VACANCIES (Hansard, 22 April 1998)

§ Mr. Mackinlay
I beg to move amendment No. 2, in page 2, leave out lines 21 to 23 and insert—

The Second Deputy Chairman
With this, it will be convenient to discuss the following amendments: No. 11, in page 2, line 21, leave out from 'by' to end of line 23 and insert 'the appointment of a substitute chosen by the party to whom the previous occupant of that vacant seat belonged, or was elected as a representative of that party, and where the former representative was an independent the seat shall remain vacant until the following assembly elections.'.
No. 1, in page 2, line 21, leave out 'by-elections or'.

§ Mr. Mackinlay
Before I advance my arguments for adopting the amendment, which I consider to be superior to what is in the Bill, I should like to make one point that is germane to our detailed examination of legislation. I voted with some reluctance for the guillotine, so I should like my hon. Friend the Minister to explain why the Bill will not be considered by the House of Lords until Monday or Tuesday week. I find that quite breathtaking and worrying. We were told that there is a degree of urgency in our consideration of the legislation in Committee, so we need a good explanation on why it is not moving expeditiously to another place.
Having scuppered my chances of a job in the next reshuffle—I hope—let me explain why the structure of clause 3 is so important. We need to address the way in which vacancies in the assembly are filled, as that matter needs to be handled delicately.
901 The right hon. Member for Upper Bann (Mr. Trimble) gave us a good illustration which referred to the hon. Member for Foyle (Mr. Hume). Had the hon. Member for Foyle been elected President of the Irish Republic, as was contemplated at one time, he would have had to vacate his seat in the European Parliament. There would have been a by-election, but it would have been impossible for the SDLP to replace him. Clearly, he would have been replaced by someone of the Unionist persuasion. That problem is writ large if by-elections to the new assembly are held under the proposed electoral system. Whichever tradition commands a majority in a particular constituency would be bound to win, regardless of whether the vacant seat had been held by the Alliance, Sinn Fein, the SDLP, or the DUP. In all probability, the official Unionists would win the seat.
As there will be multi-Member constituencies, I believe that that would be undemocratic. It could also knock the fragile balance of committee seats in the assembly and the distribution of portfolios or number of seats on the Executive; that would be a source of great frustration.
After the assembly has been elected—I shall not take all hon. Members with me on this point—there will, unhappily, be a time of fragility in which it has to build up its procedures and form an Executive. As it prepares to move in that incubation period from being a shadow body to a fully functioning assembly, a by-election could be wholly disruptive.
9 pm
I invite hon. Members to consider a scenario in which the Executive has been set up and—as is in the nature of politics—there are bad times. There could be extreme and, I hope, extraordinary terrorist activity, or some natural disaster, for example. Some people would exploit the opportunity offered by a by-election to create difficulties.
I use as an analogy the Westminster general election of February 1974, which destabilised, and contributed to the demise of, the Northern Ireland Assembly and Executive, which at that stage had had only a few months' life. If the election had not occurred, the Executive and Northern Ireland Assembly might have had a longer run, and the problems that arose—the Ulster workers' strike and so on—might have been avoided. Lord Merlyn-Rees and others who were involved, including the late Brian Faulkner, said that the election came at a bad time, and I believe that by-elections to the New Northern Ireland Assembly could give rise to similarly great problems.
Unlike the Bill, amendment No. 2 would make it clear that there was a presumption that, when a vacancy arose, it would be filled by a member of the political party that previously held the seat. That would help the Secretary of State by removing any ambiguity, so that those people who wanted the political opportunity to fight a by-election for their own selfish reasons would not have any grounds for complaint against her or any future Secretary of State.
The amendment is similar to one tabled by the hon. Member for Belfast, South (Rev. Martin Smyth), in that it would cover cases in which independents, who might have no natural successor, lost their seat or their seat was declared void. It would then allow the Secretary of State—in the nature of things, this would be rare—to call a by-election or to hold the seat vacant.
902 I do not like the latter option, but, like the hon. Member for Belfast, South, I recognise that a vacancy could occur relating to a seat hitherto held by an independent and we must explore that possibility. The seat could also be held in abeyance until a Westminster general election or a Northern Ireland local government election, for example—those options should also be explored. However, the overwhelming majority of vacancies that will occur will relate to people who were elected on a party ticket—the provisions that deal with other circumstances are highly unlikely to be used.
In the past 24 hours, I have been referring to my library of Hansards—1 was also studying the Hansard reports of the 1973 Northern Ireland Assembly. They should be compulsory reading, as they buttress the argument—I say this in parenthesis—that Standing Orders should be handed down by the Secretary of State rather than formulated by the assembly. The former assembly wasted much time on that.
Tragically, on the eve of the first sitting of the Northern Ireland Assembly, a Unionist Member, Mr. McCarthy, was killed in a car crash and the by-election was never held because, as far as I can ascertain, it was such a short-lived assembly.

§ Rev. Ian Paisley
The seat, my own constituency of North Antrim, was filled; a DUP man won it.

§ Mr. Mackinlay
Indeed.
I do not want to press the amendment to a vote. There could be subsequent reshuffles, and I do not want to scupper anything! In the gap between now and the matter being considered in another place, there should be some reflection on this question, on the matter of the Presiding Officer and on one or two other matters. I cannot see why it should not be possible, by agreement—there is agreement—for amendments to be made in another place that could go through on the nod when they come back to the House.
There is a mood in the Chamber for tidying up this measure. It would help the Secretary of State to have an improved Act on the statute book.

§ Mr. Mallon
I have much sympathy with the amendment and I look forward to hearing the Minister's view on it, but it could run contrary to the whole reason for the proportional system, which is to create a proportional representation within a constituency in an election, and 1 am strongly in favour of that. A by-election under proportional representation becomes a majority vote election, especially in the Northern Irish context, and the amendment would defeat that purpose.
The amendment also runs contrary to the d'Hondt system in relation to appointments within the assembly. Under that system, if a Minister dies, becomes President of Ireland or is no longer a Minister for some other reason, the post returns to his party. The amendment would create a contradiction with that element of inclusivity.
The proportionality according to which appointments are originally made, be they in cabinets or committees or in the assembly itself, could be changed by the by-election process envisaged in the amendment. To take an extreme example, if a party was on the borderline of having enough of a mandate to have one of its members appointed a Minister under the d'Hondt system, and a 903 member of the party subsequently died or left, it might then have too few members for that ministerial post. Does the party lose its claim to the post because the element of proportionality has changed?
I know that that is an extreme case, that in normal practice it would not happen and that those who would push it to happen would be very churlish indeed. That points to the contradiction that exists. The problem as regards independence is obvious, but we have to remember that there is no such thing as independence in Northern Irish political life. Some people with strong opinions might label themselves as independents—during the forum elections one of the local newspapers carried a marvellous headline, calling on all independent candidates to unite so that they could present a united voice in the forum. I should have thought that it would have been much easier to join a political party and have done with it, but that points up the difficulties.
Like the hon. Member for Thurrock (Mr. Mackinlay) who moved the amendment, I do not think that it should be pressed to a vote, but I would be interested to find out what the Minister has to say and to hear the reaction to it. He knows that on 2 February the matter was discussed at length in the talks. In fairness, the minute tells us that the discussion was inconclusive.

§ Mr. Robert McCartney
With his experience as a member of the Senate of the Dail Eireann, can the hon. Gentleman assist us about the position there when there is a by-election, as happened recently in a seat in north Dublin and another in Limerick? The proportional representation system of single transferable vote is, I understand, the same. Can the hon. Gentleman tell us what happened on those occasions and whether a similar system to that suggested in the Bill is applicable there?

§ Mr. Mallon
The hon. Gentleman knows full well the answer to that question. In Dail Eireann there are by-elections. We are dealing with a different system. In Dail Eireann, members of the Government are appointed by the leader of the largest party, which forms the Government, so there is not the proportionality factor either in committees or ministerial positions and that is the essential difference. I take the point, as having a by-election looks more democratic, but, in essence, it runs counter to all the other arrangements.

§ Mr. William Ross
The hon. Gentleman is wrong to say that that is the essential difference. It is that in Dail Eireann, if the Government lose their majority they go to the country. Perhaps I am wrong, but, as I understand it, we are talking about a fixed-term body. That is the essential difference between the Dail and this House, and what is being proposed in the Bill.

§ Mr. Mallon
Again, the Government need not necessarily go to the country. One of the most successful Governments in the Republic of Ireland—that led by Sean Lemass—was a minority Government from the day they began until the day they ended, and lasted for the full term. That does not answer the hon. Gentleman's question, however.
The issue was discussed in the talks process and, according to the minutes, was inconclusive, but there is a substantive case for the Government to reconsider the 904 matter, measure it in accordance with the proportional representation system for election and with the d'Hondt system of appointment to committees and Cabinet positions. Having studied it, they might move, hopefully, towards the amendment.

§ Rev. Martin Smyth
I support the general thrust of the debate. We have considered the matter and recognise some of the issues. The hon. Member for Newry and Armagh (Mr. Mallon) used the illustration of someone becoming President of Ireland, which, with proportionality, might result in a Sinn Fein candidate moving up. It could be the other way round and involve a Sinn Fein man becoming President of Ireland and an SDLP person going to the assembly.
The question to face is the principles and patterns that have been accepted for the assembly. It was in the light of proportionality that we tabled our amendment. We recognise that if we are to go down that road, there must be some consistency. It was said earlier that the Unionists would be most likely to win, which would be wonderful. The amendment shows that we are not seeking to hog any assembly. The reality is shown by a recent Omagh council by-election. The council swung because, following the death of a Unionist, a Sinn Fein councillor was elected. It could be said that that is democracy at work. In councils, the Dail Eireann or a Parliament such as this, it is possible to wheel and deal so that a party can retain its governmental role, assisted by others. However, in the assembly it is proportionality right through, and I believe that it is incumbent on the Government, especially in the week before the Bill goes to the other place, to think again and make some amendment.
The matter is important for another reason. The amendment would clear the position and leave no ambiguity. If it is left open for a vacancy to be filled by some method chosen by the Secretary of State, whoever that might be, there could be controversy about whether that person had acted judiciously or with bias. If the Bill is clear about how vacancies should be filled, there is no room for further argument.

§ Dr. Godman
Despite my respect and affection for my hon. Friends the Members for Thurrock (Mr. Mackinlay) and for Newry and Armagh (Mr. Mallon), I have some reservations about the amendments. My hon. Friend the Member for Thurrock offered no comparative evidence about where the system that he envisages operates. My hon. Friend the Member for Newry and Armagh was asked about recent by-elections in the Republic, in Limerick and Dublin. As I said earlier, both were won by representatives of the Irish Labour party. I recall another by-election in Dublin where Mr. Joe Higgins almost pulled off a dramatic victory over the issue of water rates. What of the interests of the electors in such a system?
I readily acknowledge the need to take account of the special needs of Northern Ireland and the important question of proportionality. Nowhere are such considerations more evident than in the Knesset. The system there is a disaster, but it is still democratic. All I am saying is that electors in a constituency must have the right to voice their view at a by-election about the conduct of the previous Member, whether he is dead, in prison or whatever, and about the conduct of the party concerned. 905 Labour has suffered some remarkable reverses in Scotland. My Scottish friends on the Government Front Bench will recall the Govan by-election, which we lost.

§ The Minister of State, Northern Ireland Office (Mr. Adam Ingram)
That is one.

§ Dr. Godman
There has been more than one; I am talking about our most recent defeat, when we lost to the SNP despite the massive majority Bruce Millan had enjoyed. I have listened carefully to the Minister, but we must give serious consideration to the interests of the electors.

§ Mr. Mackinlay
My hon. Friend has challenged me to cite an example of such an arrangement. I am open to correction by my hon. Friend, but I have to remind him that we, in this place, in this parliamentary Session, have passed clauses in the European Parliamentary Elections Bill that mean that there will not be any by-elections. So he and I voted for precisely this formula. I assume that he voted for it—if not, he should not have a chance of a Cabinet job either. We all voted for it. That is something that we have taken on board in this parliamentary Session.
If I had done some research, I suppose that I could trot out half a dozen examples. The Australian Senate, which is elected, has a system—by convention admittedly—in which when a vacancy occurs the premier of the state from which the Senator comes nominates someone from the party that held the seat. Even if the premier is a member of the Country party, if the Senate seat was held by the Australian Labour party, he nominates an Australian Labour Senator, no doubt recommended by the leader of the party.
There are plenty of precedents, but the most important is that my hon. Friend and I voted for such arrangements—

The Second Deputy Chairman
Order. I remind the hon. Gentleman that he is making an intervention.

§ Dr. Godman
It was an interesting intervention. I do not know where to start replying to it, Mr. Lord. My hon. Friend offered to give me half a dozen examples in an intervention that could hardly be called brief. He gave the Australian Senate as an example. That convention developed over a number of years, as my hon. Friend will acknowledge. It was not introduced in 1901.

§ Mr. Willis
What about the European Parliamentary Elections Bill?

§ Dr. Godman
Does the hon. Gentleman wish to intervene?

§ Mr. Willis
I thank the hon. Gentleman for giving way and I am sorry for interrupting him from a sedentary position, but the most relevant point that the hon. Member for Thurrock (Mr. Mackinlay) made was about the European Parliamentary Elections Bill. We would like the hon. Gentleman to deal with that example.

§ Dr. Godman
I cannot recall offhand, but I may well have voted for such a system in that Bill. A degree of 906 inconsistency does no one any harm and I have never had any aspirations to higher office. I have answered three of my hon. Friend's questions from his less than brief intervention. He gives us the Australian Senate, where convention was developed over many years. The European Parliament is an entirely different assembly. It has no legislative powers. It cannot be compared sensibly with what we are discussing this evening, which is, a Northern Ireland assembly that may prove to have some characteristics in common with our Scottish Parliament. I would not want to see the type of measure that my hon. Friend advocates introduced into the Scottish Parliament.

§ Mr. McGrady
My hon. Friend does not have to go outside Northern Ireland to find an example that supports the argument for replacement by party connotation. In local government in Northern Ireland, by agreement within the chamber, vacancies are not filled by proceeding to an election. People are co-opted by party designation. That happens in the vast majority of councils in Northern Ireland.

§ Dr. Godman
I do not regret getting up to speak, but I am losing friends by the minute here. I am not too happy with the local government example. I should like to see many more powers given to local government in Northern Ireland. I suspect that councillors might have a different view if they had the powers that local authorities in Scotland and elsewhere have.
To address the amendment directly, I have to say that, despite the remarkably fine characteristics of my democratic socialist Friend the Member for Thurrock, it does not address the concerns of the electorate during the lifetime of a Parliament. Despite the problems facing my hon. Friends from Northern Ireland on a daily basis—I am only an occasional visitor to the Six Counties—my view is that we must take account of the interests, aspirations and concerns of the electors. With sincere respect to my hon. Friend the Member for Thurrock, I do not think that his amendment addresses the problem, which is the democratic rights of the electors themselves.

§ Mr. Peter Robinson
The amendment deals with one of the Bill's many provisions that demonstrate the degree to which the assembly is to be the puppet of the Secretary of State. Throughout this short piece of legislation, it is abundantly clear that the Secretary of State has the assembly on a choke chain: if it moves in one direction, she hauls it back; if it moves in the other, she hauls it back; if it goes too far forward, she hauls it back; if it does not move fast enough, she kicks it forward. The Secretary of State can refer to the assembly even those matters that are outside the scope of the assembly's authority.
The Secretary of State has the power to make provision for the elections and she effectively has the power to decide who comes in on the foot of any vacancy. There is no provision in the Bill that suggests that the Secretary of State is required to do the same thing in one case as in another. In one case, she might find it politic to hold a by-election—perhaps in that way one of her supporters might get elected. In another case, it might be preferable to allow the vacancy to be filled by a member of the same party as the person who is deceased or has retired. In yet another case, she might find some other method—it is 907 entirely up to her—of filling that vacancy. That is not remotely a democratic way of dealing with a vacancy, therefore, the amendment fails to address the problem.
Because of the electoral system, there are automatic difficulties and I can well understand the problems mentioned by the hon. Member for Thurrock (Mr. Mackinlay). There is bound to be a feeling of injustice if a party manages to get the appropriate quota that allows it one seat out of six, but the person either dies or retires, a vacancy occurs and the party does not get its seat in that area, it is not represented and its voice is not heard.

§ Mr. Paul Murphy
I ought to intervene on the hon. Gentleman because I think that he has misunderstood the clause. Clause 3 refers to the Secretary of State, by order, laying down the method by which vacancies are to be filled. That would be a general order, which referred to the general principle of how vacancies are to be filled and not to individual vacancies as they occurred. His speech suggests that he is under the impression that the Secretary of State could pick and choose between methods—by-election on one occasion and substitution on another—but that is not the case. When I reply to this debate, I shall explain in more detail what my right hon. Friend the Secretary of State has in mind on that issue, but I should say now that the clause refers to vacancies in general and to general principles, not to individual cases.

§ Mr. Robinson
I quite understand that the provision is that the Secretary of State will make an order—but the Secretary of State could make another order. There is nothing in the Bill that suggests that the Secretary of State is not capable of making one order after another, or varying the conditions from one occasion to the next. If it were not so, why does she not put that up front right now? Let her put it on the face of the Bill. The obvious approach would be for her to tell us how a vacancy will be dealt with. I would far rather know right now what the method is to be, even if it was not the method I most preferred, because I would at least know that it would apply in all sets of circumstances.
I can understand the genuine concern that the proportionality in an area will no longer be intact after a vacancy occurs. In the Republic of Ireland, that is dealt with by recognising the fact that opinions can change in a constituency, and that, unless one allows a by-election, in effect one freezes one's electoral body. In this case, one would freeze not only the electoral body, but the form of government within that body. It could never change while the assembly existed. We should remember that the legislation has an indefinite lifespan: it could remain for ever and a day. With the Bill as it stands, Members of the Assembly will be elected without knowing how long their term of office will be; it is not stated.
I believe that it could cause many problems to freeze matters for all time in Northern Ireland by saying that any vacancy should be filled by a member of the party to which the ex-member belonged. Although I believe that the best way of dealing with the problem is by holding a by-election—inadequate though that may be—even if the Government did not go in that direction, I should much prefer that they stated in the Bill how we shall proceed if a vacancy arises.

§ Mr. William Ross
We have had an interesting little debate on this issue. My hon. Friends and I tabled amendment No. 11 partly because this issue is not new in Northern Ireland; it has been around since the proportional representation-single transferable vote system was introduced for council elections and for the Northern Ireland body. In some cases, considerable changes in council strengths were made as a result of one or two deaths in a district electoral area, or even in adjoining ones.
The problem has not been resolved. Although Ministers may be unaware of the fact, it is not the first time that I have drawn attention to the problem of by-elections and the replacement of persons who have died or retired under the PR-STV system.
The hon. Member for Inverclyde—

§ Dr. Godman
Greenock and Inverclyde.

§ Mr. Ross
The hon. Member for Greenock and Inverclyde (Dr. Godman) said that, without holding a by-election, one did not address the concerns of the electorate between elections. However, the difficulty is that, between elections, it would be a first-past-the-post election—or rather, on the exhaustive vote system—whereas the general election, to whatever body, is conducted under the single transferable vote system. For a by-election to be fair, the five or six remaining Members must stand down, and the election must be held for the whole constituency.
People do not take kindly to that, either, but that is the only fair way to find out what the electorate of the area think between general elections. We have to say, "Sorry guys; someone's killed, someone's resigned. The whole body of representation in the constituency is wiped out, so you have to have an election."
Let us be clear in our minds about another thing. One does not know when some poor soul in a sensitive area in Northern Ireland will become a target for a killer. Given the passions that have flowed round that place for years, I sometimes wonder how people—perhaps the only representative of the political view that they hold—have managed to survive. The constant danger is that, sooner or later, someone with gunmen will get round to looking at the politics. I strongly believe that we need to consider that issue with great care.

§ Dr. Godman
Whatever system is chosen, loose ends will be left untied. There is no perfect system anywhere. I am simply saying that I believe that, in principle, whatever the system, vacancies should be filled by way of by-elections.

§ Mr. Ross
In general terms, I have no problem with that philosophy. I am saying only that it should be "fair do's" all round—that we should compare like with like, in the by-election as in the general election.

§ Mr. Mallon
I have a certain attachment to by-elections; had it not been for one, in rather unique circumstances, I should not be here. However, in the last forum election, in the constituency of Newry and Armagh, the Ulster Unionist party won one seat. That was a distortion, because the electoral system was a distorted 909 one, but it was still under proportional representation. Let us assume that—as, thankfully, did not happen—that person had become the President of the Republic of Ireland, which would have been very unlikely. It would have meant that the constituency of Newry and Armagh had no Unionist representative. In the event of a by-election, we would win the seat and the Ulster Unionist party would be totally disfranchised in that constituency.

§ Mr. Ross
It would be more accurate to say that the Ulster Unionist electorate rather than the Ulster Unionist party would be disfranchised. The Minister will understand by now that there are concerns about this issue that are not tied to this assembly alone. I believe that our problems in this area go beyond the assembly to the entire range of bodies elected by proportional representation. For that reason, I hope that the Government will take on board the points raised in this discussion, and perhaps return on Report or in another place with proposals that might meet with more general approval. I do not deny the arguments made by the hon. Member for Belfast, East (Mr. Robinson), who raised concerns that are different from those represented by other hon. Members who have participated in the discussion.

§ Mr. Robert McCartney
The hon. Member for Belfast, East (Mr. Robinson) appeared to argue that the Secretary of State could, by a series of orders, select a variety of means of filling vacancies. I understood the Minister to say that an order would be made stating the general principle upon which each consecutive vacancy would be dealt with thereafter. Is there any reason why the present Bill should not contain words to the effect that the Secretary of State will make an order setting out the consistent principle upon which all vacancies will be filled? That would preserve the Secretary of State's right to fill the vacancy according to a principle that would apply to each and every vacancy. It would also permit the Bill to pass, leaving the detail of the particular method to be selected later, and it would lay to rest fears that there may be a degree of unjust variety in the modes of filling possible vacancies.

§ Mr. Paul Murphy
This has been a very interesting discussion. It stems from the point made earlier by my hon. Friend the Member for Newry and Armagh (Mr. Mallon), who referred to the fact that this is unfinished business so far as the talks were concerned. I chaired the meeting when we dealt with the matter. We did not reach a conclusion, and because of that and because it is a particularly important issue—I acknowledge that the hon. Member for East Londonderry (Mr. Ross) has raised it before—it is a concern.
There are strong feelings on both sides of the argument. The traditional way of filling parliamentary vacancies in this country is through by-elections. However, in the light of the nature of the electoral system in Northern Ireland and the system that already operates for European parliamentary elections in the Republic of Ireland—it will be introduced in this country as well—we know that we must consider the method of alternates by substitute in order to preserve proportionality.
The Government wish to consult on the matter. The Secretary of State will, by order—it will be a statutory instrument resulting from the Bill—put before the House 910 of Commons the general principles, to which the hon. and learned Member for North Down (Mr. McCartney) referred, of how we shall fill assembly vacancies. Those principles will be before us very soon. In the meantime, I urge hon. Members—as I urged them regarding the other matter—to write or talk to me or the Secretary of State about their concerns. Parliament will then have the opportunity to address the matter in the context of dealing with orders.

§ Mr. Beggs
Does the Minister agree that to avoid all the confusion that might arise and to ensure that the balances and adequate distribution of positions are maintained, right from the beginning, the parties or the independents who are elected should make known the substitute to be appointed in the event of a vacancy arising?

§ Mr. Murphy
There are complications, even in a system of alternates. An alternate at the beginning of a Session of a Parliament or an assembly might, in the course of the Session, not want to serve any more. What happens then? There are practical difficulties.
There are practical difficulties in the amendment of my hon. Friend the Member for Thurrock (Mr. Mackinlay), with the reference to "party". That implies the definition of party. We would have to examine that further because of the complications surrounding those matters.
The debate has been a good one and all the points have been made. The debate that will accompany the order to be laid before the House will benefit from the arguments that we have heard this evening. I urge hon. Members not to press their amendments, as we shall deal with the matter in the not too distant future.

§ Mr. Mackinlay
I beg to ask leave to withdraw the amendment. I hope that that meets the mood of the Committee. We still stand a sporting chance.