in making this Bill fit for purpose. I have been incredibly well assisted by the noble Baroness, Lady Northover, who has worked tirelessly on our account and I thank her very much.

I also thank our officials for their tireless work. The Bill will have passed through this House voteless—at least I hope that it will—and that would not have happened without substantial briefing and explanation to noble Lords during the course of the Bill. I want to thank my officials and everyone for that. As such, these government amendments show that we have listened to noble Lords, particularly on the opposition Benches and my noble friend Lord Deben. I hope that the first group of government amendments are accepted by the House.

My Lords, during the passage of the Bill, I moved several amendments on, and we had long discussions about, the private rented sector. At Report, the Minister said that he agreed in great part with what I was saying and that he hoped to be able to bring forward amendments on the private rented sector going further than they had previously. They have gone a little bit further today. I hope that, as the Bill passes through another place, the Government will be able to take a slightly closer look at the private rented sector.

In the time that we have been discussing the Bill, the most recent English housing survey has been published. It shows that the number of properties in the private rented sector has increased by 1 million in the past 10 years. Such properties now account for 15.6 per cent of England’s housing stock and that number appears to be rising all the time. I remind the Minister, although it will not be his responsibility in the other place of course, that 20 per cent of private rented sector households live in fuel poverty. If we look at the bottom end—at bands F and G, which are the groups that I have spent a lot of time discussing during the passage of the Bill—that rises to 42 per cent. I have said at least twice during the passage of the Bill that, in many cases, we are footing the bill for the rent of these properties through housing benefit.

I thank the Minister for moving a little in my direction and I hope that his colleagues in another place will be able to take a further serious look on these issues.

My Lords, the amendments that I tabled called for a legally binding minimum standard of energy performance by the year 2016, but the Minister has not been able to concede that. I accept that the amendments that he has tabled are a small but helpful step in the right direction, but I want to place on record that I fear that the private rented sector will not do what it should do without a legally binding minimum standard being introduced by the Government for local authorities to implement. Without that, I fear that the Green Deal will not be as effective as it otherwise should be. But it is now for another place to discuss and I am grateful for the modest but important concessions that the Minister has made with these amendments.

My Lords, I echo the Minister's comments about how the Bill has been conducted. It has been a great example of your Lordships working together to bring forward suggestions. I praise the Government for their efforts to look at the suggestions and amendments and bring forward amendments of their own. I recall at Second Reading the Minister said,

“I will clarify that this is a framework Bill on which there is a lot of work to be done”.—[Official Report, 22/12/10; col. 1151.]

During our deliberations, particularly in Committee and at Report, we have undertaken a lot of that work and brought forward amendments.

I also echo the Minister’s thanks to his officials who have been very co-operative with us. We are grateful for that help and support. I also place on record my thanks to the many organisations that contacted us during the course of the Bill, such as Friends of the Earth, the Association for the Conservation of Energy, the World Wide Fund for Nature and many others. Their work and that of the energy companies have been endless. I have had more e-mails and briefing on this legislation than I have ever had in my entire parliamentary career. It has been very welcome and appreciated and we do not take that support and advice for granted.

I welcome the amendments before us today; indeed, the Minister has brought them forward based on our suggestions. As the noble Lord, Lord Best, summed them up, they are a very modest but welcome step forward. The Minister brings forward the issue of “materially” but also of “must” rather than “may”, on which we had some splendid discussions in Committee. He has taken on board the comments we made and the amendments go part of the way to enhancing the consumer protections in the Bill and to providing more information and more certainty for participants and consumers.

None the less, however much I welcome the amendments he has brought forward, I must share with the House my disappointment, which is similar to that raised by the noble Baroness, Lady Maddock, and the noble Lord, Lord Best. I looked again at the comments the Minister made on Report and understood why I was so encouraged and optimistic about what he was going to bring forward. He was entirely genuine when he said:

“Throughout all these debates, which have been extremely well enunciated, and have found great favour with us, we have listened. We are all, after all, singing from the same hymn sheet, in particular on Amendments 69, 70”—

The Minister then listed those amendments, which noble Lords, including myself, had put down in support of quickly introducing regulations on the private rented sector. The Minister talked about “materiality” and said:

“It would be ridiculous if this”—

I took “this” to mean the amendments—

“did not find favour with us in terms of a form of words. I accept in principle the intention of this.”—[Official Report, 02/03/11; col. 1141]

I am very grateful for the amendments that he has brought forward, but I had expected him to bring forward something further around the issue of regulations on the private sector to improve energy efficiency and to have a baseline for energy efficiency in private rented sector homes—I expected amendments to be brought forward on that as well.

The Minister may not have had time to bring those forward, or he may be considering them as government amendments for another place, in which case we would welcome that. However, across all sides of this House, we have stressed how important it is that we move quickly with amendments to bring forward regulations for the private rented sector. I hope he is able to satisfy us today that his comments on Report did encompass the amendments he referred to there, and that he does intend to bring forward amendments on the private rented sector. A list of 31 organisations—including Macmillan Cancer Support, Age UK, Citizens Advice, Consumer Focus and Crisis—are all calling for a minimum energy efficiency standard for private rented properties. This is not an issue we can let slide by. I was encouraged by the Minister’s comments on Report and I greatly welcome the amendments he has brought forward today, but I hope that they are a step on the way to the crucial amendments we need to seriously improve the private rented sector.

On behalf of these Benches and in the absence of the noble Lord, Lord Teverson, who is serving the House in another place today, I add our thanks for the way the Minister and his team have handled this Bill and the co-operation we have had from officials. It has been much appreciated. In particular, on Amendment 1, the way that the Minister has listened to the comments from across this House on the issue of moving from “may” to “must” well reflects the concerns that many of us have had about the need to upgrade consumer protection, if we are to make a reality of the Green Deal and all the aspirations that the Government rightly have for delivering our targets on lowering carbon emissions. It is an extremely welcome step and is an indication that the Minister is listening on this issue, as indeed he has on many others.

I remain disappointed that I was unable—either through lack of eloquence or other means—to persuade the Minister that provision for a consumer ombudsman was needed in this legislation. However, I accept what he has said and what his officials have confirmed, that the legislation is enabling in such a way that, should the Secretary of State feel that is desirable, that option remains open. I believe that an ombudsman for the general public is going to be essential in this important area and that this will be something that will come forward, if not in another place, then certainly in the future.

Amendment 1 is a welcome indication that the Minister is listening and confirms that he has been paying attention to the many useful points of clarification that have come from Members who all support ensuring that this Green Deal works.

My Lords, until the noble Baroness made her last point, I was not going to intervene on this amendment, but I would like to associate myself with the words of both my noble friend Baroness Smith and the noble Baroness, Lady Parminter, regarding the way the Committee and Report stages of this Bill have been conducted. I appreciate that the Minister has come some considerable way towards meeting a number of concerns although on this particular one I think the noble Lord, Lord Best, is correct about the need for minimum standards and the noble Baroness, Lady Parminter, is right about the need for consumer protection.

It is important that the Government and the House recognise that, in supporting the provisions of this Bill on the Green Deal, we all recognise that there is still a substantial amount of work to be done in putting the deal together and thereby inspiring confidence in householders and landlords, on the one hand, and in the various different parts of the supply chain, on the other, which will need to act together to deliver the Green Deal.

At several points—I will return to this on a further amendment—during the discussion in Committee and on Report, the Minister said we may need to make a number of amendments in another place. I think the Government will find that there are some anxieties both in industry and on the part of consumers about how exactly the Green Deal is going to be sold and how it is going to be delivered. I suspect therefore the Government need to remain open to the possibility of amending the Bill in another place. I think everybody who was involved in the Committee wish the Green Deal good speed. However, we also know that there are some problems ahead and the Government would be wise to be flexible.

Again, I value very much the comments made by noble Lords. These comments have been made on several occasions and I am grateful for the compliments that have been made. The noble Baroness, Lady Parminter, was the most complimentary so she is top of my class. Seriously, I am grateful to everyone for their kind words.

The noble Lord, Lord Best, made a very good point about PRS properties and with that in mind we have brought forward the idea of a review in 2013. It is fundamental that we make great inroads into the private rented sector—particularly the F and G categories my noble friend Baroness Maddock mentioned and raising them to the minimum standards of category E —and the Government are extremely committed to that. However, we should allow the sector to lead by example to start with and if it does not take that opportunity then we must help it on its way. The Government are committed to taking people out of fuel poverty. That is part of the reason for the Green Deal building on other initiatives that have taken place; it is fundamental and we owe it to the country to get people out of fuel poverty.

The noble Baroness, Lady Smith of Basildon, asked me whether things that I said on Report stand now. I can confirm that they were on the record and I meant what I said. She can take heart from what I said then and the disappointment that she had with these amendments will be carried through into another place and will be left for them to debate. I am sorry to hear there is a little bit of disappointment, but we have, I hope, persuaded and also given way on a vast number of amendments. It would nice every now and then if everyone carried me rejoicing from these Chambers saying how marvellous it was—I do not think I am going to get that—but in any case I hope I have responded to the questions.

Amendment 1 agreed.

Clause 17 : Power to modify energy licences in connection with green deal payments

Amendment 2

Moved by

2: Clause 17, page 14, line 4, after “provision” insert “requiring or”

My Lords, in break with tradition I am going to read a script I have been given because these amendments are complicated. They make small technical changes to Clauses 17 and 20 ancillary to amendments made on Report that apply to the Secretary of State’s power to make licence modifications.

Amendment 2 clarifies Clause 17(3)(f) and provides that provisions can be made in licences requiring payments to be made by or to licensees as well as enabling such payments to be made.

Amendments 3 and 4 provide that licence modifications made under the powers in Clauses 17 and 20 can be of the type envisaged by Section 7(3)(a) or (c) and (4) of the Electricity Act 1989 and Section 7B(5)(a)(i) or (iii) of the Gas Act 1986. Now you can understand why I read this out. I hope that these amendments will be supported. I beg to move.

Amendment 2 agreed.

Amendment 3

Moved by

3: Clause 17, page 14, line 6, at end insert—

“( ) Conditions included in a licence under section 7 or 7A of the Gas Act 1986 by virtue of the power under subsection (1) may do any of the things authorised by section 7B(5)(a)(i) or (iii) of that Act (which applies to the power of the Gas and Electricity Markets Authority with respect to licence conditions under section 7B(4)(a)).

( ) Conditions included in a licence under section 6(1)(c) or (d) of the Electricity Act 1989 by virtue of the power under subsection (1) may do any of the things authorised by section 7(3)(a) or (c) or (4) of that Act (which applies to the power of the Gas and Electricity Markets Authority with respect to licence conditions under section 7(1)(a)).”

Amendment 3 agreed.

Clause 20 : Power to modify energy supply licences to make provision as to consumer protection

Amendment 4

Moved by

4: Clause 20, page 15, line 33, at end insert—

“( ) Conditions included in a licence under section 6(1)(d) of the Electricity Act 1989 by virtue of the power under subsection (1) may do any of the things authorised by section 7(4) of that Act (which applies to the power of the Gas and Electricity Markets Authority with respect to licence conditions under section 7(1)(a)).”

Amendment 4 agreed.

Clause 40 : Power to make domestic energy efficiency regulations: England and Wales

Amendment 5

Moved by

5: Clause 40, page 25, line 35, after “not” insert “materially”

Amendment 5 agreed.

Clause 43 : Power to make tenants’ energy efficiency improvements regulations:

England and Wales

Amendment 6

Moved by

6: Clause 43, page 28, line 22, after “not” insert “materially”

Amendment 6 agreed.

Clause 46 : Power to make non-domestic energy efficiency regulations: England and


Amendment 7

Moved by

7: Clause 46, page 31, line 3, after “not” insert “materially”

Amendment 7 agreed.

Clause 53 : Power to make domestic energy efficiency regulations: Scotland

Amendment 8

Moved by

8: Clause 53, page 35, line 15, after “not” insert “materially”

Amendment 8 agreed.

Clause 56 : Power to make tenants’ energy efficiency improvements regulations:


Amendment 9

Moved by

9: Clause 56, page 38, line 5, after “not” insert “materially”

Amendment 9 agreed.

Clause 59 : Power to make non-domestic energy efficiency regulations: Scotland

Amendment 10

Moved by

10: Clause 59, page 40, line 29, after “not” insert “materially”

Amendment 10 agreed.

Amendment 11

Moved by

11: After Clause 71, insert the following new Clause—

“Smart metering strategy

(1) The Secretary of State shall, following consultation with energy consumers and other interested parties, prepare and publish a strategy to deliver the intended benefits of smart meters to consumers, including in particular low income and vulnerable consumers.

(2) It is the duty of the Secretary of State to report to Parliament on the progress of smart meter roll out every year starting from six months after the coming into force of this Part.

(3) In preparing the strategy the Secretary of State must set out how the smart meter roll out will—

(a) deliver to consumers the benefits identified in the impact assessment of July 2010;(b) ensure adherence to an independent code of practice for installation;(c) contribute to the carbon targets specified in the Climate Change Act 2008;(d) contribute to the elimination of fuel poverty as specified in the Warm Homes and Energy Conservation Act 2000;(e) improve competition in the energy retail market, including in particular in relation to prepayment customers;(f) provide for the interoperability of smart meters;(g) work alongside wider Government programmes such as the Green Deal and water metering roll out.(4) The report should cover progress on the delivery of smart meters, including—

(a) the number of smart meters installed in the United Kingdom, defined as per the Ofgem definition of a completed installation;(b) the costs and savings of the smart meter roll out;(c) the estimated benefits to consumers and taxpayers of the smart meter roll out, with particular reference to low income and vulnerable consumers;(d) estimated effects on the levels of fuel poverty;(e) the estimated energy and carbon reduction from the smart meter roll out;(f) the degree to which interoperability of smart meters has been achieved;(g) customer satisfaction indicators, including levels of complaint;(h) security of smart meters and smart grids in relation to privacy and commercial confidentiality.”

This is in a sense left-over business from Report stage. Again, I am not looking to the Minister to accept the amendment as it stands but to recognise that some of the issues that it brings up need to be addressed by the Government during the Bill’s stages in the Commons, one hopes, or possibly in secondary legislation.

The amendment deals with smart meters. We have had substantial discussions on smart meters in Committee; it is a very small part of the Bill but a very big part of the whole strategy for tackling energy efficiency in buildings, fuel poverty and the price of bills for everybody. Smart meters will therefore be key in improving energy efficiency, changing the behaviour of householders, reducing bills and providing the basis for introducing rather smarter grids into our electricity supply system. However, there are issues relating to smart meters. Unlike the Green Deal, which is voluntary for the householder or landlord, the smart meter is mandatory on the supply company and therefore, in effect, mandatory on the consumer, in that at some point the supply company will have to enter the house and replace existing meters and wiring with ones susceptible to smart metering.

I strongly favour this process and think that it will make a big contribution to energy efficiency; I think that at least some consumers will be able to alter their behaviour significantly and that we should therefore all support the strategy. However, there are some clear anxieties among consumers about the whole prospect of smart meters, some confusion about how they are to be delivered and in particular some concern about the lack of standardised and interoperable meters. I realise that on that front the Government are attempting to bring together the companies, and we are making some progress, but those concerns exist. There are also serious concerns, which noble Lords may regard as irrational, about privacy and what use may be made of the records of energy use. We must recognise those problems and recognise the possibility of serious consumer resistance that needs to be built in to how the rollout is delivered. It was an opportunity in this Bill to give a clearer framework to the totality of the smart meters’ rollout. We are three years on from the 2008 Act and, clearly, there have been developments and slight changes in approach. The clause that would immediately precede the new clause that I propose is, in effect, simply to extend the possibility of altering licences to transmission licences. That may or may not be necessary, but it will probably be necessary in some circumstances—and I certainly support that change. Given that smart meters are such a major part of the provisions and we rely so strongly on them to reduce household energy use, we should perhaps have used the Bill for a slightly wider purpose.

If households and landlords do not have confidence in the process of the rollout, if they are confused, if it leads to a backlash and slows down the programme significantly, it will slow down the achievement of our carbon targets significantly and aggravate the problems of fuel poverty. For example, if interoperability is not achieved, it could aggravate that confusion and limit the real choice of consumers in their ability to switch supply, at least in the short term.

We need to ensure that the framework provides for the Secretary of State to be able to monitor the progress of the smart meter rollout and report to Parliament, to the players in the industry and to consumers on how well the rollout is doing and whether there are problems. Benefits were identified in the overall impact assessment of July 2010 against which progress needs to be measured. The impact assessment on the Bill is fairly minor because it relates only to Clause 71, but the overall impact assessment sets some clear targets. We need to develop an independent code of conduct on how the suppliers and the installers operate with householders. We also need to monitor it against the targets for carbon set out in the Climate Change Act 2008 and the deliberations of the Committee on Climate Change. We need to see how far they can help in the reduction of fuel poverty against the targets there and what contribution the rollout can make, and we need to ensure that during this process we do not inhibit competition within the energy sector but preferably enhance it.

The issue of the recipients of the smart meter provision who are also in a Green Deal was not resolved in our discussions in Committee. Another dimension that was mentioned and is repeated in this amendment is that, in another part of government for which the Minister is not directly responsible, water metering is another major contribution to sustainability but also, indirectly but substantially, to energy usage in the home and in the totality of the water system. Putting in compulsory smart meters for energy without also addressing the water dimension could prove to be a problem down the line.

All I am suggesting in this amendment is that the Government have a clear framework in which they are assessing the delivery of the smart meter rollout, ensuring that we overcome difficulties in inculcating a degree of confidence in the market and in the recipients, and report in such a way that from time to time Parliament can debate the progress that is being made. I hope that the Minister can accept the spirit of this amendment and will indicate to his colleagues in another place, should similar or slightly more succinct amendments emerge there, that the Government give them serious consideration. I recognise that for now we are not going to do that at Third Reading in this place, but I am raising some issues which I hope the Government will take serious note of. I beg to move.

My Lords, I support my noble friend on this amendment, although I have to say that we tend to forget that at the moment a substantial number of meters are replaced every year. The replacement meters have been either replicas or slightly more updated versions of the previous ones. Sometimes they are placed in a different part of the household. If you are lucky, you might even be able to get the utility company to put one in your garden, if you have a garden, so that they do not have to come to your house to read it. What we are talking about initially is scale of operation. We have ambitions for 26 million households—18 million gas meters and some 25 million or 26 million electricity meters to be installed over a 10-year period.

I understand that that work is now going on at quite a rate in some of the utility companies. It would be unfortunate if, in such a large and potentially intrusive operation that will go into every household in the country, a clear form of parliamentary accountability were not involved. Obviously, in order that there be parliamentary accountability we need to know what is happening. I would therefore have thought that an annual report, while it might not be required reading for every Member of the Commons and the Lords, ought to be required reading for members of the appropriate Select Committees which take an interest in these matters. If necessary, that report could be debated annually in both Houses.

Many of us are concerned that we are still rather vague about what is being suggested for this rollout. This amendment goes some way towards identifying a number of concerns and issues. One thing perhaps missing from the amendment is sufficient reference to providing the consumer or householder with adequate information on how the meter operates. If the Minister were to accept the spirit of the amendment, however, he might go away and add to it. If we are to take advantage of the so-called smart element in these meters, it is important that the public understand what is shown on the dials in their kitchens, their gardens or wherever and what those dials can do to help them to use their energy more efficiently and make savings that might mitigate the price rises for electricity and gas that we all anticipate during this introduction.

In principle, this amendment is a good idea. If the Government accept it in spirit, they should be given an opportunity to go away and provide something of their own. A number of bodies outwith this House would want to be able to take the evidence that such a report would provide—for example, the Fuel Poverty Advisory Group which provides help and assistance to Ministers on fuel poverty. It would be emboldened and assisted in its work if it had the kind of technical information from such a report as is being suggested by my noble friend’s amendment, so I give this my full support.

While an amendment of this complexity is easy for Governments to knock down, it might not be the last word on the subject, and it is incumbent on the Government to provide that. That will be a report of sufficient meatiness that it could be chewed over by interested parties and Members of both Houses, and could provide the companies with sufficient information and evidence to be able quickly to change anything that is wrong with the way they are going about their work. One problem that we can envisage here is that the scale of this operation is likely to create something akin to a juggernaut moving across the country and trampling households under its wheels.

Everybody wants to see the introduction of smart meters but it is incumbent on the Government, who have the responsibility of directing that if not actually implementing it, to ensure that public confidence both in the companies and in the whole concept is maintained. I do not think that we have heard many complaints about the work already done. However, it is too soon to reach conclusions, and any horror stories might well jeopardise a project in which everyone sees great virtue. I support my noble friend’s amendment.

My Lords, I, too, have substantial sympathy with the amendment. Before one starts talking too much about juggernauts, it is worth placing on record that we had to have our domestic electricity meter changed a month ago. From the time the man who was doing the work came through the door to the time he left was about 12 minutes. It is a quick and easy operation, certainly so far as electricity meters are concerned.

However, an important point has been missed. By and large, the electricity companies have a poor understanding of their customers simply because they have no way of disaggregating their demand. With a better understanding of why, how and when loads peak in particular areas, which they do not have at the moment, a significant indirect benefit should be possible for consumers, which would be reflected in reduced electricity charges, because we may well be able to run the electricity system with a lower generating capacity than at present because of our limited understanding.

My Lords, one matter which is not dealt with in the amendment—I do not know what my noble friend’s reaction to this will be—is the question of the training of the technicians whose job it will be to install the new smart meters. Some noble Lords may recollect that I pursued this issue over the past year or two with the previous Government. I was informed that the sector skills council which dealt with this—the Energy and Utility Sector Skills Council—had applied for the necessary financial support to enable it to lay out a training programme for smart meter installers, only to be told that that could not be done under the then system, which I hope is in the process of being changed. I raised the matter with the previous Government and the noble Lord, Lord Hunt of Kings Heath, who undertook to look seriously at it, and I have pursued it with other Ministers in the present Government.

Attention needs to be given to this matter because, as a number of speakers have said, if people are going to go into consumers’ houses it is important that they are properly trained to do the work. If eventually, as I have heard said, we are going to have combined gas and electricity meters—but perhaps not at the first stage—that will require a considerable new approach to training.

I have supported the smart meter programme from the beginning and have had some representations—not pressure; that would be the wrong word—made to me that it is a con trick in favour of electricity suppliers and distributors. I do not for one moment accept that argument. As speakers on all sides of the House have said, if it is properly handled and people are given all the information that they should have, which is very important, this could be of real value to consumers. The noble Lord, Lord Whitty, was wise to say that he did not really expect the Government at this stage to accept the amendment but, at some stage, something of this kind will be needed and I hope that it will cover the training of technicians as well as the other matters set out in the amendment.

My Lords, it is clear that smart meters will play an important part in identifying energy usage to consumers and highlighting the impact of energy efficiency measures in the home. Consumer confidence in their operation is crucial.

The noble Baroness, Lady Northover, dealt comprehensively on Report with the intentions behind the amendments and gave a full account of the work her department was doing with the industry and in the discussions regarding a code of practice. It is important that the Government show leadership in this area. The House looks forward to receiving the noble Baroness’s department’s conclusions on this process, as there will clearly be a need for further work to develop the benefits and underline the importance of consumer engagement.

It is important that there is a strong programme on the management of the operation of smart meters, and we support my noble friend’s call that the department reports to Parliament on the measurement of the benefits they will bring to enable full accountability to take place.

My Lords, may I say how delighted I am to see the noble Lord, Lord O’Neill of Clackmannan, in his place? He watched at first hand the horrific events in Japan, where I spoke to him. What an awful time that must have been for him. We are delighted to see him back and, as usual, making some very interesting points.

The amendment of the noble Lord, Lord Whitty, is extremely valuable. He makes, as always, some very good points. Fundamental to this debate has been public confidence: the public must have confidence about the rollout of smart meters. As a department, we are committing a substantial amount of resources to smart meters, as we must get this right. I am not sure that all operators will be as good as the one who came to the home of the noble Lord, Lord Oxburgh; I suspect that, because of his great scientific knowledge, the noble Lord was telling the operator how to install it. Twelve minutes sounds like a very good target for anyone to try to achieve. The training of technicians is fundamental, as the noble Lord, Lord Jenkin, said; there must be great vigilance in this area so that the consumer can have confidence.

The noble Lord, Lord Whitty, made two specific points on the strategy for consumer benefits. We have been carrying out consultation since July on the wide-ranging subject of smart meters. A principal consideration has been a strategy for consumer benefits. We will publish our findings by the end of this month, and I hope that the other place will have the opportunity to debate them.

The Government are sympathetic when it comes to transparency regarding information about and the progress of smart meters. I can assure the noble Lord, Lord Whitty, that we will be developing arrangements for reporting the benefits of smart meters, the progress of the rollout and the delivery resulting from the benefits. That is fundamental not only to the public but to the Government, as we need to know what progress we are making. I hope that I have given the noble Lord confidence that we will take this matter forward in the other place and that he will therefore withdraw the amendment.

My Lords, I thank the Minister for that explanation and the other speakers in this debate, particularly my noble friend Lord O’Neill. The noble Lords, Lord Oxburgh and Lord Jenkin, made important points that will need to be borne in mind during the rollout. Technical training in fitting meters and explaining to consumers how to use them will be an important part of the rollout, so customer service training as well as straightforward technical training will be necessary.

With a bit of willpower, these issues can be overcome. When we shifted to requiring A or B boilers a few years ago, the industry threw up its hands in horror and said that it did not have enough people to do that. However, we rapidly got a programme in place which enabled us to do it. It required a little bit of cross-Whitehall arm-twisting; I expect that the Minister is adept at that, and he may need to use that skill.

I am particularly pleased to hear that the assessment of consumer reaction, which I was aware the Government were undertaking, will be available to our colleagues in another place before they reach their final conclusions. The Minister will know that Consumer Focus, which I formerly chaired, has conducted a fair amount of research on this issue. It will be regrettable, if the Public Bodies Bill is passed, that it will not be in a position to do so on future occasions. It certainly threw up a number of incipient difficulties which are not insuperable but they are significant.

As noble Lords have said, we have to provide confidence. One problem is that the industry has a fairly low rating among consumers, and trust in energy supply companies, which will have to ensure that smart meters are installed, is pretty low. They have made some significant improvements in recent years but they have a poor history to overcome. I am afraid that that still informs a lot of customers’ attitudes towards those companies and causes them to make inferences about the reason for introducing these new machines into their houses. There is some suspicion surrounding the use to which the energy companies may put the data, whereas we can see that the data could be used to provide electricity in a smarter, more intelligent and more cost-effective way. From the other end of the telescope, people are wondering why their supplier needs to know whether they have the kettle on at four o’clock in the afternoon. That is an exaggeration; nevertheless, it is a fear that needs to be addressed in the Bill and in the regulations that come under the Bill, as well as in the way that the Government oversee the whole operation. I think that, from what the Minister has said, our colleagues in another place will have sufficient information on which to base their discussion on this matter. In the light of that, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendment 12

Moved by

12: After Clause 78, After section 3 of the Petroleum Act 1998 insert—

“3A Report on compensation for petroleum spills

(1) The Secretary of State must publish a report every five years about the arrangements in place in the United Kingdom for petroleum companies to compensate for any damage caused, or loss suffered, as a result of petroleum being accidentally released during the operation of licences under this Act.

(2) The report must, in particular, include—

(a) the amount of insurance coverage that industry members have agreed should be available in the circumstances outlined in subsection (1);(b) the Secretary of State’s opinion about whether the amounts are adequate to compensate for any damage caused in the circumstances outlined in subsection (1);(c) the factors that the Secretary of State took into account in reaching the Secretary of State’s opinion under paragraph (b); and (d) the actions that the Secretary of State intends to take, in the event that the Secretary of State considers the amounts to be inadequate.”

My Lords, in replying to the first group of amendments, the Minister expressed regret that, having made very modest but nevertheless welcome amendments, he was not carried aloft from the Chamber in jubilation. Never liking to disappoint the noble Lord, I offer him another opportunity. My foot may not be fully recovered but I might manage to carry him aloft should he want to accept the amendments that we are putting forward today. I reassure the Minister that the only reason that we on this side have put forward any amendments is to seek to improve the Green Deal and to ensure its success, and I assure him that the same applies to this amendment.

The noble Lord will recall that I raised this matter in Committee and on Report. When, on Report, I raised a similar issue about compensation and payments relating to petroleum spills, he assured me that he knew more about this issue, having been involved in insurance himself, and he patiently explained that he would write to me with further information. He has done so and I thank him. It has helped to clarify the situation, and I appreciate his responding in such detail. However, it is that response that has led to our tabling this amendment.

I was seeking assurance in the Minister’s response about where the liability would fall in the event of an oil spill, and I referred to Deepwater Horizon, which we had previously discussed in your Lordships’ House. He informed me that the Oil Spill Prevention and Response Advisory Group had set up an indemnity insurance group to review the current provisions of the OPOL agreement, as well as the financial and cross-indemnity arrangements behind the current mutual co-operative industry’s mechanism on this issue. I understand that, at the department’s request, the group has reviewed the modelling based on worst-case scenarios, on which the liability limit is based. It has also commissioned modelling of alternative spill scenarios with the aim of providing a more comprehensive picture of potential oil spill costs, and there will be further discussions on this. The Minister told me that the work is ongoing. However, he also assured me that, if that work indicates that a credible worst-case scenario could result in damage exceeding $250 million, the Government will require higher levels of cover. All that my amendment would do is build on what the Minister said a moment ago when he referred to his commitment to transparency and to monitoring the situation. It would be helpful for Parliament and those who are interested to know that the insurance available to deal with these catastrophes is at the appropriate level. That will happen only if there is a review and transparency.

The amendment requires the Secretary of State to publish a report every five years about the arrangements that are in place and specifies some issues that must be included. I hope that the Minister will look at this amendment. If he is unable to accept it today, perhaps it can be discussed with colleagues in the other place. I welcome the opportunity to carry him aloft from the Chamber should he wish to accept the amendment at this point.

My Lords, we are very sympathetic to the concern expressed behind the amendment and we have debated both in Committee and on Report the issue of compensation for oil pollution. The main concern in these debates was that arrangements should be in place to ensure that companies could meet any liability arising from oil pollution during their licensed operations.

We explained in these debates that there are indeed appropriate requirements in the licences and that the industry has in response formed a voluntary liability pool, the Offshore Pollution Liability Association—OPOL. OPOL membership requires operators to demonstrate provision to meet clean-up costs and associated damages of up to $250 million on a basis of strict liability in the event of a pollution incident. OPOL also collectively provides a back-up mechanism that in the event of default by any operator, the other members will meet claims for clean-up and associated damages up to the same financial limits. That liability pool is unique to the North Sea, and we believe that it provides a very solid assurance that all pollution liabilities will in practice be met. I particularly stress the significance of the acceptance of strict liability by OPOL members, which means that anyone who has suffered loss as a result of pollution from an oil installation does not have to show that the operator is at fault. He or she merely has to establish that the damage or loss is a result of the pollution. As I have said, it is unique to the North Sea.

Since Report, my noble friend Lord Marland has written to the noble Baroness, Lady Smith, with further details of this arrangement and I thank her for her very positive response to that correspondence. This amendment, however, addresses a slightly different point from the amendments tabled in Committee and on Report. We made the point that the amendments tabled then were unnecessary as appropriate requirements were already in place. The focus of this amendment is rather that the Secretary of State should publish a report on the arrangements in place, the amount of insurance cover provided, and so on. We are wholly sympathetic to the idea that more public information should be available on these matters. As the noble Baroness notes, further work is ongoing under the auspices of OSPRAG, in which government and industry are working together to review the industry’s practices in the light of what has been learnt from the Macondo disaster. One of the OSPRAG working groups is specifically addressing liability and indemnity issues. We are happy to undertake that the Government will make an appropriate statement in the House on the outcome of this work and any changes that may appear necessary or desirable. I hope that that reassures the noble Baroness.

As for future developments, the department is committed to laying an annual statement before the House, and we will, of course, use that to report on any new developments or proposed new measures. In the light of those reassurances, I hope that the noble Baroness will feel able to withdraw her amendment.

I am grateful to the Minister for her response. It covers a number of the points that I was seeking to address, mainly transparency and the responsibility of government in reporting back to Parliament. On the basis of her response, I am happy to withdraw the amendment.

Amendment 12 withdrawn.

Clause 93 : Application of certain provisions of the Energy Act 2004 in relation to administration orders

Amendment 13

Moved by

13: Clause 93, page 74, line 31, at end insert—

“(2A) In the application of section 157(2), for paragraph (b) substitute—

“(b) that the company is likely to be unable to pay its debts and that the directors of the company have consented on that basis to the making of the order; or”.”

My Lords, I raised this issue in Grand Committee and briefly on Report when my noble friend Lady Northover was kind enough to say:

“I think the best way to take this forward is by consultation. If he would like to discuss the details with officials, we could see what, if anything, needs to be addressed”.—[Official Report, 2/3/11; col. 1163.]

With the help of her officials, I did just that. I had a very interesting telephone conversation and subsequently a paper from a very helpful lady, Dawn Armstrong, in the Department of Energy and Climate Change. Briefly, the issue concerns the power of the Government to put an energy supplier into special administration. It is built on extending the powers in Section 157(2) of the Energy Act 2004 as adapted and applied by Clause 93. Section 157 is headed “Powers of Court” and subsection (2) states:

“The court may make an energy administration order in relation to a company only if it is satisfied— (a) that the company is unable to pay its debts; (b)—

and these are the critical words that I am unhappy with—

“that it is likely to be unable to pay its debts”.

Then there is a third ground on which it might be appropriate to wind the company up in the public interest. The Insolvency Act, on which these words were originally based, included the words,

“likely to become unable to pay its debts”,

but in those circumstances it was only on an application by the directors of the company. Under Clause 93, it is a power of the Secretary of State, or of Ofgem with the consent of the Secretary of State, to apply to put a company into what is called special administration under this Act.

Ms Armstrong sent me an extremely helpful note, much of which I accept. For the benefit of what I hope will eventually be a debate in another place on this subject, I shall read part of it out. She wrote:

“Administration under the Insolvency Act 1986 is a business rescue procedure, with the survival of the company as its primary objective. If entry to administration were only available to a company that could not pay its debts at the date of commencement, the rescue of viable businesses might be jeopardised. For this reason, administration can also be entered when a company is likely to become unable to pay its debts. The clauses in the Energy Bill on special administration follow these principles. The energy supply company administrator’s primary objective is to rescue the company as a going concern. Therefore these provisions apply the same tests for insolvency as the Insolvency Act”.

She used the words “the same tests”. Yes, they are the same tests, but not by the same process. That is basis of the anxiety. I accept that there is a need for a process. There is no question about that. When you have a large energy supply company supplying millions of customers and it seems unlikely to meet its obligations, obviously the authorities must step in and do something about it.

The second point made in the paper, which I had perhaps not entirely appreciated, was that this applies only to supply companies and would not affect the generating part if it were in a separate company in the group. I am not sure that I wholly understand that because it is difficult to imagine a supply company unable to pay its debts if the company is otherwise solvent, but that point might need to be taken.

The third point made in the paper is that it is a court process and not just a peremptory decision made by the Secretary of State or by Ofgem. It is a decision to take the matter to the court and for the court to decide. I will return to that in a moment. My noble friend Lord Marland wrote to me on this matter. He wrote:

“Of course The Secretary of State and Ofgem would no doubt want to discuss any application for an energy supply company administration order with company directors in advance. And directors will be able to contest the application in court. However, enshrining a duty to consult directors in the legislation could lead to delay and it is important that the Secretary of State has the flexibility to act quickly”.

I think that my noble friend might have misunderstood the purport of my amendment. I should thus like to make four points about that, and no doubt my noble friend Lady Northover will be able to reply. First, in my discussion with her official, she made the point that she thought that very few of the energy suppliers were worried about this. Since then I have made inquiries and have been told that the energy suppliers are solidly behind this amendment. I have had letters from two or three of them to confirm that point. It is not true to suggest that this is somehow only a minority concern. The industry’s points of opposition to the special administration threshold—because that is what we are talking about—are vigorously maintained.

Secondly, the official’s note is a perfectly adequate summary of the principles of the special administration regime. It also properly acknowledges that this regime does not disapply the provisions of existing insolvency law. However, it does not seem to acknowledge that the test for putting an energy supply company into special administration is set at a very low threshold: that is, lower than the threshold at which Ofgem can revoke a company’s licence under the licensing provisions. If a licence is revoked, the practical effect is to put the company into special administration. It is certainly, in at least one crucial respect of its business, the inability of the directors to carry it on.

I made further inquiries about the licence. Is it different or does it cover broadly the same process? Ofgem can revoke an energy supplier’s licence on a number of grounds, including if the company has committed an offence while making its original application or if it has failed to comply with a final enforcement order in respect of a breach of a condition or something of that sort.

However, the ground that is relevant to this amendment is that which applies when the company is in financial difficulty. In that event, Ofgem can revoke the company’s licence if the company is unable to pay it debts. There is no permission or discretion to revoke the licence if the company is likely to be unable to pay its debts. Why is it necessary, therefore, to put this provision about,

“likely to be unable to pay its debts”,

into the administration procedure under this Bill when it does not exist under the licensing provision?

More than that, the licensing provision sets out clearly what the court needs to be satisfied with before it withdraws the licence. The company is not to be deemed to be unable to pay its debts unless at least one written demand by a creditor for a sum of more than £100,000 has remained unpaid for at least three weeks. Nor is the company to be deemed to be unable to pay its debts even if such a written demand is outstanding, provided that the company is contesting it in good faith and with due recourse to all appropriate legal process. That seems to be quite different from what we are being asked to legislate in Clause 93. This power of the Secretary of State to go to the court and apply for a special licence is questionable. The contrast between that power in the Bill and the power to revoke a licence seems very stark. In the power to revoke a licence, there is no reference to the company being unlikely to be able to pay its debts, and the definition of what constitutes an inability to pay its debts is detailed and specific. Neither of these applies to the provision in the Bill. That point was not made during the earlier debates.

The third point, which I did make, was that we have had practical experience of the use of the power to put a company into administration if it is deemed to be unlikely to pay its debts. That happened in the case of Railtrack. There was an accountant’s report, which was all that was necessary, to suggest that Railtrack was going to be unable to pay its debts, so off went the Government to the court, and we all know the history after that. This has been widely commented on. It was not, even at the time, entirely bona fide. A political objective was being sought. It is that kind of thing that is causing concern and uncertainty in the industry.

My last point is that my noble friend’s letter, which I referred to a moment ago, raises the idea that I am trying to enshrine a statutory duty to consult directors. He says it would cause delay. In the circumstances that we are considering, a week or two’s delay does not seem very important. However, my amendment does not impose a duty to consult. It says that the court can make a special administration order only if it is satisfied that the company is likely to be unable to pay its debts and that the directors of the company have accepted that to be case and have consented to the order on that basis. To put it bluntly, the directors will have their day in court and that is how it should be. This amendment provides the beginnings of a safeguard against the situation that Railtrack was put in whereby special administration was imposed on the company simply on the say-so of an accountant’s report.

I entirely accept, as I said a few moments ago, that the authorities need to have the power to help a company to carry on its business if it is in difficulties for the protection of both the business and its consumers and, as my noble friend said, to spill over into other companies. A rescue package might have to be mounted, but I contend that this must be done in a way that does not sow uncertainty and raise the risks for investors and their suppliers. My evidence that that is the fear that the industry has at the moment is strong. The amendment seeks to enshrine a safeguard in the Bill to avoid that. I beg to move.

My Lords, we are grateful to my noble friend for raising this important issue, which enables us to clarify further and to put the arrangements on the record. We understand that there might be concerns that the tests for insolvency set out in these provisions appear to be rather wide, but they are statutory tests for insolvency as set out in the Insolvency Act 1986. As my noble friend has indicated, it is also a matter of balancing the interests of the companies, consumers and the public interest.

Administration under the Insolvency Act 1986 is a business rescue procedure, with the survival of the company as its primary objective. If entry to administration were available only to a company that could not pay its debts at the date of commencement, the rescue of viable businesses might be jeopardised. For this reason, administration can also be entered when a company is likely to become unable to pay its debts, which was the focus of what my noble friend said.

The clauses on special administration in the Bill follow these principles. When seeking to bring an energy supply company administration to an end, the administrator’s primary objective will be to rescue the company as a going concern. Therefore, these provisions apply the same tests for insolvency as the Insolvency Act. My noble friend argued that the process is different. As he has already picked up, the Secretary of State and Ofgem will no doubt want to discuss with the company’s directors in advance any application for an energy supply company administration order. However, enshrining in the legislation a duty to consult directors could lead to delay. This is significant; the Secretary of State needs flexibility to act quickly if the company’s position poses a threat to the rest of the market. That is extremely important to remember in this case.

The amendment would require the court to apply a stricter test for insolvency when considering applications for energy supply company administration than it does for applications for ordinary administration. It is therefore conceivable that an application by the Secretary of State for an energy supply company administration order could be dismissed, while an application for ordinary administration by a creditor of the company could succeed. This could lead to the very situation that the provisions in the Bill are intended to address.

The fact that a court process is required provides an important safeguard for companies, as the directors of the company have the opportunity to contest the order in court. They will no doubt use the kind of material that my noble friend has just mentioned.

My noble friend mentioned Railtrack. In October 2001, the High Court granted a railway administration order in relation to Railtrack. When granting the administration order, Mr Justice Lightman said:

“This is clearly a case where the making of a railway administration order is not only appropriate, but absolutely essential”.

If my noble friend would like, I can fill him in at another time on the reason for that judgment being made. The company was put into administration to ensure that the railway network continued to operate and was properly maintained and managed, and that it was done in the public interest.

I make it absolutely clear that it is intended that the Secretary of State would apply for an energy supply company administration order only as a last resort and to prevent the risk of financial failure spreading to other companies. It is important to balance duties to the public with the rights of the companies. Energy supply is vital to the public and to the economy. It is therefore very important that this matter is looked at in the context of the public interest. The balance must be right. What we have seen recently in the banking industry, for example, shows how important it is to be very careful in this area.

I hope, therefore, that I have sufficiently reassured my noble friend and that he will now withdraw his amendment.

I am extremely grateful to my noble friend Lady Northover for the care with which she has replied to this amendment. I have no doubt whatever that the industry will wish to study very carefully what she has just said. I have entirely accepted the case, and I think the industry accepts the case, that there is a need for the authorities to intervene. Our problem is that that might happen when the companies’ assets and liabilities appear to be in balance but someone has thought it unlikely that they will be unable to pay their debts in the future. This seems to me and to others to be an uncertain test. It would behove the Government to try to find some alternative form of words that would allay the undoubted feeling of insecurity and unnecessary risk that the companies are running under the process of the Bill.

However, as I made clear last week to my noble friend Lord Marland, it is not my intention to divide the House on this amendment but to make sure that the arguments are on the record and can be referred to in another place if that appears to Members of another place to be appropriate. Having said that, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendment 14

Moved by

14: After Clause 101, insert the following new Clause—

“Compensation where the Secretary of State requests termination of offshore lease or agreement to lease

(1) The Secretary of State shall make a scheme (in this section, an “early termination compensation scheme”) to have effect where—

(a) a lease granted or agreement to lease has been made by the Crown Estates for the purpose of construction and operation of a generating station powered by wind, wave or tidal energy, or of equipment for transmission of electricity at a site in United Kingdom territorial waters or the REZ;(b) that lease or agreement to lease gives the landlord power to determine the lease or agreement where the Secretary of State so requests on the basis that the whole site, or any part of it, is required in connection with oil or gas works or rights; and(c) the landlord proposes to determine the lease or agreement, as regards the whole site or any part of it, as a result of such a request.(2) An early termination compensation scheme—

(a) must require the owner of, or person seeking to exploit, the oil or gas works or rights in question to pay compensation to the full extent of the loss which is likely to be incurred including the recovery of any wasted expenditure, loss of profits and any consequential loss suffered as a result of such works, by the lessee or holder of the agreement to lease as a result of the determination;(b) may, subject to paragraph (a), make such provision as the Secretary of State considers appropriate for the computation of compensation;(c) must make provision for the procedure applicable to the making and determination of claims, including provision for resolution of matters, in the event of disagreement, by an independent body;(d) must provide for the Secretary of State, when satisfied that compensation as required by the scheme has been agreed or resolved, so to certify in writing; and(e) may contain such other provision as the Secretary of State considers appropriate.(3) The landlord must not determine the lease or agreement to lease until the Secretary of State has certified the determination in accordance with subsection (2)(d).

(4) Subsections (1), (2), (5), (6), (7)(b) and (10) of section 36 apply, with the necessary modifications, to an early termination compensation scheme.”

I put down a similar amendment at Report which we were unable to debate. I am grateful to the Minister and his staff for talking to my noble friend Lord Grantchester in my absence. That makes me more confident that the Government understand that there is still a problem.

The amendment relates to the situation where a renewable energy enterprise has invested, at least as far as getting a lease from the Crown Estate, in offshore wind energy—it could be tidal or wave energy—and subsequently there is an oil discovery which would interfere with that site. This could result in a direct conflict, so my original attempt was to ensure that the Secretary of State could prevent such an oil licence being given unless the two sides negotiated an agreement. However, the noble Baroness, Lady Northover, persuasively indicated that the Government have this in hand, that there are negotiations going on and that they are talking to the industries and trade associations. That is indeed true, but the problem is that they have been talking to those two sides for six years and as yet we have no agreement on how to deal with it.

It was clear from what Baroness Northover said that the Government would not be minded to provide for such an override. In my view, an override would restore the balance between the two sides, but nevertheless the Government were not prepared to go down that road. I have therefore reverted to my third choice. My first choice is to have an agreement, my second choice is that the Government should have the means to prevent the oil or gas development happening unless there was an agreement and my third choice is that, if the oil or gas development goes ahead, compensation should be paid. That should be set out in statute.

One of the reasons why I felt it necessary to return to this is that the noble Baroness, having made some reassuring noises, added another comment, which I did not pick up at the time in Committee, when she said that,

“if the oil company is not prepared to offer appropriate compensation, there is no question of the Secretary of State intervening to override what is happening there”.—[Official Report, 8 February 2011; col. GC52.]

I was not entirely sure what that meant, because it seems to me that where there is no agreement and the Secretary of State, having tried to get the two sides to reach an agreement, judges it to be in the public interest that the oil exploration goes ahead, there ought to be some compensation involved. It is important that we register this as an ongoing concern both for the offshore wind-energy companies and, potentially, for tidal and wave installations. Because the clause in the Crown Estate’s lease enables this to happen, some intervention by the state or through the contractual provisions is required to even up the balance between the two sides.

I recognise that this is a complex area and it would be better for all of us if the Government and the two sides could reach agreement, but six years without agreement does not give me huge confidence that we will solve this before the passage of the Bill through both Houses of Parliament. I therefore tabled the amendment to register that with the Government and possibly to persuade colleagues in another place that this is an important issue. If investment in offshore, wind and other renewable technologies could effectively be overridden by a new oil exploration taking place in a site that had already been allocated and for which a lease had been agreed, some compensation is required if we are to encourage investment.

What lies behind this is that making a major investment in offshore wind and other renewable technologies requires significant private capital. For the most part, that will need to be raised from the markets. Although some large companies are investing in alternative technologies, we are mostly looking at finance through the City or the markets in one way or another. As long as potential investors can see not only that an investment could in effect be lost but that there is no legislative provision for compensation, clearly that will deter investment. That is what the offshore wind companies claim and it seems a valid point on which public policy should clearly give an indication.

I hope therefore that the Government will recognise that the third-choice option of providing in statute for some form of compensation is probably the least they can do in the circumstances. I hope that they will accept the amendment. If they cannot do so today, perhaps a similar amendment could be moved in another place and they could accept that. I beg to move.

My Lords, the amendment certainly addresses an extremely important point. I conclude from the points made by the noble Lord, Lord Whitty, that the issue involves three separate elements: the Government's North Sea renewable strategy; investor confidence; and the behaviour of the Crown Estate. Unless the problem is addressed, we may be dealing with simply a matter of encouraging investment in the North Sea but of making it possible. Now is not a good time to raise money for renewables or anything else, and this could be the last straw when it comes to investment companies looking for where to put their money.

Anyone observing the behaviour of the Crown Estate in recent years cannot be anything other than impressed by the vigour with which it is pursuing the objectives that must have been imposed by its master the Treasury. To describe the Crown Estate as hard-nosed might be an understatement. Indeed, it does not have responsibility for delivering the Government’s renewable North Sea strategy. Without some clear statement, ideally in the form of a statutory instrument of some kind as suggested by the noble Lord, Lord Whitty, or some comparably sure investable assurance, we will not see this going ahead.

I add our support for the noble Lord, Lord Whitty, in raising this important issue about creating a level playing field between the respective players in using the marine environment and the seabed. I also thank him for highlighting again, as he has done so eloquently in the past, the risk that not tackling this issue of the leases that can be rescinded by the Crown Estate will cause huge problems for future investment in renewable energy. While they may have taken six years to potter around on this issue, the Government know—as we in this House all know—that, if they are to meet their targets on renewable energy, this issue has to be resolved very quickly to get the future investment in renewable energy.

My slight concern with this amendment is that it seeks to draw out one particular problem out of the complex number of issues that make up the jigsaw of coexistence between the respective oil and gas companies and those involved in renewable energy. As RenewableUK said,

“efforts to work together to prevent problems are far more likely to succeed if a fair and clear framework for co-operation is established”.

While I support this amendment—because it is right to raise this important issue that leases can be rescinded—I am concerned that it draws out only one particular issue in the jigsaw. If we are to get an equitable solution that all parties can agree to, there is still merit in looking at all those issues together.

Therefore, if the Minister is not minded to accept this amendment, I and other Members of this House would be grateful to know that the ministerial team is working now, with all parties, to agree such a fair and clear framework for co-operation that covers all the issues, not just the—admittedly important—issues around the termination of leases. If that framework can be agreed, which I hope can be achieved during the passage of the Bill as it goes to another place and comes back, that would give Members in this House the confidence that the Government recognise this issue, which has been raised by both sides of the House. The present state of affairs, whereby the leases can be rescinded for offshore wind if oil and gas companies come ahead with proposals, is not satisfactory, will not deliver the Government’s objectives for renewable energy and does not create a level playing field.

My Lords, it is important to promote the coexistence of UK oil and gas interests with offshore renewable energy expansion. We all want to maximise the growth of both sectors in the UK and thereby to enable the UK to benefit from sustainable electricity supply, strong oil and gas revenues and job creation in both sectors. As I understand it, there is an imbalance in the rights under the lease, according to whether the lease is in the hands of the oil and gas industry or the renewable wind industry. Where the oil and gas industry has an existing lease from the Crown Estate, the renewable industry can encroach on that territory only through commercial negotiation. Where the renewable industry has the lease, a clause in that lease gives the Secretary of State powers to terminate offshore wind-farm leases in favour of oil and gas and does not specify whether compensation would be due or how that amount would become due. This causes alarm in the renewable offshore wind industry that it could stifle investment in developing sites.

My noble friend brings forward his amendment to resolve the situation through the operation of a compensation scheme to cover the situation where the Secretary of State may be minded to terminate a lease in favour of the oil and gas industry. This scheme would give renewable developers the assurance that they feel they need to overcome reluctance to invest in developing a lease where it could be thought encroachment may happen from oil and gas operations. We understand there has never been—and, indeed, there is unlikely to be—such an occurrence. However, the renewable industry has the perception that the possibility of an early termination is detrimental to its financing and the exploitation of leases. This amendment seeks to end that uncertainty and uneasiness in the investor market.

I am sure the Minister would want to find a way to end the antagonism between the two key developers in the operation of leases. Can he give further assurances today, or even offer to facilitate a meeting with his department, so that the two protagonists could agree and cement a way forward?

My Lords, I am very grateful to the noble Lord, Lord Whitty, for pointing out this particular area. We find ourselves perhaps in the crossfire between two interested bodies: RenewableUK and Oil & Gas UK, both of which are fighting for their own corners.

I am afraid I am attracted by the second option—I think it was the second option—to carry on the dialogue. We do not believe that the issue has been going on for six years, but I am very grateful for the historical information, which officials had not imparted to me. I think it is attractive for us to carry on the dialogue and, I might say, knock heads together, because it is important that we get these boundaries clearly defined. As the noble Lord, Lord Oxburgh, and the noble Baroness, Lady Parminter, both said, this is a complex thing that cannot be done quickly and needs negotiation. It needs both parties to come to the table to help us find the correct solution. The Government are immensely committed to it because it is important and therefore I am extremely grateful that this matter has been raised, but noble Lords have our assurance that we are pressing on with the negotiation. We intend to have a resolution, particularly as the renewables industry develops, as soon as possible, but we are in earnest.

I want to clarify something from Hansard that the noble Lord, Lord Whitty, said my noble friend Lady Northover said. Let me read out—another rare event for me—what the statement, in case he hears it incorrectly, should have said: I am happy to repeat the assurances we gave in Committee that where the oil company is not prepared to offer appropriate compensation, the Secretary of State will not intervene, on behalf of oil companies, and therefore the oil and gas development will not be permitted. I hope that clarifies that fundamental point.

With that, I hope the noble Lord will withdraw his amendment.

My Lords, I am very grateful to the Minister for clarifying that because that is not the way the original Hansard report read. As I say, I did not pick that up in Committee itself but only subsequently.

I think we all agree that we need diversity of supply and that we need oil and gas and offshore wind as a part of our energy mix. We also have a public policy objective of a certain level of renewables to which offshore wind will be the major contributor. Therefore there is another incentive for Government to get this right. Clearly, a general coexistence and co-operation agreement between the two sides would be highly desirable, and I am certainly happy to support the Government’s attempts to get that. I think he will find that this has been on the agenda for some considerable time. It might be five years and not six, but I think it is six years since I was a Minister and it was on the agenda within the former DTI, which sought comments from my department, which was Defra. So it has gone back that far. It may not have been a continuous negotiation, but the issue needs facing up to.

The renewables industry certainly feels, particularly in the present tight market, as the noble Lord, Lord Oxburgh, indicated, that this is a serious deterrent to getting the kind of funds needed to deliver what are, after all, the Government’s own objectives. He is certainly also right that—let us put it kindly—the nature of the legal advice that the Crown Estate appears to be getting does not help the situation either. It is a complex issue.

I am happy for today to accept the Minister’s assurance that we will continue to try to get an agreement. I suspect that the timescale of this Bill is not sufficient to get this agreement and the Government at some stage of the process may well consider they need a little bit of leverage here and may come back to something like this agreement. However, for today I withdraw the amendment.

Amendment 14 withdrawn.

The Bill was read a third time. A privilege amendment was made and the Bill was passed and sent to the Commons.

Fixed-term Parliaments Bill

Committee (1st Day)

Relevant documents: 10th Report from the Delegated Powers Committee and 8th Report from the Constitution Committee.

Clause 1 : Polling days for parliamentary general elections

Amendment 1

Moved by

1: Clause 1, page 1, line 4, leave out subsection (2) and insert—

“( ) The polling days for the next parliamentary general election after the passing of this Act will be the weekend of 8 to 10 May 2015.”

I wonder if I may be permitted to make a general point, briefly, as we move into Committee, before I come to the specific matter of Amendment 1. I tabled this and other amendments after I had seen last Thursday that only eight amendments had been tabled to this Bill in Committee. I began to be worried that we might not conduct a proper scrutiny of the Bill in Committee—the very opposite hazard to that which we faced with the previous major constitutional Bill, the Parliamentary Voting System and Constituencies Bill. I have tabled rather a lot of amendments, but I assure the House that neither I nor my colleagues intend to mount a filibuster on this Bill—nor did we on the previous Bill. We tabled some dozens of amendments, but that was very modest indeed compared for example to the opposition parties in the Assemblée nationale de France in 2006, when in opposition to the Government’s measure to reduce the state’s shareholding in Gaz de France they tabled 137,449 amendments. That was a real filibuster. Noble Lords will also be aware that the earliest recorded instance of the practice of the filibuster was on the part of Cato the Younger, who talked out proceedings in the Roman senate because he believed that it was important to resist the ambitions of Julius Caesar, flushed with victory, to flout the conventions of the Roman republic. Of course, for Julius Caesar read Nicholas Clegg—and our task has been to resist the Caesarism of Mr Nicholas Clegg.

In all seriousness, I believe that the point at issue in our proceedings on the Parliamentary Voting System and Constituencies Bill, aside from the particular contents of that legislation, was the continuing ability of this House to perform its role as a revising Chamber. Proceeding in a fashion whereby legislation is scrutinised on all sides of the House, we move things forward on the basis of reasoned debate and the Government listen and accept well made arguments, particularly when supported by majority opinion in this House. But I am encouraged because I need not have feared last Thursday that there would not be enough amendments. Happily, Liberal Democrat and Conservative Lords have tabled considerable numbers of amendments. They have awakened from their long slumber during the Parliamentary Voting System and Constituencies Bill. The noble Lord, Lord Rennard, looks deprecatingly at me, and if he will let me finish my sentence I shall give way to him. It is certainly the case that we heard him sleep-talking and occasionally we heard the noble Lord, Lord Tyler, groan. But in the main, there was a very disappointing lack of participation from noble Lords on the other side of the House on that Bill.

My Lords, very briefly, I say that the noble Lord did perhaps invite us to slumber on a number of occasions in the course of that Bill. However, having studied the recent precedence of filibustering in the French Assembly, he must have been unaware of those precedents at the time of the passage of that Act.

The noble Lord, Lord Rennard, makes an excellent point. However, I am optimistic because we are about to resume proper scrutiny in your Lordships’ House.

The noble Lord referred to slumbering Members on this side of the House. There is photographic evidence that the only people who actually went to sleep were people listening to his speech on his side of the House.

On the contrary, I myself went to sleep, but not during my own speechesalthough I might have done, and indeed the noble Lord might have supposed that I had done. I concede that at certain points.

We are about to resume a proper practice of scrutiny in the best traditions of your Lordships’ House. It is particularly important given that there was no Green Paper heralding this legislation, there has been no pre-legislative scrutiny, yet this Bill is of very great constitutional importance in itself and its provisions interact with other constitutional measures. For example, they interact with the provisions for boundary reviews that we just legislated in the Parliamentary Voting System and Constituencies Act. They interact with provisions that we can anticipate in a draft measure for reform of your Lordships’ House. They interact with the contents that we can anticipate of a draft parliamentary privileges Bill, which we are led to expect. I think that it would have been better if the Government’s proposals in all these respects had been laid out and available for pre-legislative scrutiny rather than that Parliament was required, effectively, to legislate on aspects of the constitution without having the ability to consider the interplay between different reforming measures. However, I am encouraged by what the Deputy Prime Minister said in the Constitution Committee of your Lordships’ House on 13 October last year in responding to the noble Lord, Lord Pannick:

“Of course, what matters now is the degree of scrutiny that”,

the Fixed-term Parliaments Bill,

“is subject to as the legislation passes through both Houses. On that we are very clear. We want to make sure that it is subject to the greatest possible scrutiny, which it rightly deserves”.

In that spirit, I beg to move Amendment 1 in my name.

The Bill, as drafted, prescribes polling at general elections on a Thursday. It ignores the debate about the case for polling at weekends or other ways in which polling can be facilitated for our citizens. It effectively closes down that debate, which has been proceeding somewhat desultorily for a number of years. However, it is a proper debate and I do not think that it should be instantly closed down. We all have a major concern about how to improve participation in elections in this country. I am indebted to the Library of the House of Commons for a chart that it has provided in one of its notes, which shows a tendency for turnout at general elections to have declined significantly between 1950 and 2010. The bar chart indicates that in 1950 turnout in the general election of that year was of the order of 83 per cent. It fell a little bit at subsequent elections, but in February 1974 it was at or very close to 80 per cent, which is remarkable. Of course, the country was in crisis at that time and it was perceived to be an exceptionally important election. Nevertheless, looking back from where we are now, we would regard it as quite remarkable that turnout was 80 per cent in February weather conditions in 1974.

Would the noble Lord recollect that in the election of 1974 there were very few postal votes cast? People actually made their way in inclement weather to the polls because they felt strongly about the issues. Have we not made voting too easy with too many postal votes allowed, and does that not relate to the falling off in the percentage poll that we have seen in recent years?

The noble Lord, Lord Cormack, raises an important point. It was the more remarkable that there should have been an 80 per cent turnout in February 1974, given that it was not an easy thing to secure a postal vote in those days. I wonder whether the ready availability of postal votes in more recent elections has contributed to a decline in participation. It is not immediately obvious to me why that should be so but the noble Lord may have something to say about this a little later. Whatever may be the truth there, what we have seen in elections subsequent to that of February 1974 has been a pretty dismal trend of declining participation in general elections, reaching a low point in the 2001 election, where I think it was probably under 60 per cent, and rising slightly since then so that in the 2010 general election the turnout was 65.1 per cent. All of us must worry about the implications of that.

All sorts of explanations are offered for declining participation: dissolving class structures, since people in this country do not so completely identify themselves with the two major political parties; more fluid communities, in a whole variety of senses; rising affluence over the post-war period, so that people perhaps feel a less burning need to secure what they can from politics; the privatisation of economic and social responsibility; the dousing of politics in contempt by the media; the rise of celebrity culture; and the perception on the part of very many people that casting their vote will make no difference. General elections are seen to be determined in a relatively small number of marginal seats. There is the view, which a number of us have perhaps heard on the doorstep: “They’re all as bad as each other”—a poor opinion of politicians and politics. There is perhaps also a view that compared to what may have been the case in the past, British Governments are now rather powerless, whether at home or abroad. I do not know but those are among the explanations that have been offered.

There is one explanation which is germane to this Bill and which the Government ought to take seriously: that voting arrangements are inconvenient. There is the requirement to turn up to vote—you can get a postal vote, as the noble Lord reminded us but the normal practice is still for people to turn up and vote in person—on a Thursday within certain hours. There have been experiments in trying to facilitate participation in elections. There has been an extension of postal voting and there have been trial schemes for advance voting in supervised polling stations, so that people could cast their vote ahead of the formal polling day. Thought has been given to whether people should be able to vote in supermarkets and so forth. Most significantly, it has been proposed that polling should be shifted from the conventional, traditional Thursday to weekends when it can be supposed that it would be much easier for more people to make it to the polling booth.

We had a note from the Electoral Commission, which came in only late this morning. Admittedly, it had not had very long to prepare its briefing but it is always helpful if people who want to advise us can get their briefing in to us a little earlier than that. It comments on Amendment 1:

“While the Commission is not in principle opposed to polling day being moved to the weekend, we have stressed that any such change should only be made if there is clear evidence that it would be of significant benefit to electors. At present, we do not believe that there is sufficient evidence on which to reach a definitive conclusion”.

That must be an entirely sensible point of view. In the absence of sufficient evidence, it would not be sensible to make that change but the question is whether more evidence might be obtainable and whether it should be considered by the Government before they legislate, as proposed in the Bill, to establish definitively and for ever and a day that polling will take place on Thursdays.

The note from the Electoral Commission goes on:

“The Commission has … evaluated a number of local pilot schemes involving advance voting—where electors would be able to vote in a supervised polling station within their local electoral area between one and seven days before the principal polling day—and has concluded that such facilities could help to enhance the accessibility and convenience of the electoral process. We have called on the Government to consider introducing advance voting as part of a comprehensive electoral modernisation strategy”.

Have the Government considered the experience of this pilot scheme and are they thinking, as the Electoral Commission would have them do, about a comprehensive electoral modernisation strategy? Did Ministers consider whether it would be appropriate to allow voters the opportunity to vote at weekends instead of on a Thursday before they wrote Thursdays into the Bill? If they did not do so before they published the Bill, will they now consider it?

I support Amendment 2 and the amendments in my name and the names of my noble friends Lord Marks and Lord Tyler.

Many noble Lords will know that I have long been an advocate of voting at weekends. They will also know how frustrated I feel that, among the many models piloted by the previous Labour Government to try to explore different ways of increasing turnout in local elections, only one pilot of weekend voting was ever undertaken—in one place, at one weekend—and that was of limited value. The idea of voting at weekends is not new; it has been floated and discussed in some form, but never properly debated in Parliament in such a way as to enable Parliament to decide the issue.

The Home Affairs Select Committee considered the issue in 1997; a Home Office working party looked at it in 1999; it was the subject of some limited debate when we permitted pilots as a result of the Representation of the People Act in 2000; the then Office of the Deputy Prime Minister further considered the matter in a consultation paper in 2002; the then new Electoral Commission published a report on election timetables in June 2003 and again in 2007; that year, weekend voting was again floated as part of the Government’s Governance of Britain Green Paper; and a separate consultation paper was then published specifically on this issue in 2008. That was supposed to feed into a citizens’ summit, which would recommend whether or not to go ahead with weekend voting later in 2008. That summit never happened. We have never had a proper debate in Parliament to determine the issue.

The principle of weekend voting is simple: more people are at home and free to vote for more of the day at a weekend than they are on a weekday. One possibility is to give people two days over the weekend on which to vote. This would avoid potential problems with religious observance and give people more than twice as much opportunity to participate. Many noble Lords have participated in elections and those who have campaigned will know the frustration of trying to contact voters among the working population of a constituency, in the few hours before the polls close at 10 pm, in order to remind them to vote. They will also have had extensive experience of trudging the streets during the day on polling day and vainly knocking on the doors of people who are out at work. We try to encourage them to vote but know that they cannot.

All those involved in elections know that people who are contacted on polling day and reminded by parties to vote are significantly more likely to vote than those who are not. It stands to reason that if people are contacted during the weekend when they are at home and reminded to vote, they are significantly more likely to participate. All good democrats should agree that increasing participation in elections is a good thing, especially as turnout has declined in many recent elections.

I know that the noble Lord favours different electoral systems and is passionate about increased participation in elections. Does he acknowledge that there is no evidence whatever in this country that changing an electoral system increases participation? In fact, we know that the various election systems that he supports lead to far more spoilt ballot papers, which, surely, is a further illustration of weakening participation in elections.

My Lords, I anticipated that it would not be long before the noble Lord, Lord Grocott, found an opportunity to digress from the issue of participation in elections at weekends and encouraging people to participate. It is a source of regret to me, if not to many others, that the debate the noble Lord proposed to have about the relative turnout resulting from different electoral systems was not held in this House. Of course, he tends to compare declining turnout in European elections with declining turnout in general elections. The truth is that turnout is declining in many levels of elections, particularly in European elections. People may see the European Parliament as even more remote and they make a protest by spoiling their ballot paper. We have to recognise that. But if the noble Lord wishes to study the evidence on this properly and looks at the preference vote using the 1,2,3 system, he will see that in the Scottish local elections in 2007, notwithstanding the fact that there were other elections for the Scottish Parliament on the same day which used a different proportional system, there were very few spoilt ballot papers.

The principle of weekend voting deserves serious and considered debate. It is most unfortunate that the Bill as it stands enshrines Thursday as the day on which general elections should be held, even though that is an accidental precedent. It is not widely known that there is no statutory basis at present for polling day to be on a Thursday; indeed, many council by-elections are held on a Wednesday or a Tuesday when, for some good reason, they cannot be held on a Thursday.

We should think about voting on a Saturday or a Sunday or a Saturday and a Sunday. Our amendments provide the Government with what some noble Lords will now understand as being a Lord Rooker-type famous lifeboat. They do not actually say that things should change; they merely invite the Government to consider the possibility of a change on the assumption that there could be proper consultation, perhaps piloting and serious debate, and then the decision can be made at a later point. We can look at the arguments and consider them properly but because, as I said earlier, the issue has simply been allowed to drift so often, our amendments set a deadline for determination of the issue. That deadline is, sensibly, 1 October 2013, which coincides with the deadline for the publication of reports by the Boundary Commissions.

I hope very much, therefore, that the Government will keep an open mind on weekend voting. If there is a clear promise that we will consider this issue properly in due course and that Parliament will be allowed to decide whether voting should in some form be taking place at weekends rather than on a Thursday, I will not seek to press my amendments. But if there is no such indication, I would, at the very least, not want to see the Bill pass with people thinking that Thursday 7 May 2015 is already fixed in stone as polling day for the next general election.

Before the noble Lord sits down, does he accept that to mandate Saturday as the exclusive day for voting would effectively disfranchise Orthodox Jews? There may also be difficulties about observant members of the Christian community who would not wish to vote on a Sunday. Therefore, does the noble Lord accept that if there is to be weekend voting, it would have to be over the whole of the weekend?

The noble Lord, Lord Pannick, makes a very good point, which I made when we discussed the issue in general without being able to decide the precise terms. I have always thought that weekends are probably better for voting than weekdays. I accept that it would be a problem in principle if some people felt that either Saturday or Sunday was an objectionable day when it came to them going out to vote. It would be rather good to say that a Saturday or a Sunday could be polling day—that is, two days. However, the hours could be more limited, as I do not think that polling would need to last from 7 am until 10 pm. I think that this should be the subject of proper debate and scrutiny. It may be that polling hours of 9 am to 6 pm will be very suitable on a Saturday and Sunday. The only objection to this that has been raised in the past is rather absurd and it has come from the electoral administrators. They said that there would be problems with security at the ballot boxes over a Saturday night into a Sunday. However, in the European elections we vote on a Thursday. The ballot boxes are sealed on the Thursday night and counted on the Sunday evening. Therefore, I do not believe that that is a significant problem. Indeed, I believe that many people who work in the electoral administration process would welcome the opportunity to work on a Saturday or a Sunday.

My Lords, I do not know but I would not be at all surprised if it turned out that people much preferred to vote on a weekday, possibly taking a bit of time off work or arriving later for work, than have their football or whatever interfered with on a Saturday or a Sunday.

My Lords, few football matches last for nine hours on a Saturday and nine hours on a Sunday. I think that there would be plenty of opportunity to vote over a weekend. Some people may be in the privileged position of being able to take time off work on polling day but I do not think that many employers would take kindly to people saying, “I’d rather go and vote than work for you”. I think that that is why so few people among the working-age population vote and why a disproportionate number of retired people vote in elections compared with those of a working age.

My Lords, the noble Lords, Lord Howarth and Lord Rennard, have performed a very real service to the Committee in enabling us to debate this issue. When the noble Lord, Lord Howarth, referred to the Electoral Commission and those dreadful words “modernisation” and “strategy”, I began to have my doubts but, seriously, it is important that we look at this issue. The noble Lord, Lord Pannick, raised an extremely important point when he talked about Orthodox Jews and many Christians.

I also think that there is a great deal to be said for having “a” polling day. I have always felt that having one day for elections and encouraging people to go to the polls is what it is all about. That is why I have viewed with a degree of concern, as well as scepticism, the increase in the incidence of postal votes. I referred to this briefly in my intervention during the noble Lord’s speech. Of course, it is right that people who are incapacitated in any way or whose jobs regularly take them away from home should have postal votes. I was also very much in favour of people who had booked a holiday being allowed to have a postal vote.

I fought every general election from 1964 to 2005— 12 in all, in 10 of which I am glad to say I was successful. I campaigned in many other elections beginning in 1959. Therefore, I think that I have some experience. I remember vividly the election on 28 February 1974, to which the noble Lord, Lord Howarth, referred, when almost 80 per cent of the electorate went to the polls. People were exceptionally concerned about the gravity of the economic crisis. Many of them felt, as I did, that Edward Heath had abdicated in asking “Who governs the country?”. The answer of course is that the Government govern the country and it is the Prime Minister’s job to lead that Government. I felt—and said at the time—that he was wrong to go to the country. Indeed, he discovered that that was not the best decision of his life.

However, people turned out. I think that people will turn out as long as there is a proper incentive for them to do so and as long as it is not made too easy. That may sound paradoxical, but I think that the introduction of postal votes on demand, which in effect is what exists at the moment, does not encourage people or focus their minds or attention on a specific day.

Since we had our earlier exchange on this subject, I have been reminded that participation is actually higher among people with postal votes. It is over 70 per cent at general elections and not much lower at local elections. That suggests that the ease with which people can have a postal vote and thereby cast their vote is not quite as debilitating as the noble Lord fears.

I obviously listened carefully to what the noble Lord said, but there have been some disturbing accounts of the way in which postal voting has been conducted, and he knows that as well as I do. The security of the postal vote does not begin to compare with the security of the personally cast ballot. I am glad to see him nodding assent at that.

When it comes to the day, for the reasons that I indicated earlier, I have great sympathy with the noble Lord, Lord Pannick, and I see no need to depart from Thursday. It is good that we should discuss it and maybe consider experiments with more local elections. I would not be averse to that. However, I believe that Thursday is tried and tested for general elections, and I hope that the Government will stick to that, certainly for the foreseeable future as foreseen in the Bill. I very much hope that they will consider the issue of postal votes and how postal voting is conducted and made more secure. It is important for the House to look at this and for another place to have another chance to look at it. Obviously, it would be quite wrong to press any of the amendments to a Division today, but I hope the Minister will be able to tell us that the Government have taken on board the points that have been made and will truly reflect on them.

I hope that the Committee will forgive me if I speak from the opposition Front Bench at this stage. I am not for a moment trying to shorten the debate. It is a very important subject and the noble Lord, Lord Rennard, among others, has waited for years for a proper debate on this topic. The last thing I want to do is to stop that debate. The Minister knows, and I have told the Committee, that I have some personal difficulties that require me to leave in fairly short order. I hope that the Committee will forgive me if on this occasion I put the view of the opposition Front Bench very briefly and then leave. Of course the opposition Front Bench will be filled very adequately in my absence.

I say briefly that the Committee should be very grateful for the two opening speeches in this debate—the introduction from my noble friend Lord Howarth and the comments of the noble Lord, Lord Rennard, about weekend voting. At the very least it is necessary for the Government to think very carefully about the advantages—and the disadvantages, which the noble Lords, Lord Cormack and Lord Pannick, have hinted at—of changing from Thursday voting to weekend voting. It is an issue that ought to have been debated in Parliament a long time ago; I agree with the noble Lord, Lord Rennard, exactly about that. It was particularly interesting, sitting where we sit, to hear the language used by the noble Lord, Lord Rennard, in the sense that he was looking not just for a debate that would end in a few fine words but for some kind of decision on this issue. If I heard him right, he thought that this was the appropriate Bill for such an issue to be finally resolved under. Am I wrong about that?

For clarification, I was not necessarily suggesting that this Bill should determine the issue but that, if we were assured that it would not close this issue and that we would properly and seriously consider the issue in Parliament in due time before 2015, I would not necessarily want to press the amendments at this stage.

I understand what the noble Lord has said. He mentioned the magic date of 1 October 2013. My advice to him, if I dare give advice to someone so expert in this field, would be just to beware the words that you hear from the Government when they have had time to consider this issue, even though they will be honeyed by the tones that the noble and learned Lord, Lord Wallace of Tankerness, will undoubtedly use both today and when the matter is raised again on Report. The noble Lord will be promised the earth but I am not sure that there will be any delivery within the timescale that he is looking for.

It seems to us an attractive idea in principle that we should consider very carefully whether weekend voting is more appropriate and will lead to greater turnout. I do not think that we should assume that it necessarily will. There are people who would not dream of voting at weekends who will vote on a weekday, but I think that more people will be more tempted to vote if they are given a period, such as some part of Saturday and some part of Sunday, to do so. This is a very important issue not just for turnout but for other issues around British elections. The Opposition wish these amendments well. We hope that the debate continues, and we look forward to playing a full part in it.

I am very glad that the noble Lord, Lord Bach, preceded me because it gives me an opportunity to congratulate yet another sinner on repenting when I hear from him the admission that Ministers occasionally give us honeyed words and assure us that action will be taken when, in the 13 years in which he had a very responsible role in government, there was very little action even in discussing this issue, let alone consulting on it.

I shall make two or three quick points in support of the amendments that my noble friend Lord Marks and I have tabled. First, I recall very well indeed the night of 28 February 1974. In an enormous, scattered rural constituency with snow threatened, pouring rain much of the time and a lot of wind on Bodmin moor, we managed a turnout of 83 per cent, but that was in extremely difficult circumstances. This is true of many rural consistencies in which there are big distances to travel from the place of work to get to vote. There are very difficult circumstances in many villages when the only place where you can have a polling station is the village school, so it is closed for the day. That practical point has not yet come up in the debate. It may be true in urban areas too, but I do not have the same experience. There are practical problems about the insistence on Thursday as polling day that we should address.

The other point that I shall address very briefly was raised by the noble Lord, Lord Pannick, and supported by my noble friend Lord Cormack. I am a practising member of the Church of England, by which I mean that I am never going to be perfect but am practising all the time. I recognise that there are people in all the churches who would find it difficult if Sunday were the only day. That is why our amendments specifically refer to the possibility of two days. Of course, it is also true that Saturday is a day for other faiths, as indeed is Friday.

I am chair of the Faith and Civil Society Unit at Goldsmiths College, so I take a particular interest in the way in which we are now a multifaith community. We should recognise that in the way in which we address this issue. That is why I am very strongly of the view, as my noble friend Lord Rennard said, that it would be preferable to have the choice of two days, but they should be shorter days. I also recall that on 28 February 1974 one presiding officer was so exhausted by the end of the day that he did not properly perforate the ballot papers. Since I ended up with a majority of nine after six recounts, I think that the long day is another factor that we should take into account, and a shorter working day but on both days seems to be something that we should look at very carefully.

I have some sympathy with the point made by the noble Lord, Lord Cormack, about the insistence on moving towards more and more absent voting, both proxy voting and postal voting. On balance, it is preferable to try to extend voting in person and to make that as easy as we can, not just for reasons of potential corruption and fraud but because it is part of one’s civil responsibility to come together as a community to vote. I hope that is true.

The noble Lord, Lord Howarth, referred to the briefing by the Electoral Commission, and I should say en passant that I am a member of the informal advisory group of politicians of all parties who give guidance to the commission every so often. Its summary is in effect that at this stage it would be premature to insist on moving towards weekend voting, which is really why my noble friends and I have put it not in a prescriptive way but in an advisory way that we should be moving in that direction. It is disappointing that although there have been pilots for so many other aspects of improving access to the voting process, there has been so little attention to or consultation on this issue. Incidentally, I endorse the point made by the commission about the number of advantages in advance voting. This is not an either/or. They are both quite useful ways in which we could get more people to go to the poll to cast their votes.

There is an interesting opportunity here. I hope that my noble friend the Minister will at least be able to indicate that he will not adopt the attitude of the previous Government, which was personalised, illustrated and characterised by the noble Lord, Lord Bach, in his honeyed words but with mighty little action. Before we get to the definitive moment to which my noble friend referred when we will know the shape of the new constituencies in October 2013, I hope that more work will have been done to consult all interested parties and to conduct pilot schemes to see whether a two-day weekend polling period with shorter hours each day would not suit our fellow citizens much better than plumping again for a Thursday, which is so inconvenient for so many and causes so much disruption.

My Lords, I echo what my noble friend Lord Howarth has said about how much better debates on major constitutional reform are when we get contributions from all parts of the House, which has characterised the debate on this amendment. I welcome the fact that we have had the opportunity to discuss this amendment even though I have real anxieties about it. Perhaps it is a sign of a simple mind, but one of the tests I put to constitutions is the extent to which they are straightforward, intelligible and as simple as possible, which is one of the many reasons why I am so strongly in favour of first past the post.

While I do not doubt for a minute the good intentions of people who think that we should have a couple of days to vote, there would be a problem. It would just extend the development, which has undoubtedly occurred in most of our lifetimes—I do not want to be rude in characterising it in this way—towards a kind of rolling election as opposed to an election day when the nation makes a decision. In part, a rolling election is very much as the noble Lord, Lord Cormack, has said. I know that under a Labour Government there was substantial development of postal voting. In effect, we have at least two election days, if not a longer period. There is the crucial day when the postal ballots go out and people react to that. Then there are the days between the postal ballots and the election day when more ballots come in, which makes it a kind of rolling election.

I feel a certain nervousness about extending the election over two days. At least it might mean that a lot of the drama will undoubtedly be removed from election day. Perhaps I am wishing for days that have passed to think that that drama can ever come back. The February 1974 election was certainly profoundly dramatic for me because it was one of the many elections that I managed to lose and there were several recounts into the middle of the night. We were pretty tired over that period, but that is part of the drama of an election night.

What would happen between the two polling days? Perhaps we would all sit in limbo. Again, I am trying to avoid crudely partisan points, but occasionally I cannot manage that. A rolling election period would be made worse by more complicated election systems. I genuinely respect the noble Lord, Lord Rennard, who has participated throughout. If the AV vote is passed, it will inevitably mean that counting will occur on the day after. It is inconceivable that an AV vote could be counted through the night of an election day.

One of the attractions of voting on a Saturday and a Sunday, between the hours of, say, 9 am and 6 pm, would be that the counts would begin at 6 pm on Sunday. Before the last general election, there was great controversy in the other place about when counts might take place and great concern that many of them would take place on the Friday rather than the Thursday. The Electoral Commission was greatly concerned about the accuracy of the counting by people who had been involved in the process from setting up the polling stations for 7 am to finishing at 10 pm and then counting the vote sometimes through to 4 am or 6 am on the next morning. It seems much more sensible for voting to take place during normal hours on a Saturday and Sunday and for votes to be counted on a Sunday evening. The noble Lord says that he personally did not like the February 1974 election results. I wonder whether he would prefer the system of 100 years earlier when a general election took place on different days in different constituencies all over the country.

That rather proves my point. I like the simplicity of polling day being polling day. We all know the beginning and the end, that the election programme will be on the BBC and that we will get an instant polling verdict on “News at Ten”. Are these bad things? I believe they increase the drama of an election and you need some drama in politics. It cannot be reduced to a dull procedural convenience. I do not doubt for a moment, as I have said, the motives of people who wanted more postal votes. There were many in my party who did and my Government facilitated it. It was done with good intentions but the outcome of what I can only describe as a rolling election has not been a good one. Likewise, I do not think the idea of having more than one polling day would be a good one. The noble Lord, Lord Rennard, says it makes people very tired so that they cannot cope and might make mistakes. However, our elections are amazingly free of challenges once the results have been declared. I have lost some elections and won one after a recount but people accept the results and rarely contest them.

My final concern is that, if elections are to result in more hung Parliaments—I doubt that they would under the first past the post system, as some claim, but they certainly would under a more proportional electoral system—the period between people first starting to think about an election and casting their postal vote will be prolonged and the country could reach a verdict weeks afterwards. So I recognise the motives behind these proposals but it is easy to have good intentions but bad outcomes. We have elections relatively rarely, and we will have them even more rarely if the Government have their way with this Bill. They ought to be dramatic days and I fear that these amendments would make them less dramatic and certainly less decisive.

My Lords, it is more or less fatal for me to come into the House because somebody always presses a button that leads me to get to my feet. In this case, it is all this nostalgia about February 1974, which is the date on which I was first elected. My memory of it is that it took a very long time because Braintree did not count during the night; it only counted the following day. After a nervous, sleepless night, I came in with a relatively small majority at about the same time as the Western Isles.

I have a lot of sympathy with the points made by the noble Lord, Lord Pannick. I would not support these amendments if they were pushed, but consideration of change should not be ruled out. I make three points in support of that. First, on the point made by the noble Lord, Lord Cormack, most of the criticisms of abuse or problems connected with postal votes seem to relate at least as much to people who have had them for years as to new postal voters. Secondly, like many people here, I live in London during the week and at my home in Essex during the weekends, so I now have a permanent postal vote for everything except parliamentary elections, which I cannot vote in anyway, because I never know where I am going to be.

The third point picks up that made by the noble Lord, Lord Howarth, about the greater use of postal votes and non-postal votes—if I may oversimplify what he said. A key strategic problem is the decline during the past 20 or 30 years in the number of people who vote at all. During most of my time in the other place, the turnout was never less than 75 per cent. It was several times more than 80 per cent, and I had villages in my constituency where the vote went over 90 per cent. In the previous two elections, we have been down to percentages which we used to associate with American elections—between 60 and 70 per cent. Therefore, the key problem here is getting the vote up. We should be willing to consider anything which could be shown to contribute to that.

My Lords, I was an election agent for some 15 years, so I do not think that there is very much that I have not seen. I have dealt with four elections—parish, county, district and general elections—all on the same day and all over a big area, and have learnt much through practice. Does the amendment refer just to a general election? Will all other elections follow suit? If we have a general election at a weekend, is it being proposed that county and parish elections take place then as well? Or will they be on a different day?

My Lords, the noble Lord, Lord Rennard, in answer to my intervention, accepted that if there is to be weekend voting it would need to be over the whole two days of the weekend, albeit during shorter periods on each day. There are difficulties about that, not just the loss of drama to which the noble Lord, Lord Grocott, referred. The difficulties arise from the fact that one day of voting involves all the electorate, with the exception of those who are postal voters, voting on the same factual premise. It is a snapshot of opinion at a particular time. Broadcasters are prevented from broadcasting any material during that day which would be politically partisan. That is entirely acceptable and workable. All that becomes much more difficult if the period of voting extends over two days. What happens if an event of considerable political significance—it may be a foreign policy issue or a terrorist attack—occurs during the first day of polling? The danger is that one can envisage circumstances in which the electorate who vote on the second day would be voting on a set of facts that would be materially different from those on which the electorate voted on the first day.

The noble Lord refers to certain instances, including a terrorist attack. Such an event could occur in the middle of polling day, in which case there would be a completely different mood among those who had voted early and the very large number of people who vote going home from work. I do not think that even a single day of voting avoids that risk.

The noble Lord is of course correct, but it is much less likely that the electorate who vote during a single day will be aware of or affected by a major news event during that day than if the event occurs during that day and there is second day of voting. This seems to be at the very least a factor that should be taken into account if consideration is being given to two days of voting.

My Lords, I thank the noble Lord, Lord Howarth, and my noble friend Lord Rennard for introducing these amendments. I say in respect not just of the amendment of the noble Lord, Lord Howarth, but of a series of amendments as we go through the Bill that it is important that there will proper scrutiny. The amendments that have been tabled already indicate that although the Bill is relatively short it is important, and that most if not all its key components will be addressed. We look forward to those debates.

I think that there is a consensus across the Chamber, as I think there was on a number of occasions—although it was sometimes difficult to believe it—during the passage of the Parliamentary Voting System and Constituencies Bill, that it is important that we try to look at ways in which we can increase turnout and participation in elections. No matter which party we belong to, or even if we belong to none at all, I think that we recognise the importance of trying to increase turnout.

It is probably fair to say—no doubt those opposite will correct me if I am wrong, because they were in government and responsible for introducing them—that the greater availability of postal votes is more a response to decreasing turnouts than a contributory factor as my noble friend Lord Cormack suggested. It is also fair to raise concerns, as has been done, about the security of postal voting, but it should be recorded that measures have been introduced during the past couple of years to ensure that postal votes are properly verified. Some of the debate which has taken place in recent days and weeks about the timing of the counts for the Scottish Parliamentary and Welsh Assembly elections in May has been coloured by the fact that returning officers are now very conscious of the time that will quite properly be taken in verifying postal votes.

My noble friend Lord Rennard indicated that this issue has never been properly debated in Parliament; I hope that he feels that it has had a reasonable airing today. It is clear from the contributions that have been made that there are arguments both for and against moving the polling day from the traditional Thursday to another day and, as the amendments would foreshadow, to weekends. There has been debate, too, on the cases for and against the holding of elections on more than one day. The noble Lord, Lord Pannick, said that if one was to have polling day on a Saturday it would raise religious issues for some faiths. Equally, I can think of places, not least in my native Scotland, where if voting was only on a Sunday there would be difficulties. That led noble Lords to consider the possibility of voting over two days. The noble Lord, Lord Pannick, indicated some of the practical issues to which that would give rise. I do not think for a moment that they are insuperable, but they would certainly have to be addressed if we were to hold elections on more than one day.

A number of issues have been raised. The previous Government instigated a significant test of opinion, by way of a consultation held in 2008, on the very subject of moving elections to weekends. The consultation sought views from a range of groups on whether elections should be moved from the traditional Thursday to one or both days of the weekend and whether this would improve access and opportunity for voting. There were diverging views on this issue. While it is fair to say that there was a balance of opinion in favour among members of public who responded to the consultation, the majority of respondents did not favour a move to weekend voting.

It is not obvious from that survey, which was published in March of last year, that such a move would make it easier for electors to vote. As the noble Lord, Lord Howarth, pointed out, there is nothing in statute that says that polling day should be a Thursday. I am sufficiently old, and enough of a political anorak, to remember a lot of local elections taking place on every day of the week. I think that I am correct in recalling during one of our debates on the Parliamentary Voting System and Constituencies Bill someone on the opposition Benches saying that they were once a candidate, or an agent, in a local election that had taken place on Saturday.

In the Local Government Bill in 1998, we made provision for significant pilots to take place on this and on different ways of increasing participation. It may be useful to the Minister and others interested in this amendment to look at some of those. The first organisation to do this in depth was Watford Council, which led to the Liberals taking over—so I was not too popular.

The noble Baroness is encouraging me to look at these pilots. However, I seem to recall that voting took place on a number of days. In Scotland, local elections were for many years on a Tuesday. For some reason, they all seem to have coalesced round a Thursday. Picking up the point of the noble Lady, Lady Saltoun of Abernethy, I recall that in 1978 the Hamilton parliamentary by-election took place on Wednesday because Scotland’s first match in the 1978 World Cup finals was being played on the Thursday. I am not sure what it did for the noble Lord, Lord Robertson of Port Ellen, but it did not do much for the Scottish football team.

There is a consensus on the need to find ways in which we can increase the turnout, which undoubtedly ensures that those elected to the other place have a stronger democratic mandate.

The noble Lord, Lord Howarth, referred to the briefing of the Electoral Commission, which echoed what the Electoral Commission said in the consultation undertaken by the previous Government. The Electoral Commission stated that it was,

“not opposed to weekend voting in principle, but that no change should be considered without clear evidence that it would be of significant benefit to the voter”.

That view was shared by the Committee on Standards in Public Life, which in its response to that consultation said,

“The Committee is not opposed in principle to moving the day of elections from Thursday to the weekend. But we have seen no evidence that such a move would bring any clear benefits … It is not obvious that [people] would find it easier to vote at the weekend”.

One might say in the Scottish context that this is a not proven verdict, but that does not mean to say that there should not be trials. With regard to advance voting, which the noble Lord, Lord Howarth, mentioned, that was referred to in the consultation paper on The Governance of Britain published by the previous Government. It pointed out in that consultation that, as part of the previous Government’s programme for piloting innovative voting methods, 20 local authorities had piloted advanced voting in polling stations since the year 2000. Evidence from these pilots, however, indicated that the availability of advanced voting had done little to increase turnout.

There are a number of issues and I recognise that this is inevitably an issue to which your Lordships’ House will wish to return. I hope this is not honeyed in any way and I am not standing at the Dispatch Box to say that the Government are about to launch an initiative with regard to weekend voting. However, picking up the point made by my noble friend Lord Newton, I want to make clear that we are not ruling it out. I want to reassure the House that not including something in this Bill will not rule out the possibility of us returning to this issue.

I do not believe—this is an important point—that this is the appropriate legislative vehicle to make the change. In this Bill, we have tried to do only that which is strictly necessary to establish fixed-term Parliaments and, as far as possible, reflect existing practice. It has become common practice to hold the elections on the first Thursday in May. Three of the last four were held on that day, the exception being in 2001 when the need to move it was widely agreed due to the outbreak of foot and mouth.

The noble Baroness, Lady Golding, also indicated that one of the issues that had to be looked at is that, if we are moving the date of parliamentary elections to the other place, should we also look at the local elections and, for that matter, the elections to the devolved Parliaments and Assemblies.

It is not a criticism of the drafting because I think the point of these amendments was to raise an important issue, but there are a number of consequential issues which would flow in terms of any change that was to be made. In the light of that, I want to reassure my noble friend that if this Bill goes through without amendments, that will not be used at a future date as evidence of Parliament agreeing that it will be that day. That was the assurance he was looking for. It will not be thrown back at him like that. I hope that in those circumstances, the noble Lord will agree to withdraw his amendment.

My Lords, this has been a lively debate with contributions from noble Lords all around the House speaking from their extensive experience and their serious concern that we should find the best ways we can to improve participation at general elections. As my noble friend Lady Golding reminded us, it is equally important that we raise participation in other elections, notably local elections, although that is outside the scope of the Bill’s Long Title.

I am most grateful for what the noble Lords, Lord Rennard and Lord Tyler, had to say. The noble Lord, Lord Rennard, speaks with even greater knowledge than the noble Lord, Lord Tyler, though it could be a close-run thing. Both of them made invaluable contributions, the noble Lord, Lord Rennard, rehearsing with us the somewhat dispiriting history of consideration of this issue—the unsatisfactory pilot scheme and the citizen summit that never took place. The noble Lord, Lord Tyler, made the extremely important point that our traditional practice of holding elections on a Thursday means that schools all over the country closed. That is undesirable.

On the other hand, the noble Lord, Lord Pannick, put his finger unerringly on two real difficulties. One is not necessarily an insuperable difficulty because he rightly reminded us that there are different religious traditions in this country and you cannot decently or appropriately legislate for polling to take place on one particular day of the weekend. He then went on to make a point that I take seriously: that it is desirable that as far as possible people should cast their votes on the basis of the same information and that, if some dramatic event were to intervene, that could have the effect of altering the tendency of polling on the second day. We would need to think carefully about that.

That serves to illustrate that there are significant arguments on both sides. I rarely disagree with my noble friend Lord Grocott on anything—he was my Chief Whip, after all—and particularly in the constitutional field but I am not sure there is not a hairline crack between our two personal positions on this particular issue. But he and the noble Lord, Lord Cormack, rightly appeal to our sense of tradition and history. What my noble friend Lord Grocott had to say about the importance of the drama of election day and what the noble Lord, Lord Cormack, had to say about the ceremony of election day were very important observations. We do not want in any way to diminish the occasion of polling, which, as the noble Lord, Lord Cormack, suggested, has perhaps been somewhat diminished by the increasing resort to postal voting. If postal voting has raised turnout overall, however, that is an important merit in it.

The noble and learned Lord, Lord Wallace of Tankerness, responded in as positive a spirit as he could but it remains the case that the Government, while they may have reviewed previous consultation, have not applied themselves to this question with any seriousness at all in advance of including prescriptive provisions in this fixed-term Parliaments legislation that polling will take place on a Thursday. The noble and learned Lord himself reminded us that at the moment there is nothing in the law that requires polling to be held on a Thursday.

If there is a major national crisis, as in Scotland, and the Hamilton by-election has to be moved from a Thursday to a Wednesday because of a football match, there is at least the freedom to do that. But this legislation would remove that freedom. The noble and learned Lord says that the Government are not ruling out a change, but by stating in this Bill their intention to legislate, they make it that much less likely that there will be a change. I had hoped that the Minister would have been able to tell us rather more definitely what the Government intend to do. We may or may not agree with his point, but he said that this may not be the right legislation in which to incorporate provision for polling to take place on a weekend rather than on a Thursday. He suggested it has to be considered on a separate track. I heard no convincing evidence from him that he intends to pursue that track.

While the feeling of the House is that it would be inappropriate to vote on this issue today, Amendment 16 tabled by Members of the Liberal Democrats, which would require the Prime Minister and the Government to have made up their minds about what they want to do by October 2013, has enormous merit. For my part, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

As we come to Amendment 3, I remind your Lordships that if it should be agreed to I cannot call Amendments 4 to 8 for reasons of pre-emption.

Amendment 3

Moved by

3: Clause 1, page 1, line 5, leave out “is to be 7 May 2015” and insert “will be determined by a referendum to choose between 6 May 2014 and 7 May 2015”

My Lords, I start by apologising to the Committee because my amendment includes the dreaded word “referendum”. I can understand why everyone else's heart sinks just as much as mine does at the very mention of that word. I tabled this amendment alongside my noble friend Lord Howarth, who has amendments along similar lines in this group—and they may well be better than mine—because I want to raise two or three issues. It is important that we correct an error that has been uttered on a number of occasions by no less a person than the Deputy Prime Minister. It is an error to say that this Bill removes the right of the Prime Minister to determine the date of the election. At Second Reading in the House of Commons on 13 September last year, the Deputy Prime Minister said:

“We have a Prime Minister who is the first in history to relinquish the right to set the date of the general election”.—[Official Report, Commons, 13/9/10; col. 622.]

What he should have said is, “This is the first Prime Minister to relinquish the right on behalf of future Prime Ministers to determine the date of the next general election”. Not only has this Prime Minister decided the date of the next general election, he has legislated to enshrine in law his choice of date. I hope from now on no one will use that as a justification for this Bill, which, as the House may know, is not a Bill that finds much favour with me. Can we at least correct that error? As I shall say later on, the Prime Minister is uniquely legislating to enshrine his favoured date in law, so people need to have a say about that, which is what we do in a referendum.

My second reason for tabling this amendment was to seek clarification from the Government on when and why they use referendums as a basis for constitutional change. The Committee is entitled to an answer to that question. The Deputy Prime Minister has said many times that these are hugely important constitutional changes. As far as I know so far, and we may still be counting, four major constitutional changes will be decided in this Parliament. We have already determined two, which are quite separate issues. The first was that there should be a referendum on AV and the second was that there should be fewer Members of Parliament. There is a referendum on one of those but not on the other. The one that we are debating now is to fix the terms of Parliaments, which is an important issue on which the present thinking from the Government is that there should be no referendum. The one coming down the line, which may take a bit of time in this House, is to abolish the House in its present form and replace it with senators.

I would simply like the noble and learned Lord, Lord Wallace, who always treats these questions with great seriousness, to tell us why there is a referendum for one of those four major changes but not the other three. What factors have the Government brought to bear in determining which will be decided by referendums? Although I need some persuading of this, we have been told quite frequently by the Government that this is a coherent whole of constitutional change.

The answer is simple: the Government knew that they could not get AV through the House of Commons. Therefore, they have gone to a wider electorate.

As the leader of the Labour Party has been discouraging the Deputy Prime Minister from taking any part in the AV campaign, it will be interesting to see the outcome.

I am interested but also worried because I care deeply about the outcome of the referendum and the damage that I believe can be done to our constitution. But we must not go back over that. It has been concluded and now it is for the people to decide.

I do not favour any of these changes, but if they are to go ahead the public need to be consulted. A referendum should be considered to determine whether there should be a four or five-year fixed term because of what I hope the Committee will agree is a powerful point: that the Bill reduces the power of the electorate. It reduces the number of occasions on which the electorate can be consulted.

If you reduce the power of the electorate, which the Bill undoubtedly does, then surely the electorate have the right to be consulted about that. It was right in 1975 for the then Labour Government to have a referendum on the Common Market, as it was then called, because it reduced the power of this Parliament. By the way, I voted no in that one. It is right that the choice should be given to the public. It is unarguable that the Bill reduces that power.

Does the noble Lord believe in the opposite proposition—that to give power to the electorate you should not have a referendum? That might affect some of his earlier arguments about reform of this House.

I do not know which of the various constitutional proposals increases the power of the electorate. The noble Lord referred to reform of this House. One of the key reasons why I am opposed to this being an elected House is that it would seriously diminish the significance of a general election to the House of Commons. I hope that my argument is consistent; I will have to read it in Hansard tomorrow.

I hope that I can put this with some conviction but, according to my maths, since the 1945 election there have been 17 general elections in this country. If this Bill had been an Act, we would have had 13 general elections. I simply put this proposition: does that or does that not weaken the power of the electorate? There can be only one answer to that. The answer is yes.

I do not want to go to absurd lengths but we can all assume that, if there were no elections, that would seriously weaken the power of the electorate. I am not sure about the other end of that continuum—perhaps the Chartists with their annual elections. But there is no doubt that the convinced and settled view of the members of the Government who are voting on this Bill is that since the Second World War the British electorate have had too many general elections. Which ones should we not have had that we did have? Was it wrong in 1951 for a Labour Government who were tired to seek another mandate? Was it wrong of Mr Heath? Was it wrong of Harold Wilson, who had a majority of three in 1964, to call another election, or should he have soldiered on for another five years? Should Harold Wilson's Government in 1974 have gone on without a majority?

I would like to know the answer to a fairly simple question: why do the Government think that we have had too many general elections since the Second World War? Which ones were superfluous? There could be an interesting answer to that.

My Lords, between now and the next stage of this Bill I wonder if my noble friend could ponder whether, as has been proposed, the reason that AV is going to a referendum is because it could not be got through the House of Commons. Does that mean that we must have a referendum on Lords reform if it proves impossible to get it through your Lordships’ House?

What a persuasive argument—I am completely convinced by that.

If the Government are going to reduce the power of the voters over their Government, they must give us a very convincing argument as to why that is desirable. Of course, I very much hope that my amendment becomes entirely surplus to requirements, because I very much hope that the Committee will decide later that we should have four-year gaps between Parliaments. I do not agree with fixed terms, but if there is to be one I hope it is four years. For the first time in my life I am operating entirely in accordance with the Liberal Democrats’ manifesto and I hope they will be voting with us on four-year Parliaments. However, if the Government unilaterally reduce the power of the electorate to have general elections and to make their decisions about Governments, I hope that they will only take this power away on the authority of the electorate in a referendum.

My Lords, I am very happy to support the spirit of my noble friend Lord Grocott’s amendment. I have tabled two amendments—Amendments 57 and 58—which also require that a referendum should take place before we move to fixed-term Parliaments in this country.

I do not, in general, favour referendums, but there is a particular case for holding them when major constitutional change is being proposed. I think that is a view that the Constitution Committee reluctantly came to. The basis of that has to be that the constitution belongs to the people—it is not the property of those politicians who happen for the time being to have the privilege of serving in either the House of Commons or the House of Lords. Those who are Members of Parliament in either House, and certainly those who are in Government, should regard themselves as holding the constitution in trust on behalf of the people, by whose authority they have been given and entrusted with the opportunity to serve. They should treat that constitution with the very greatest respect and should move to change it with the very greatest caution. That applies even more particularly to a Government such as this present coalition Government, which does not have a mandate from the electorate for its policies.

It is, as my noble friend Lord Grocott suggested, curious that this Government—which makes great claim to be a liberalising Government who want to improve the quality of our democracy and increase the accountability of Government, and indeed Parliament, to the people—are proposing legislation that would mean that we would in practice have fewer general elections than we have had in the past. The average interval between general elections since the war has been three years and 10 months; if the Government have their way on this Bill, it will be not less than five years. That is one of the reasons why I, like my noble friend Lord Grocott, believe that—although I am no enthusiast for legislating to fix the term of Parliament—if we are to fix the term, then we had better fix it at four years. We do not want to see accountability diminished in a major measure of constitutional reform.

It is also curious that the Government believe that it is appropriate to hold a referendum on changing the electoral system and that it is appropriate to hold referendums when there may be some transfer of power—possibly no very great transfer of power—between London and Brussels, but they do not think that it is appropriate to hold a referendum on whether we should move to fixed-term Parliaments. My noble friend Lady Farrington raised the question of whether there might be a referendum on reform of the House of Lords, which would be a very major constitutional change by any standard. It seems extraordinary that the Government should propose to take that forward without incorporating provision for a referendum in the legislation.

I am not necessarily a devotee of consistency in constitutional matters, because I believe that there are many anomalies in our present constitutional arrangements, which have grown up for compelling historical reasons, that actually provide flexibility and enable the constitution to accommodate different traditions and to adapt itself as time goes by. If we are slavishly schematic in our approach to constitutional change, we shall be even more likely to get it wrong; but I wonder why the Government are quite so inconsistent in their approach to holding referendums on constitutional reform. Surely the Government should conduct themselves on a certain set of principles.

Turning to the particular amendments that I have tabled, I suggest to the House that they incorporate a better design for a referendum than the design of the one we are to have on 5 May on electoral change—there are differences between what I propose and what Parliament has enacted at the behest of the Government. The referendum that I have proposed would be advisory only and would leave scope for Parliament to meditate upon the message that voting in a referendum sends to Parliament. Amendment 57 would also provide that, if less than a threshold of 51 per cent of the electorate support the introduction of fixed-term Parliaments, then the question would be dismissed. That latter point should have applied also in Amendment 58—it was an omission on my part not to have included that in the drafting of that amendment. If we come back to this issue on Report, I can repair that then.

My amendments would provide for two questions. The first would be to ask the people whether they favour the introduction of fixed-term Parliaments, as provided for in the legislation. The second would ask them the other key question: if we are to have fixed-term Parliaments, do they think it right that the term should be fixed for four years or for five years? We all agree, I think, that this is quite the outstandingly important issue that remains to be resolved in this legislation apart from the overall issue of whether there should be fixed-term Parliaments, which has been approved in Second Reading. However, the question of four or five years remains wide open. I put it to the House that that may also be something that should be offered for the decision—or at least for the advice—of a wider electorate.

My Lords, I am one of those who is largely in favour of referendums for important constitutional reforms. The noble Lord, Lord Grocott, is quite right to ask in what circumstances referendums are appropriate and to say that the matter should be considered by the House.

The Constitution Committee in 2010 used the word “fundamental” in respect of constitutional reforms for which referendums were appropriate. The question arises as to what is meant by fundamental. I accept entirely that a referendum is appropriate in respect of the proposed change in the voting system to AV on the 5 May, as it was appropriate for the European referendum in 1975, which noble Lords will know was the last UK-wide referendum—I am not suggesting that such referendums should take place only every 36 years, or anything like it. However, it is significant that the same Constitution Committee report produced a list—not an exhaustive one—of the type of issue that might be appropriate, in which it included any decision:

“To abolish the Monarchy;

To leave the European Union;

For any of the nations of the UK to secede from the Union;

To abolish either House of Parliament;

To change the electoral system for the House of Commons;

To adopt a written constitution; and

To change the UK’s system of currency”.

The report made clear that that was not intended to be a definitive list.

Does the noble Lord agree that this Bill marks a very significant step towards the creation of a written constitution in this country?

My Lords, I do not accept that. It might indeed be desirable to have a written constitution, but that is a matter for another day.

I accept that the Bill provides for an important constitutional reform, but it is not a fundamental change to our constitution. I say that for a number of reasons. First, in terms of whether or not a referendum is appropriate, the fixed term proposed is within the existing maximum term of a Parliament. Under the 1911 Act, Parliament can last for up to five years; under this Act a Parliament will last for five years unless either of the trigger mechanisms for an early dissolution is activated.

May I interrupt? Actually, it is a fundamental change. As the Bill is not subject to the 1911 Act, we can veto this Bill because it seeks to extend the life of Parliament. That is a fundamental constitutional change, which in my view should be resisted at all possible costs.

My Lords, the noble Earl is entirely right to say that the Bill is capable of extending a Parliament under the two-month extension proposal. That is the reason why the Parliament Act does not apply. That does indeed give this House the right to veto the legislation, but it is a non sequitur to suggest that it follows from that, and that alone, that this is a fundamental reform of the type to warrant a referendum.

Can the noble Lord, Lord Marks, explain to me, because I listened to the logic he was developing, how changing a system of voting for a Chamber of Parliament, where that Chamber is already elected, is a greater change than introducing a system of voting for a Chamber of Parliament which is not elected at the moment? I raise this as somebody who is in favour of reform—I do not want to be dismissed as somebody who is not—but I find a real fault line in his argument, unless he is about to conclude that he thinks there should be a referendum on Lords reform.

My Lords, the noble Baroness’s logic is seductive and attractive, but it misses the point that, as all noble Lords accept, this House accepts the primacy of the House of Commons. Therefore, a change to the voting system for the House of Commons, which alters the entire electoral system for the House that has democratic primacy, should have different weight accorded to it from that of a change to the composition of the upper House.

My Lords, can I just press the noble Lord further? As I understand it, the noble Lord’s party’s view is that AV is, to a degree, an acceptable alternative to the present system of first past the post. However, I believe quite senior members of his party have said they regard AV as a staging post. If your Lordships’ House were to be elected by a system that was further down the staging-post road, would we not be in a difficulty, using the reasoning of the noble Lord’s own party, given that it is not certain that the democratic legitimacy of the House of Commons —which I accept—would be accepted by a more democratically elected second Chamber?

My Lords, the noble Baroness is perhaps addressing a debate that we are yet to have on another occasion. It is well known that in the past we have favoured, and indeed do favour, other electoral systems. It is also well known that the coalition agreement commits us to a proportional system of representation for the election of Members of this House. However, noble Lords will accept, I hope, that that is a matter for another day and what we are now concerned with—if I can just finish my response to the noble Baroness—is considering an amendment which calls for a referendum on the Fixed-term Parliaments Bill and a separate referendum on the question of four years or five. The future electoral system for this House is of interest and of course of some relevance, but it is not central to this point. I give way to the noble Lord.

I am extremely grateful to the noble Lord, but when he read out the list of issues which could be subject to a referendum he mentioned the abolition of the monarchy and the abolition of either House. Does he not accept that, if your Lordships’ House is replaced by a different second Chamber, wholly elected, it has to be abolished first? Therefore, surely there is no logic at all in saying there should not be a referendum on that issue.

My Lords, I do not accept that. It is not the abolition of a House to change its composition, however attractively the point might be put.

I remind your Lordships’ House that we had a very significant constitutional reform with the Constitutional Reform Act 2005, whereby the highest court in the land, having been constituted by a committee of this House, was replaced when the Supreme Court was established. Nobody then argued that there should be a referendum on that very significant and wide-ranging change in the constitution.

Both the noble Lords, Lord Grocott and Lord Howarth of Newport, addressed the question of four or five years. That is an important point which we are addressing in this Bill and on which there will be a separate debate during this Committee stage, and I would not be at all surprised if either or both of them contributed. However, the point here is not the length of a fixed-term Parliament, which is a matter of judgment and on which many speeches were made at Second Reading, including my own, but whether this is a matter for a referendum.

There are a number of further points. In a lengthy consideration of the Bill by the Constitution Committee —which I might say was not an enthusiastic report endorsing the Bill and the way it had been handled—it was not suggested that this was a matter for a referendum. Had it genuinely been believed at that stage that there were respectable arguments that this was a fundamental issue of a nature that required a referendum, I suggest that it would have been put before the committee and either adopted or rejected.

My recollection is that the Constitution Committee took the view that there should have been pre-legislative scrutiny, which would have led to many of these points being discussed properly, particularly the role and relationship proposed in this Bill between the Prime Minister and the Speaker in another place.

My Lords, the noble Baroness is absolutely right to draw attention to the fact that the Constitution Committee thought that pre-legislative scrutiny would have been a good idea. Nevertheless, the committee heard evidence over a number of days and read a great deal of written evidence from some of the leading academics in the land and nowhere was it suggested that this was a referendum issue in my reading of the evidence of the report. That was the point that I was attempting to make.

The other point of importance that I would invite noble Lords to consider is that the principle of fixed-term Parliaments was subject to manifesto commitments of the Labour Party and my own party and in neither case was there a suggestion that it should be the subject of a referendum rather than legislation. The Conservatives embraced that commitment very shortly after the election, and the Members of Parliament elected as Conservatives to represent their constituents did not seek to interpose a referendum before this legislation should become law.

There is a danger, which I urge the House to bear in mind when it considers these amendments, that we move from a representative democracy, which the vast majority of us value a great deal, to government by plebiscite. If you lose sight of the principle that only fundamental changes require referendums, you move some way down that road.

Did the noble Lord not say in the first part of his remarks that he was very much in favour of referendums? I am not sure how that squares with what he has just said.

I qualified that by saying, “on important matters of constitutional reform”, and I then went on to explain what the Constitution Committee said when they used the term “fundamental”. I stand by that. What I am saying is that, if you extend the number of referendums that you have well outside the ambit of what is fundamental, you move away from representative democracy and towards government by plebiscite. It is a matter for Parliament properly to decide—both the principle and the question of four years or five.

I make one final point about Amendment 57, which the noble Lord, Lord Howarth of Newport, applauded —in spite of the fact that it is his own—and said that he liked its design. He said that the amendment was advisory only. That is entirely wrong since, as drafted, the amendment is a wrecking amendment, as it seeks to impose a mandatory 50 per cent threshold, which means not 50 per cent of those who vote but 50 per cent of the electorate, without which the Bill cannot become law. That is a very high threshold indeed. It means that a turnout of anything less than 50 per cent cannot give effect to the Bill, even if not a single no vote is cast.

It is nowhere near as high a threshold as has been put in this Bill for a dissolution of Parliament.

My Lords, 66 per cent of the House of Commons voting on an occasion when we may expect a turnout of well over 99 per cent is not, in my respectful submission, a very high threshold. The thresholds are different in kind, and my noble friend Lord Cormack knows that perfectly well.

In the recent Welsh referendum we had a turnout of 35 per cent, which was seen as somewhere between respectable and high. Not only do thresholds detract from the view that referendums are valuable, because they involve telling the electorate that we propose to ask for its view and then reserve the right to turn around and reject it after the event, but thresholds of this magnitude, which are mandatory in this way, do nothing for the cause of democracy.

I apologise to your Lordships for intervening at this stage when I was not here for Second Reading, not least because I missed the maiden speech of the noble Lord, Lord Cormack, which I have had the pleasure of reading since then.

The reason why I was not here on St David’s Day when the Second Reading happened was that, thanks to the Commonwealth Parliamentary Association, I was at the New Zealand Parliament, which I had the great pleasure of visiting with the noble Lord, Lord Rennard, although he made it home rather faster than I did. When I was there, I discussed the three-year terms that they have in New Zealand, and how business and elections could best be organised around that period. It is true that many people in New Zealand, politicians and civil servants, consider that four years would be a better period. I have to say that they do not even go to five years; it was not on their agenda at all. The interesting thing from the point of view of this debate is that, despite the fact that many would like to move to a four-year period, they have never dared to test that in a referendum with the electors, because from their sample polls and from listening they know that the move from three to four years would be rejected. That is a lesson for us to learn about extending a Parliament’s life. The Government should perhaps heed that.

There is a broader lesson with this amendment, and that is to note the incredible significance that the legislators in New Zealand attach to their electorate. They would not dare even to ask them to extend their term of office without a referendum. They will not do that until they think they can win it. So we should ask the people their view before we entrench anything new in our law. I would even like to put the option of three years as well as four years and five years in that referendum, but I would certainly favour at least going out to ask people for their opinion to find out what suits them rather than suits the politicians who will be elected in those elections.

My Lords, when I was first elected to the other place, I was a very staunch believer in parliamentary democracy, full stop, and did not like the idea of introducing the referendum into our system. But the fact is that we have done so, and on a number of constitutional issues. We had the referendum on what was then the Common Market, or European Union, in which I participated on a platform with friends and colleagues from the Labour Party, urging a yes vote, while I believe that the noble Lord, Lord Grocott, was doing the opposite. Now of course I find myself in virtually total agreement on almost every subject of a constitutional nature with the noble Lord, and that is a very happy relationship. But it is a bit like the atom bomb or the internet; you may have strong views, but you cannot uninvent things—and you cannot uninvent the importation of the referendum into our constitutional system. And you should not treat it capriciously.

The noble Lord, Lord Marks, uttered his honeyed words. I have not been a Member of your Lordships' House for long, but I have heard the noble Lord’s felicitous utterances on a number of occasions and he is very good on honeyed words. But I could not help but think of Pickwick Papers and the case of Bardell, where there is “a weak case and an abused plaintiff's attorney.” It was a bit like that, with the capricious favouring of one referendum rather than another. By what turn of logic anybody could suggest that the creation of an elected senate does not involve the abolition of this House I do not know—unless it is a Liberal desire that the two Houses should sit separately or work alternate days. That is a fundamental constitutional proposal. I believe, along with the noble Lords, Lord Howarth and Lord Grocott, that the issue that we are discussing this evening is at least worthy of consideration for a referendum.

I hope that my noble and learned friend Lord Wallace of Tankerness will be able to explain what the coalition Government’s philosophy is on referenda. I prefer the word referenda to referendums, as I am sure the father of the noble Lord, Lord Howarth, the High Master of St Paul’s, would have done. What is the Government’s philosophy on referenda, and what is the list of subjects that merits that constitutional accolade? It was reasonable to suppose that AV should be the subject of a referendum, although as I indicated in my intervention the only reason that we are having one on that is that it was not considered possible to get it through the House of Commons. Is the Government’s definition of a referendum that if you cannot get something through the Commons you have a go by going to the people? Is that the definition? If so, there is a certain cynical logic in it and I am sure we would like to hear that. However, if the other definition is that we will have a referendum only on an issue of supreme constitutional importance, is not the alteration of our electoral system to have fixed-term Parliaments, to which I am not intrinsically opposed, a very fundamental constitutional change? As the noble Lord, Lord Grocott, indicated, it will mean that the people have less frequent chances of voting. If that is to be the case, should they not be given the opportunity of saying whether that is what they want?

I look upon this amendment, as I am sure noble Lords who spoke to their amendments look upon those amendments, as a probing amendment, and not as an issue on which we should even begin to contemplate dividing the House today. However, I do think that it is up to the Government to try to produce what I would call a coherent pattern of constitutional reform. In recent years the worst thing about constitutional reform—I referred to it in my maiden speech a couple of weeks ago—has been what I call back-of-the-envelope constitutional reform, something of which both Governments stand guilty. They say, “We’ll get rid of the office of Lord Chancellor. Jolly good thing. Yeah, we’ll announce it”. Of course we all know what happened. Another example is the negotiations over the formation of the coalition, which I gladly support. The leader of one party says that he wants certain constitutional changes, while the Prime Minister is keen to reduce the size of the House of Commons, so they put them together. However, there is not a really thoughtful approach. There has been no opportunity for pre-legislative scrutiny. There has been no opportunity to consider and contemplate papers, green or white. Although some people quote Harold Wilson who said that royal commissions take minutes and sit for years, royal commissions do not have to sit for years. It might have been far better, and the basis for a far more coherent approach, had a royal commission on the constitution been established to look at all these issues and at the role and composition of each House of Parliament and what it should do and not do. What we are doing is having piecemeal constitutional legislation. It is back-of-the-envelope stuff. I think that there is a time to pause and reflect. I hope that between now and Report we will see some reflection and some convincing answers to some of the very important issues that have been raised today and that will doubtless be raised at subsequent stages as we debate this Bill.

My Lords, I crave your Lordships’ indulgence and apologise for not being able to speak at Second Reading. There was a slight horlicks done by our Whips’ Office, for which I apologise.

This Government, who I support extraordinarily strongly, have the opportunity to produce some of the greatest social reforms and improvements for the benefit of this country since 1911. If Iain Duncan Smith gets his welfare reforms right, that will be a major contribution to the well-being of this country. If George Osborne gets the economy right, it will be of major benefit. If education reforms and medical reforms are as good as I personally think they are going to be, these will be the successes of a very great Government. But why have they gone completely doolally over constitutional change?

The trouble with this country is that constitutional change is extraordinarily easy. Every other country has complicated locking mechanisms in it. The Bill reduces the power of the House of Commons, reduces the power of the electorate and increases the chances of chaos. In 1870 or 1871, the French Government resigned. Either the President or the Prime Minister refused a dissolution—I cannot remember which. As there was no possibility of a dissolution, they played the game of pass the parcel and wrecked French government from 1870 until 1945. That is bad constitutional form. We would do the minimum amount of harm by adopting something along the lines of what the noble Lord, Lord Grocott, says. In my 30 or so years in this House, I have regarded myself as a disloyal Conservative, and I will go on being a disloyal Conservative. If they are doing something that I believe is as fundamentally wrong as this, I will say so. That does not mean that I will come and join you over there.

My Lords, I, too, support the observations of the noble Lord, Lord Cormack, as to the need for careful consideration of constitutional reform. The noble Lord, Lord Marks, accurately pointed out that the Constitution Committee, of which I am a member, did not suggest that a referendum is required in relation to the introduction of fixed-term Parliaments. As the Committee well knows, the Constitution Committee expressed grave concern in paragraph 20 of our report that this Bill owes,

“more to short-term considerations than to a mature assessment of enduring constitutional principles”.

I suggest that the Government’s position in relation to whether a referendum on constitutional reform is appropriate is precisely a matter that appears to be determined by short-term considerations—alternative vote, yes; reform of this House and fixed-term Parliaments, apparently no.

It is very difficult to deny that the Bill that we are currently considering will introduce major constitutional reform. In paragraph 40 of our report, we refer to the evidence that we heard from Professor Vernon Bogdanor in which he pointed out that the Bill, if enacted, will prevent,

“a newly chosen Prime Minister between Parliaments from going to the country”,

it will prevent,

“a Prime Minister who has a new policy for which he may seek a mandate from going to the country”,


“Most importantly of all, because we could be moving into that situation with our hung Parliaments, it means that coalitions can change in the middle of a Parliament without the people being allowed to pronounce on that”.

This is a major constitutional reform. I am no fan of referendums, but I would welcome guidance from the noble and learned Lord, Lord Wallace of Tankerness, on behalf of the Government, as to what their policy is as to when a referendum is appropriate for constitutional reform and when it is not, and I would welcome an assurance that that issue is not determined by short-term political considerations.

My Lords, I realise that I regard the noble Baroness, Lady Hayter of Kentish Town, as an agreeable ally on constitutional matters, but I was sorry that the noble Lord, Lord Howarth of Newport, felt it necessary to precede her in this short debate. Of course I understand the protocol that he was pursuing, but we always know that the noble Lord, Lord Howarth of Newport, will have spoken before the Minister rises—he is indeed a pillar of the constitution. However, I think that chivalry has a role. At Second Reading, I alluded to the French Revolution. In Burke’s memorable sentences:

“It is now sixteen or seventeen years since I saw the queen of France … the age of chivalry is gone. That of sophisters, economists, and calculators, has succeeded; and the glory of Europe is extinguished for ever”.

I understand why the noble Lord, Lord Howarth, spoke but a little variety in our experience might bring the government Benches back into the Chamber on constitutional matters, as he was wishing earlier, just as everyone who speaks in these debates has their own personal and individual subjective view on how we could increase voter turnout.

An aspect of variety in this speech is that, most unusually, I disagree with the noble Lord, Lord Grocott, whose constitutional views I respect just this side of idolatry. However, I have a reservation on this occasion. He prayed in aid the statistical fact that there would have been four fewer elections since the war under this Bill than factual history produced. I have profound admiration for the maturity of the British electorate. On only one occasion among those 17 post-war elections did they possibly make a mistake, as they themselves may have conceded, by giving more votes to one party and more seats to the other, but that does not mean that we may want more opportunities as an electorate to exercise our maturity or indeed our wisdom.

The reductio ad absurdum to which the argument from the noble Lord, Lord Grocott, could be made subject is that we should hold a referendum on whether the electorate wanted more elections or fewer. There is some polling evidence that they would vote for fewer but that would accelerate the number of referendums we felt it necessary to think that we need.

My Lords, that is an interesting contribution to follow. Like the noble Earl, Lord Onslow, I am pleased to make rather a late entry into your Lordships’ deliberations on this Bill. I am glad that it is on such an interesting matter and I am grateful to my noble friends Lord Grocott and Lord Howarth for their amendments.

As a number of noble Lords have suggested, this is part of what was promised to be a comprehensive package of reforms on the constitution by the Government. We have already had the Parliamentary Voting System and Constituencies Act. We now have this Bill and before too long, although it seems to be a somewhat lengthy time in coming, we are promised the draft House of Lords reform Bill. Like other noble Lords, what I find so puzzling is the piecemeal approach and lack of consistency on the part of the Government to how these different measures are brought before Parliament, then in some cases put to the electorate and in others not so.

We are to have a referendum on AV. We are also promised, in the coalition agreement, a referendum on any changes or amendments to the European Communities Act 1972 where there is a proposal under a treaty to transfer areas of power or competencies. Yet there is to be no referendum on the principle of a fixed-term Parliament, on whether it should be for four or five years, or on reform of your Lordships’ House. I agree with other noble Lords that, arguably, this Bill and the one to come are constitutionally much more significant than changing a voting system from first past the post to AV.

As the noble Lord, Lord Pannick, said—it is worth reflecting on this—the view of the Lords Select Committee on the Constitution is that this Bill owes,

“more to short-term considerations than to a mature assessment of enduring constitutional principles”.

I agree with that. My noble friends Lord Grocott and Lord Howarth are surely right that the period of five years must mean that the voters will find themselves less able to hold the Executive to account. That is therefore of significance. The noble Lord, Lord Brooke, may be right in suggesting that the public might welcome being inconvenienced on fewer occasions. But should that not be put to the public in a referendum? Surely it is the same when it comes to Lords reform. Like the noble Lord, Lord Marks, I think that the issue of Lords reform is highly significant to the debate that we are having.

The noble Lord and I both served for many months on the working group chaired by his colleague, Mr Jack Straw, when we looked in very considerable detail at the various proposals for reform of your Lordships’ House. At not one single moment through the whole of that White Paper’s preparation did he or his colleagues suggest that it was necessary for those proposals to be put in a referendum for the public to take a view. Why is there suddenly this interest in making that proposal the subject of a referendum?

It is because it is part of a series of measures of constitutional change. The noble Lord, Lord Tyler, will also know that the intention was always to produce that White Paper, which we did, then to ensure that it was in the manifestos of the three parties at the last election, which it was, then to bring forward proposals. For myself, I believe that a referendum ought to be considered in the context of the current Government’s decision to go for a referendum on AV and their other constitutional changes; and because it is abundantly clear, from all that I have read and heard, that they are not prepared to deal with the issue of powers when it comes to Lords reform.

My noble friend Lord Grocott and I do not always see eye to eye on Lords reform, but I certainly agree with him when he challenges the naive assumption that an elected senate will simply carry on in much the same way as your Lordships’ House does, without any impact on the House of Commons. I do not accept that; an elected second Chamber is bound to impact on the Commons and on our constitution in a major way. In many respects, it will be a new House even though there may well be a transition period between where we are and where we get to in the end. The same applies to the Bill. As a result of the Bill there will be less accountable Parliaments, because they will last longer, and a legislature with a more limited ability to evict a Government who have lost the confidence of the Commons. I say to the noble Lord, Lord Marks, that that is pretty fundamental to me. At the very least the Minister, whom we all value for his contributions on constitutional issues, ought to have a shot at showing where the consistency is between those constitutional changes which are to be subject to a referendum and those which are not.

My Lords, we have once again had a spirited and interesting debate with a number of important points made. It is also obvious that some of the issues raised went beyond the question of a referendum and into some of the detail of the different constitutional reforms that have either been debated and passed or are about to come down the track.

Perhaps I might start by taking issue with the noble Lord, Lord Grocott, on a couple of the points which he made at the outset. He said that he hoped that never again would he hear that the Prime Minister was surrendering power or determining the date of the election. While it is the case that the Prime Minister and the Government are, in this Bill, putting forward a date for an election as being the first Thursday in May 2015, and while I hope that the Bill will be passed with that in it, that in itself means that the Prime Minister has surrendered a power because it is not possible—

He has actually put it to Parliament for it to support. Parliament will have had to vote that through, as is quite clear because we have other amendments coming down to change that date. Unless circumstances arise that would trigger the mechanisms in Clause 2, the Prime Minister of the day will not have the opportunity to seek Dissolution when it might seem opportune other than to have the election on the date set down in the Bill. He will have surrendered that power.

The Prime Minister has said, perfectly reasonably, that he thinks his Government will go on until 15 May 2015. He has made a perfectly legitimate choice to the House of Commons, but binding his successors is a different matter altogether.

My Lords, my noble friend’s point goes to the heart of whether one should have a fixed-term Parliament, bearing in mind that no Parliament can bind its successor. We debated the arguments for fixed-term Parliaments at Second Reading. I believe that they would ensure that Governments were able to plan, as indeed could Parliament, for a fixed period, and that they would not allow a Prime Minister of the day to seek an opportune moment to go to the country earlier than the full length of a Parliament for partisan reasons. This is an advance on what we have at the moment.

The point I am making is that if the Bill becomes law as it currently stands, the Prime Minister’s hands will be tied. If he saw an advantage some time in the spring of 2014, it would not be possible for him to cut and run because, if the Bill was on the statute book, he would not be allowed to do so. The fact that the Bill ensures that Parliament cannot otherwise be dissolved means, as the noble Lord, Lord Hennessy, remarked at Second Reading, that the Prime Minister has given up an important power.

We could debate whether the electorate have been denied as many chances to go to the polls as otherwise. The crude arithmetical approach—I do not mean crude in a pejorative way—adopted by the noble Lord, Lord Grocott, did not take into account that in no case since 1945 would any circumstances have arisen that would have triggered the mechanisms for early Dissolution or an early election under Clause 2; he assumes that that would never have happened. However, if one looks at history, it may well have happened in 1951 when there was a consensus between the parties that an election was needed. It may well have happened in February 1974. I know that my noble friend Lord Cormack thinks that the then Prime Minister, Mr Edward Heath, was wrong—and, indeed, as the electorate pointed out, he probably was—but there may well have been circumstances then in which it was felt that the Government of the day, and, one assumes, the Opposition, would not have stood in the way of an election, and that could have triggered Dissolution. It may well be that, as a result of that election in 1974, when there was no working majority for any party, another election may again have been agreed.

The point I am trying to make is that you cannot simply indicate that every Parliament would have gone the full five years since 1945 because there may well have been circumstances during these years that would have triggered an election. That is the whole point of the provision of trigger mechanisms, which no doubt the Committee will debate in due course. With issues such as no-confidence Motions and their wording, there is plenty of material and meat for debate.

My noble friend Lord Onslow, in his response to my noble friend Lord Marks, asked whether the Bill would extend the lifetime of this Parliament. My noble friend Lord Marks was right to say that it has the potential, if the power is used, to extend the date by two months in certain agreed circumstances, such as the foot and mouth outbreak in 2001. However, it is important to put on record that the general election last year took place on 6 May and that the first meeting of the new Parliament took place on 18 May; therefore this Parliament can continue until 18 May 2015. The latest date on which an election could be held is 11 June 2015, so stipulating the date of 7 May 2015 does not extend the life of this Parliament. The power is there to be used in exceptional circumstances and is subject to the votes of both Houses, and that is why the Parliament Act would not apply.

The amendment invites the Government to hold a referendum on whether the general election should be held in May 2014 or May 2015, although it makes no provision for the result of a referendum to be reflected in the length of a fixed-term Parliament after that general election. I think we get the spirit of what the noble Lord, Lord Grocott, is moving. My reaction is similar to that of my noble friend Lord Brooke; I am not sure what the public will make of being invited to choose the date of the next general election. I suspect that they would consider that as one trip to the polling station that they did not need to make.

The noble Lord, Lord Grocott, asked my noble friend Lord McNally which issues would be submitted to a referendum, and my noble friend replied:

“the Government believe that Parliament should judge which issues are the subject of a national referendum”.—[Official Report, 24/1/11; col. 671.]

Indeed, it will be possible for Parliament to make that judgment on any legislation.

As to the referendum on the alternative vote, let me try to put into context where we are. I do not make any bones about the fact that in the aftermath of the last general election, when quite clearly no party had an overall majority, there were coalition negotiations in which we tried to seek agreement. This has put in place a Government who are doing things of which my noble friend Lord Onslow heartily approves. I have been involved in coalitions in devolved Administrations, and there is inevitably an element of give and take and compromise in the negotiations. It is quite clear that the Conservatives did not support electoral reform in the shape of the alternative vote, and I do not shy away from the fact that some movement was required on that if there was ever going to be a coalition that would address the immediate economic crisis facing the country. There was therefore an agreement that there should be a referendum on the alternative vote, a policy that had been in the Labour Party’s manifesto. The Conservatives did not espouse a policy for fixed-term Parliaments, but they were prepared to accept it as a part of a coalition agreement because the Liberal Democrats were prepared to accept many other things. This has subsequently laid the foundations to get us out of the economic and fiscal mess bequeathed to the Government.

Both the Labour Party and the Liberal Democrats had a commitment to a fixed-term Parliament in their manifestos, although neither of them said what the period would be—certainly the Liberal Democrats did not say so. We had party policy papers from the past, but we did not say four years in our manifesto. Crucially, neither party said that there would be a referendum on that commitment. Contrast that with the Conservative Party, which indicated that it wanted referendums on British membership of the European Union and ceding further powers to Brussels.

The Minister is very careful in his choice of words. Can he assist me? What should I say in the referendum campaign to people who ask me whether there will be the same AV system for voting for Members of the House of Lords? If it is not to be the same, what should I say to people who ask me why we should not have the same system for the House of Lords? The fundamental flaw in the Government’s policy is not the options that they choose on an individual issue, but that when they all come together they begin to look like a committee trying to design something but not knowing how many legs it has or whether it has two heads.

Far be it from me to suggest how the noble Baroness should answer questions about the merits of the AV system. I am not sure which side she is on but I should like to think that we are on the same side. I cannot answer her question because I am not a member of the committee looking at Lords reform and have not seen its proposals. I genuinely do not know the answer to the question.

I do not think that it would be appropriate to go into the merits of Lords reform in the context of this Bill, but I pick up the point made by my noble friend Lord Tyler that in all the discussions with the previous Government on the committee chaired by Mr Jack Straw, it was never anticipated that there would be a referendum. As was confirmed by the noble Lord, Lord Hunt of Kings Heath, the purpose identified was that a White Paper would propose either a wholly or a substantially elected second Chamber, which would go into the manifestos of the three main parties. Indeed, that proposal was put before the electorate in the manifestos of the three main parties. I did not find it a very convincing argument that there should now be a referendum on Lords reform or anything else just because this Government have brought forward other constitutional measures.

My Lords, the noble and learned Lord will know that the Government’s intention is that when the draft Bill is published, it will then go before a Joint Committee of both Houses for pre-legislative scrutiny. If, as a result of that pre-legislative scrutiny, the Select Committee does indeed report that there are significant constitutional issues involved in the proposals, would the Government then consider a referendum?

Tempting though the honeyed words of the noble Lord are—that seems to be the phrase of the night—he knows full well that it would be wrong of me to anticipate a hypothetical situation regarding that committee other than to confirm that it is proposed that there will be a Joint Committee to carry out pre-legislative scrutiny. It would be wrong for me to speculate on what that committee will propose, because that is some way down the track, or what the Government’s response would be.

My noble friend Lord Marks indicated that the previous Government brought forward legislation that fundamentally changed the relationship between the judiciary, the Executive and Parliament, and did so without a referendum. That might be thought to be a far more fundamental and far-reaching constitutional reform than the one we are considering. With the exception of the proposed referendum on the alternative vote, the Constitutional Reform and Governance Act, introduced in this House before the wash-up, had a plethora of constitutional measures, none of which, other than the AV referendum, sought to have a referendum attached to it. While I take on board the strictures of the noble Lord, Lord Pannick, on the Constitution Committee’s consideration and view on this Bill, the committee did not, as he confirmed, recommend that there should be a referendum. If one reads the Constitution Committee report from the previous Session, when I was a member, one detects a great reluctance to go down the route of referendums—or referenda, in deference to my noble friend Lord Cormack.

The items on the list read out by my noble friend Lord Marks, including the abolition of the monarchy and the secession of one of the nations from the United Kingdom, are of a different order from what is proposed in the Bill. This country is, after all, governed by a system of representative democracy in the other place. We in Parliament are basically entrusted with the power to make important decisions on behalf of the people of this country and, in the other place, by the people who are elected to make these decisions as representatives of the people. There must be an exceptional reason to ask people a direct question in a referendum, and I do not believe that the case has been made this evening for that exceptional high threshold to have been reached in respect of the Bill. I therefore urge the noble Lord to withdraw the amendment.

My Lords, I really am grateful for the contributions that have been made to this debate, not least because, as I said at the beginning, I felt that I needed to apologise to the Committee for mentioning the word “referendum”. It seems that there is still a fair degree of enthusiasm for talking about it now.

I will not use the term “honeyed words”, but the noble and learned Lord, Lord Wallace, always puts together a strong argument. I must say, however, he was on pretty weak ground when he tried to suggest that it was not the Prime Minister who decided that the next general election will be on 7 May 2015. No less an authority than his own dear leader said:

“We have a Prime Minister who is the first in history to relinquish the right to set the date of the general election”.—[Official Report, Commons, 13/9/10; col. 622.]

Who did set the date of 7 May 2015? If it was not the Prime Minister, who was it? That decision was quite clearly made by this Prime Minister, and the only rights he is relinquishing are those of future Prime Ministers. I suggest taking the Denis Healey advice on that one—when in a hole, stop digging. The Prime Minister made his decision, with the Deputy Prime Minister, for the understandable political reason that they are in a fragile political situation following the general election and they had best try to bank five years in the job rather than risk their term being foreshortened. I really cannot put it any more strongly than that.

The noble and learned Lord suggested—and this may or may not be true; this is, by definition, something that cannot be demonstrated conclusively—that there might have been a few more general elections than I said since the Second World War if the provisions of this Bill had been in operation. He suggested that there might have been scenarios in which a general election would have been triggered according to the provisions that deal with that. I find that argument pretty unconvincing. I am trying to imagine a scenario in the House of Commons when two-thirds of the Members—that means the whole of the governing party and a substantial number of opposition party members—were cheerfully voting together to charge to the polls. It is very difficult to imagine.

The only time when an election would have been triggered under the provisions of this Bill was in 1979, when the Government lost a vote of confidence. I will not repeat too much of what was said on Second Reading, but that seems to have been the perfect operation of our constitutional arrangements. It was beyond improvement. Why on earth we need to start defining that kind of thing in legislation is beyond me. It was a magnificent occasion although, from my perspective, it was also a magnificent defeat. It was the constitution working as it should have done, and we only diminish the constitution by these provisions. But we will come to that later.

I am encouraged by a number of the contributions to this debate that were, on balance, more in favour of acknowledging that this is a fundamental change. Having fewer general elections weakens the electorate—surely we can agree on that. The noble Lord, Lord Brooke, as ever, put forward an interesting tangential view. I agree with him that perhaps the electorate would not give the answer to the question, “How many elections do you want?”, that we might assume they would. They might decide, “We can’t be bothered with another blooming election for quite a few years now”. That is quite possible. However, I certainly think that they should have, as my noble friend said, the right to decide whether, instead of having an election every three years and 10 months on average, there should be one every five years. That, surely, is a fundamental constitutional change. I do not want to misrepresent what the noble Lord, Lord Pannick, said, but I think that he as good as said that, as did a number of other speakers.

I realise that there is a weakness in my amendment, which is what my noble friend Lady Hayter said I might say. It was a pity that she did not go to New Zealand earlier because I would have loved to have heard her views of what the people there felt about changing their electoral system from first past the post and whether it had brought undiminished joy and happiness in the way that people who argue for proportional representation suggest.

It does bring the likelihood of coalition very much to the fore. Some people favour that and some do not, but undoubtedly in New Zealand the great advantage for those who support coalitions is that abandoning first past the post makes a coalition more likely.

I wish even more that we had had the benefit of a contribution from my noble friend and that she had been to New Zealand earlier. Perhaps we should take some advice on that front. However, her fundamental point was that, if you are going to increase the gap between general elections, you should certainly not do so without consulting the electorate.

I do not know whether the noble Earl, Lord Onslow, was supporting the proposal for a referendum but I very much agreed with him on what I think he referred to as the “constitutional madness” of the Government or a phrase of that sort. He said that they have got everything else right—which I obviously do not agree with—but they are getting constitutional reform wrong.