HL Deb 29 January 1998 vol 585 cc340-79

4.15 p.m.

Report received.

Clause 1 [Referendum]:

Baroness Hamwee moved Amendment No. 1: Page 1. line 13. leave out ("question") and insert ("questions").

The noble Baroness said: My Lords, I shall speak also to Amendment No. 12. Amendment No. 1 is a paving amendment. The amendments deal with the question or questions to be asked in the referendum. It is a matter which was considered at some length in previous stages. During earlier exchanges the Government asked whether the Liberal Democrats and the Conservatives could come up with a set of questions upon which the two groups agreed. She criticised us, perhaps understandably, for proposing different sets of questions, although they were not far apart.

We have responded to that challenge. We have not done so because we agree on the preferred model for London government but because we believe that there should be a debate on the model—the type of debate that a referendum will engender, not the rather peripheral discussion which will occur if there is just one package/question, where the issue for debate will be the generalised issue of the government of London.

It is no secret that all the parties have different views as to the elements there might be in the government for London. The Government propose a package, and they have been clear about that: an authority consisting of a separately directly elected mayor and an assembly. Most of the Liberal Democrats support an assembly with the leader of the assembly taking the mayoral role. Most of the Conservatives support the idea of a directly elected mayor, and an assembly or group comprised of leaders of the London boroughs. There is a range of views in all parties. There was a reference at an earlier stage of the Bill to the leaks about discussions within the Greater London Labour Party and other Labour members in London.

In Committee the Minister talked (co1.950) about providing firm leadership, setting strategic direction and getting things done. She ascribed those actions to a mayor, and said that that was what a mayor could do. Those actions could equally well be ascribed to and carried out by an assembly with a leader. As I have said previously, the model for an assembly, a group, a parliament with a strong leader, is that of Mr. Blair. But those activities could also be carried out by a mayor subject to different types of checks than the ones which will be on offer in this package.

The Government believe that the mayor should not have too much power. I agree with that. I believe that no individual in any level of government should have too much power. The recipe of the Liberal Democrats is to write in checks so that an assembly can deal prospectively, not just retrospectively, with proposals and can he effective; in other words, involving a group of elected representatives at the start of every project and every undertaking.

I have referred before to the model of New York, often quoted, where I believe that the mayor has the support of an office of financial officers 350 strong, yet the assembly with the role of scrutinising the mayor's budget has the support of a mere 35 officials, 10 per cent. I give that as just one example of the sort of thing that worries me and noble Lords of my party. That, of course, has been our policy quite consistently.

I am aware that the package on offer from the Government is what was in the manifesto "after a referendum". Those were the words used. So I do not believe that it is of quite the same status as other manifesto items. The noble Lord, Lord Campbell of Alloway, at the last stage said: It is right that the Labour manifesto, which I read often, makes the point that there will be an elected assembly and a separately elected mayor. But it does not make the point that people shall not be able to have one without the other".—[Official Report, 13/1/98; col. 952] Nor does it say that there cannot be expressions of opinion about the two elements.

I am sure that the Government do not wish to suggest that the vote in the referendum will be the sort of vote one sees in a totalitarian state, where the people are required to show support for any proposal that comes from the head of state and they have no alternative. So what are we to make of the notion of a referendum, still a very new procedure in the United Kingdom? My noble friend Lord Wallace of Saltaire at the last stage distinguished between referendums and plebiscites. Plebiscites are what governments do to demonstrate the illusion of consultation but to get their will. Referendums are real consultations with the public. There are different views about what referendums should comprise, what they should be expected to achieve. But there is the common element that they should involve a process of education of the public and encouragement to participate, of consultation and involvement; all values which are certainly values of my party, but I believe that they are expressed to be values of new Labour.

The noble Baroness spoke at an earlier stage of not having imposed upon the Government a constitutional settlement other than the package which is on offer; a settlement, as she described the possible outcome, which the Government believed to be fundamentally wrong. Of course not. I do not believe that a referendum can impose—certainly not the referendum that we are talking about in this context; it can guide.

I agree with my noble friends Lord Wallace and Lord Dahrendorf that public debate about what is the real role of plebiscites and referendums would be useful. But even without that debate I am in absolutely no doubt that what Londoners expect is to be asked their views. The propositions are novel: a mayor, a very strong mayor with powers of which we have no experience. They expect to be able to express their views on the novelty.

The notion that this is presented as a package has been greeted with some amazement by a number of people to whom I have spoken who have not followed the detail of the argument in the way that your Lordships will have done. Their common sense approach is, "This is something on which we should be consulted. We should be able to say what we want. But there are two parts to it. We want to express our views on both parts".

I have referred to it being a package which is on offer. I hope I do not sound impertinent in saying that it is intellectually a very respectable argument to say that we propose a package, we do not want to disaggregate that package, we will ask views on that package. What I find less easy to understand is how the Government could proceed if there was a no vote because they will not know what the voters regard as being objectionable.

Our approach is quite different. It is setting out the context of the package, that the Government propose an authority made up of an assembly and a mayor. Then it asks the two questions because, whatever my preferences and those of my noble friends, and I believe those of the Conservative Party, we do not believe that any of those who support the amendment before your Lordships this afternoon would say that politicians should be pre-empting the views of Londoners. The Government may say that if only the mayor were to be approved from a two question referendum it would not wish to proceed with the mayoralty. It is up to the Government, and indeed, up to my party to argue against an authority which comprises only a mayor with insufficient checks and balances. But if, nevertheless, this is the outcome, that there is not support for both elements, then of course the Government will have to think again. I cannot believe that that is an inappropriate outcome because a constitutional settlement which does not have the resounding support of Londoners must have an element of instability.

The Minister referred at the last stage to the referendum not being an oversized research project. Equally, it is not a directive which the Government are bound to follow if their proposals do not receive support. She said it is a package with interdependent parts. Yes, then that is what should be argued during the referendum campaign. It is not a matter of offering two alternative choices to the people of London. If there is a preference for one element—the authority—but not for the other, there will have to be further work on how and if that element might operate. But overwhelmingly, I suggest that it is Londoners not Labour who should decide. I beg to move.

Lord Bowness

My Lords, I support this amendment that stands in the name of the noble Baroness, Lady Hamwee, and myself. This was a matter discussed in Committee. At that time I withdrew the amendment that was in my name and promised to read carefully the reply that the Minister gave to the debate on both that amendment and that of the noble Baroness, Lady Hamwee. I must tell the Minister that I have done just that. And just as I did after reading the Minister's response to the issue when it was raised during the Second Reading, I still believe that in resisting two questions the Government are seeing complications where complications do not exist.

The proposal is a very simple one. We would like the people of London to be able to vote separately on the two elements of the Government's proposal. I emphasise that the question does not seek to put before the citizens of London anything different from that which the Government are proposing. Nor, I should say for the avoidance of doubt, does it seek to have a situation where there is either a mayor alone or an assembly alone. Our reason for wanting the question to be posed in two parts is that by then, if we do not have a Bill, we shall at least have a White Paper and some of the details will be very much clearer.

It has to be said, however—and I do not believe that this can seriously be gainsaid—that having seen the details, people may well have a different view about the proposals from those which they currently hold. It is quite conceivable that a voter wishing to see an authority for Greater London might feel that the powers to be given to a directly elected mayor were, for example, too great with insufficient constraints, in which case he might wish to vote in favour of the assembly proposals but not for the mayor. Similarly, voters may dislike the powers and functions to be given to a directly elected assembly. They might consider that those constrain not just the mayor but the boroughs themselves, making it difficult for the mayor and, indeed, the boroughs to do their jobs as envisaged in the proposals or as they would seek to argue they should be done.

The Government appear to have no trust in people's ability to see the difference between the two questions and to answer something more sophisticated than this Government's demand for a simple "yes" or "no". I believe that in what will be a very complicated situation, voters may have a variety of different views and they are entitled to be given as many opportunities as possible to express them

The problem with the Government's approach is that it must be accepted or rejected in its entirety. Indeed, the Government seem to make a virtue of that. They acknowledge it and say that it is a package which the voters must take or leave; there can be no picking or choosing. The Government say that there are no choices on offer. One is bound to ask why they bother with a referendum at all. However, I leave that to one side.

Surely it is possible for the referendum to take place against the background of informed debate and to seek a view of the public in the most meaningful way. Your Lordships will know that given that the Government have decided to go down the referendum route, at the very least the draft Bill should be available. But let us suppose for a moment that it is not. Even the Government's second-best plan envisages a White Paper with proposals being available before the vote. Even the Government propose that. Critical to that debate will be the balance of power not only between the mayor and the assembly but between the mayor, the assembly and the boroughs. As a result of that debate, it is perfectly possible for the voters to say, "We like the plans that you have for an executive mayor but not the plans for the assembly", and vice versa.

Contrary to what the Minister said at earlier stages, that does not commit the Government to proceeding with their plans for a mayor and not an assembly or for an assembly and no directly-elected mayor. The Government can make it quite clear, as they have done, that they view this as one proposal and a package and will not proceed with one element only. No doubt the Government will campaign individually for a "yes" vote on both counts but that does not preclude the proposals being divided and put to the people to seek their views on the two essentials.

If the Government fail to achieve two "yes" votes, they will have to think again on whichever element received a negative vote. It will be up to them. No one else is going to decide how to proceed. Nothing is going to be forced on anybody by having two questions and conceivably two different answers.

In Committee the Minister asked how a voter should vote who wanted a mayor and assembly but only with the proper checks and balances. I should say to the Minister that I have pondered on that question. I hope that I understood it. In asking the question she is assuming that it is only the relationship between the mayor and the assembly which is the relevant question. As I have suggested, there are the matters of functions and relationships with the boroughs which need to be considered.

I believe that the Minister's voter would vote "yes" twice if satisfied on the question which she posed and "no" to both questions if not satisfied. But the Minister did not pose the problem of a voter who is convinced about the need for a mayor, a voice for London and an advocate for the capital who likes the directly-elected concept but who is concerned about the powers and functions to be given to a new assembly.

The advocate for an assembly but not a directly elected mayor might make a similar case. Why should the voter have to make a stark choice instead of being able to give a considered reply to the two elements of the Government's plans? In my submission the case for two questions is very strong and is not a distinctly Conservative position.

In Committee in another place it was pointed out that not only did The Times and the Telegraph support two questions but so did the Guardian, which supported the Government's proposals in their entirety. I am sure that the Minister will be aware that the editorial in the Guardian said: We subscribe to neither view, but to deny them", that is, the public, any expression on the ballot seems peculiar. After all, the whole point of a referendum is to allow all the people their say". I believe that the case for two questions will be even stronger when the debate takes place against the background of the details to be put forward by the Government in their White Paper. I support the amendment.

4.30 p.m.

Lord Hunt of Kings Heath

My Lords, I have listened very carefully to the remarks of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Bowness. I have some concerns about the impact of the amendment, both in terms of the principle of the Bill before us but also in terms of the practical effect that those amendments would have which could lead to both delay and confusion and may thwart the very clearly expressed desire of Londoners to have strategic leadership in the capital as soon as possible.

As both the noble Baroness and the noble Lord pointed out, the Government are proposing a package which embraces both an elected mayor and a separately elected assembly. The proposals were based on the Labour Party's manifesto. They were incorporated within the Green Paper and the consultation that went with it.

The beauty of what is proposed is that the public in London are being given a clear choice to vote "yes" or "no" with the implications of that choice well understood. They can be very clearly implicated if Londoners vote in favour of the proposals.

Once one moves into a two question situation, that undoubtedly complicates the picture. I should say, in answer to the noble Lord, Lord Bowness, that you could end up with several outcomes: either a mayor and an assembly together, a mayor alone, or an assembly alone. The White Paper that preceded the referendum would then need to discuss that range of options. I suggest that it would present a confusing picture to the people whom we are asking to vote instead of presenting a clear-cut choice. Londoners would have anything but that.

It becomes even more complicated if a Bill must be published eight weeks before the referendum. The danger is that confusion and delay may occur. I believe that our capital city has suffered so much for too long from a lack of clear strategic leadership. The Bill offers us the clearest, quickest and most straightforward way to proceed. We should resist the amendments.

Earl Russell

The noble Lord, Lord Hunt of King's Heath, objects to the amendment for exactly the same reasons that I objected to the Government's decision to have a two-question referendum in Scotland. I was wrong. I believe that the noble Lord, Lord Hunt of Kings Heath, is wrong for the same reason. Both of us at different times have been too fearful. We have been too reluctant to allow the will of the people to be expressed clearly.

We have here two logically distinct questions. They are far more obviously logically distinct than the two questions put forward in the Scottish referendum. Therefore, since we actually have two questions, I believe we need to know what the people think about both questions. I am sure that your Lordships know the story of Hobson's choice: when you came to the stable you were allowed to choose any horse that you liked, as long as it was the one nearest the door. Hobson was actually a real person. I discovered the fate of his estate in the Record Office of your Lordships' House. He was a Cambridge University carrier who made a fortune of £30,000 but, because he died intestate, the lawyers got it all.

In much the same way the Government may possibly risk getting their come-uppance if they will not allow the voters to make a real and genuine choice. On opinion poll evidence at present, it is perfectly clear that it is overwhelmingly likely that a "yes" would be given to both questions. I know that people tend to get anxious, but I really do not think that the Government need to be this anxious. I believe that they can afford to take the risk.

Baroness Ludford

My Lords, I just wanted to remind the Minister that, in Committee, she quoted with approval part of the speech that my noble friend Lord Dahrendorf made on Second Reading. She said that he was absolutely right when he said that, referenda should not he exploratory and open-ended. They should test the views of the people about government proposals. The first duty is therefore that of government to make such proposals and to argue for them. … If the people of London do not like the Government's proposals—for two separately elected components of the Greater London authority—the Government will have to think again".—".— [Oflicial Report, 15/12/97; col. 430.] I believe that the Minister quoted those words because she thought that the arguments expressed supported her case. However, I suggest to her that those words could equally support the argument for two questions in the referendum.

The first point made by my noble friend Lord Dahrendorf was to say that the Government must argue for their proposals. What we have heard is the suggestion that, with two questions in the referendum, the Government will have the proper democratic duty of arguing and explaining their proposals very strongly and that the quality of debate will be all the higher for it. In other words, the interests of Londoners in the debate is likely to be greater and there will be the prospect that some of the issues facing a London authority will be discussed, rather than what is happening at present with the debate being distorted by speculation on the personality who is likely to run for the position of mayor. That is most unhealthy.

The second point made by my noble friend was that if the people do not like the Government's proposals the Government will have to think again. The point has been well made in this debate that the referendum is a consultative process. In that respect, perhaps I may answer a point made by the noble Lord, Lord Hunt, who said that the referendum would be based on the proposals in the manifesto. If the manifesto and the General Election result were all that was necessary, one could say that there was no point in having a referendum. If we are to have a referendum, it is because we want the specific approval of Londoners for the scheme put forward by the Government. If the Government have to argue strongly for their proposals for an assembly and a directly-elected mayor—which, as my noble friend Lady Hamwee pointed out, is a constitutional innovation in that it is rather novel—I believe that the debate will be all the stronger.

Another important point which has arisen from the debate is that the Minister has said at various stages that the Government are wary of the situation where voters could reject the assembly and opt only for a mayor and that, as they do not support having a mayor only, they would be unable to implement that result. I believe that would be dealt with by the fact that, clearly, they would have to think again. However, I hope that the quality of the arguments will ensure that it will not come to that.

Can the Minister also address the following point? If voters are faced with the package only and do not like one element of it, they will have to vote "no" to the whole package. If they are not happy with the suggestion of a directly elected mayor, they will have no option but to vote against the assembly. That seems to me to be a very sorry situation and is one of the reasons why we on these Benches have consistently supported the restoration of a strategic authority for London. We would prefer a first-best solution, but a second-best solution is better than no London authority.

We are worried that the atmosphere in which this proposal will be debated will rather sour the debate. Frankly, it looks as if the Government are open to the charge of being rather arrogant in imposing only a single package and, indeed, that they may be getting rather defensive about the whole idea of a London authority. The spirit in which this should be presented and debated is that of an exciting step forward in that London will be better governed when it has a London authority. If the Government are coming over as rather stubborn about this—indeed, perhaps rather defensive—and unwilling to argue strongly for the different elements in the package, there is a risk that the nature of the reception that Londoners will give the proposal will be slightly discouraging and we shall end up with less support and enthusiasm for what should be a bold and exciting step forward.

Before the Minister replies, I should add that it is important for us to remember that the amendment is supported by those who actually want a directly elected mayor. Supporting this amendment does not depend on whether you want the outcome of only an assembly or only a mayor; indeed, it is supported by those who simply want the quality of democracy and of debate to be enhanced by giving Londoners the choice. The Government would go up in the estimation of all those who support democracy and who vote for choice if they were to concede that the best way in which the referendum can be conducted is to allow Londoners not to have their vote distorted by the package approach.

4.45 p.m.

The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman)

My Lords, we have been through this territory both in another place and in your Lordships' House on several occasions. I shall try to restate the Government's position on the issue of two questions as clearly as I can. The noble Baroness, Lady Hamwee, was very clear in her exposition and very frank as regards the history of the two Front Benches opposite finally finding a form of words upon which they could agree in terms of the proposed amendment. The noble Baroness accepted that, in a sense, that masked a very real disagreement between those two Front Benches and certainly in regard to this Front Bench about the best constitutional settlement for London.

There is disagreement on the issue. The Government's position is absolutely clear-cut. It was clearly stated in our manifesto and, indeed, it has been there all along. We believe that there should be a Greater London authority comprising a directly-elected mayor and a separately directly-elected assembly. We have stated that we need the leadership and the legitimacy of a directly-elected mayor and the accountability and the monitoring of a separate, directly-elected assembly. Moreover—and I say this to the noble Lord, Lord Bowness, because it represents the difference between us—we believe that those people should be separately elected to that job. In other words, they should not be doing it as a second job to their leadership of the London boroughs. I know that the noble Lord's party believes that there should be an indirectly-elected assembly, in the same way as the noble Baroness's party believes that there should be an indirectly-elected mayor. These are absolutely legitimate political differences for parties to hold.

I have no problem with these arguments being propounded by parties. Indeed that was done during the general election campaign to some extent. The Government's position was clear and has been consistent. I believe that the position of the Liberal Democrats was clear; namely, they have never been in favour of a directly elected mayor. The noble Lord, Lord Bowness, has accepted that the Opposition—

Lord Ogmore

My Lords, I thank the Minister for giving way. I am sure that most noble Lords know exactly what the noble Baroness means. However, I should be grateful for some clarification. When she uses the words "directly elected", does she mean that both the assembly and the mayor are directly elected by the electorate of London? Or, is the assembly elected directly by the electorate and the mayor elected by the assembly? There may be slight confusion here.

Baroness Hayman

My Lords, the noble Lord has illustrated the kind of confusions and difficulties we get into when we start opening up different options. The Government's proposition is quite clear; namely, that there should be elections for a mayor. There will he a slate of candidates for the mayoralty. There should be elections for the assembly. There will be names of people and the constituencies they would represent. The voting systems will be set out in the White Paper. As I say, there will be separate elections for the assembly. There will be a disposition of powers between the mayor and the assembly; the inter-relationships will be set out clearly. Those two together will form the Greater London Authority to which we committed ourselves in our manifesto.

Earl Russell

My Lords, I am grateful to the Minister. Before she concludes I hope that she can answer the question of my noble friend Lady Hamwee. If the manifesto concludes the matter and the package cannot be divided, why do we want a referendum?

Baroness Hayman

My Lords, I can assure the noble Earl, Lord Russell, that I have not finished yet. However, he has thrown me slightly. I was trying to express the matter clearly. There are different views as to the most appropriate way forward. Those views can be propounded by different political parties and put to the electorate at a general election. To an extent that was done. The general election of last year gave a clear endorsement to the Government. Perhaps my next point will answer the questions of the noble Earl, Lord Russell, and the noble Baroness, Lady Hamwee. The Government also committed themselves to testing the assent of the people of London to a Greater London Authority.

I rather resent the accusations of totalitarianism and not giving the people any choice. We are imposing another layer of assent and public consultation. We saw what happened when the GLC was abolished. One does not need a referendum to change government in London; one can do that by Act of Parliament. However, we stated in the manifesto that we believed it was important to create strategic, city-wide London government and to test whether the people of London agreed with the Government's proposition. We never said that we would also offer them propositions that appealed more to the Liberal Democrats or to the Conservatives.

I wrote down what the noble Earl, Lord Russell, said. He said that in the past we had been reluctant for the will of the people to be clearly expressed. We are trying to allow the will of the people to be clearly expressed. I stress the importance of the word "clearly". I suggest to the House that there would be no clarity in the kind of propositions that have been put forward by the noble Lord, Lord Bowness, or the noble Baroness, Lady Hamwee. If we detect different degrees of support for different parts of the package, the Government will have to think again. How will the electorate know what their clear choice is when a variety of results could emerge on the issues of whether the mayor or the assembly should be directly elected? The noble Lord, Lord Bowness, said people were considering many other issues, for example the relationship with the boroughs.

Lord Bowness

My Lords, I am grateful to the noble Baroness for giving way. I hope she will concede that I did not say there were an even greater number of outcomes; I said there were a number of issues that the people would wish to consider when casting their vote. I did not argue for more than two questions. That strictly limits the possible outcomes.

Baroness Hayman

My Lords, it strictly limits the possible outcomes but people would not know with any clarity what the outcome of their vote would be as they would not know how other Londoners would vote and they would not know what the Government's response would be. I return to the accusation of totalitarianism and imposing a referendum to which people can vote only yes. That is not correct; people can vote yes or no.

Baroness Ludford

My Lords, I hope the Minister will address that point. People may have to vote no when they are voting no to only one element of the package. However, they will be forced to vote no to the whole thing precisely because the Government are not giving them the option to vote no to only one element. Would it not be better to have some government for London rather than none if people's votes are being distorted by the Government's refusal to give choice?

Baroness Hayman

My Lords, I cannot agree with the noble Baroness that it is definitely better to have some government rather than none. Neither I nor the Government want to have an unaccountable mayor. We do not think that is the right way forward. I do not wish to see—I do not think those on the Bench opposite wish to see this—a recreated GLC without the leadership and the counterbalance of a mayor. We need some clarity here. We were accused of not being able to risk the judgment of the people. However, we are willing to risk the judgment of the people on the package that we are putting forward. I do not think it is appropriate to analyse the speeches of a noble Lord in his absence in terms of the thinking behind them. I believe that the words of the noble Lord, Lord Dahrendorf, that I mentioned were absolutely clear. People can read them in the Official Report and draw their own conclusions.

Lord Archer of Weston-Super-Mare

My Lords, I have listened to the argument with great interest that was academically given to the House with all the forensic skill of the noble Baroness. Will she be kind enough to explain to me why in Scotland there could not have been one question: "Do you want an assembly with tax raising authority"?

Baroness Hayman

My Lords, in Scotland there were two separate issues which were not interdependent. They were separable constitutional areas. The reason we had one question in Wales was because the issue of tax raising powers was never proposed as something that would be implemented. In the case of Scotland there was a package of constitutional measures, without a pick-and-mix; for example, "Do you want a first Minister or not a first Minister?", or, "Do you want to change it around, or anything else?" There were two separate issues comprising the constitutional set-up of the Parliament and the tax varying powers. There was a clear yes or no answer to either question. I have said time and again that the Government's case is quite clear; namely, this issue concerns responsibility of government. I have forgotten the point that was raised by the noble Baroness, Lady Ludford.

Baroness Ludford

My Lords, I referred to the danger that people would have to vote no to the whole package.

Baroness Hayman

My Lords, I apologise to the noble Baroness. The noble Baroness said that people would have to vote no when they were only 90, 80, or 70 per cent. against a measure and that they would not be able to express the nuances of their views. I am afraid that life is sometimes like that. At general elections we have to take the totality of a party's policies and come to a view on them. It would be irresponsible of the Government to offer the people of London the possibility of splitting up a constitutional settlement when the Government do not believe that would be in the interest of Londoners. We are willing to risk the judgment of the people of London on the proposition for which we shall definitely argue. We have no temerity about that. We are not uncertain about the robust nature of the proposals, but we wish to see some clarity.

Lord Bowness

My Lords, the Minister speaks about the robustness of the proposals. Does the noble Baroness agree that there are no proposals? The Government have produced no White Paper or Bill. The Government intend to put forward an unknown proposal to the people of London. They are not even prepared to divide the proposal so that the people of London can make a considered judgment when they have a few details, which will presumably come from the White Paper rather than the Bill as we would prefer.

Baroness Hayman

My Lords, I can assure the noble Lord that there will not be "a few details" in the White Paper. The White Paper will be comprehensive. It will deal with all the issues with which this House is rightly concerned across the range of complex issues involved in the government of London. The White Paper will be published in the week of 23rd March. We shall make sure that a summary of that White Paper goes through the door of every household in London.

We have talked seriously in this House about how we can make people aware clearly of the details of the proposal. To do so clearly, and to give proper information, in such a complex area will not be aided if many variable answers may result—the mayor without the assembly; the assembly without the mayor. If we are to have clarity, we cannot also have a variety of outcomes other than "yes" or "no".

That leads me to another issue that I hope your Lordships will consider carefully if the amendment is pressed to a Division. I refer to the behaviour of the Chamber, and the amendment which was passed in Committee. The noble Lord, Lord Bowness, discounted his victory in Committee; but victory it was. The Committee amended the Bill so that a Bill has to be published eight weeks before a referendum is held. The Government advised your Lordships' House that that was not appropriate. We thought that it was wrong. We did not think that it would aid clarity and understanding; and we knew that it would delay fatally the referendum. It would mean that we could not hold the referendum on 7th May of this year, the same day as the local elections. Nevertheless, the Committee took a different view. It took the view that there should be a Bill and those who propounded the amendment were clear that it should contain the detail of the Government's proposals. The Bill should not contain clauses which provided for the relationship were there to be an assembly but an indirectly elected mayor, or, alternatively, the relationship were there to be a directly elected mayor with an indirectly elected assembly. The noble Lord, Lord Bowness, was clear that the Bill should contain the specifics of the Government's proposals so that people knew exactly what they were voting for or against.

Lord Bowness

My Lords, I hope that the noble Baroness will forgive my intervention. I do not wish to delay the House longer than necessary. Does the noble Baroness agree that we proposed that there should be a Bill? That is the decision of the House as it stands. The Government's proposal—it is second best in our view—is that there should be a White Paper with proposals. Does that not support—

Baroness Farrington of Ribbleton

My Lords, perhaps I may remind the noble Lord that we are on Report. This is the third intervention and interruption of the Minister's winding up speech. Normally one is considered sufficient.

Lord Bowness

My Lords, clearly I am in the hands of the House. But the Minister referred specifically to what I said. It seems to me that she was misinterpreting the position we put to the House.

We want as many details as possible put forward. Does the Minister agree that in the light of those details it would be quite possible for the people to express one view about one aspect and a different view about another?

Baroness Hayman

My Lords, that is the point on which I differ with the noble Lord. While I do not think that it is justified, there is an intellectual coherence in being more specific, getting more detail, and having the legislation in front of people before they vote in the referendum so that they know the government's proposals and exactly what would be entailed in voting "yes" or "no" for the package of the greater London authority, which is the assembly and a mayor.

The House should consider carefully whether we should ask another place to amend the Bill in two diametrically opposite directions. The amendment already passed asks for more clarity and more detail on the exact government proposals. This amendment increases uncertainty. It has been said by Members of both parties opposite that the Government would have to think again as a result of the different votes and degrees of support there might be for one proposal or another on the mayor or the assembly. This House rightly prides itself on being scrupulous about the internal consistency of its decisions. I do not think that it would be sensible, the House having amended the Bill in one direction, then to amend the Bill in a completely different direction.

Each amendment has a logic of its own. It makes the outcome either more black and white, more certain, with a more specific background against which people vote "yes" or "no"; or it opens up the situation and makes the referendum less a test of assent to a given proposition and more a consultative exercise on different options. But together the amendments pull in completely different directions. Together they destroy what was a clearly set out commitment by this Government in their election manifesto to implement proposals for a directly elected authority for London; that it should comprise two separately directly elected elements, and that we would test that proposition with the people of London. We were willing to risk the people of London rejecting what we put forward. As a responsible Government we were not willing to put before people a false menu of a constitutional settlement for London which we do not believe to be workable or in the interests of the capital. On that basis I urge the noble Baroness to withdraw her amendment.

Baroness Hamwee

My Lords, the Minister suggested that disagreement between the two Front Benches was masked by the amendments. That is not so. I and the noble Lord, Lord Bowness, have been perfectly clear about our decisions. It is not a question of masking disagreement but of reaching agreement as regards part of the process.

I shall not take up too much of your Lordships' time in responding. I sense that noble Lords would not be entirely tolerant of the arguments being rehearsed fully again. However. perhaps I may respond to points made by the noble Lord. Lord Hunt, and the Minister. It was suggested that there could be several outcomes to a referendum containing more than one question. I hope that I have made the position clear, but I shall do so again. I am not suggesting that if the votes do not produce the package that the Government are promoting they would then be bound to proceed immediately with one element.

It has also been suggested that this amendment is inconsistent with the one agreed by your Lordships at the previous stage—the question of publication of a Bill before the referendum. The Government immediately went on record as saying that they would reverse that amendment in another place. I recognise that that will not be the end of the process. However, I propose this amendment in the light of that history.

It has also been said that the will of the people can be clearly expressed by means of one question, but that more than one question would lead to a variety of results. I dealt with that point by explaining that I do not propose that the results would mean an immediate move to some other form of constitutional settlement.

The matter can be simply summed up in this way. There are entirely different approaches to assessing the will of Londoners. We have heard the Government's approach. We do not agree with it. I seek leave to test the opinion of the House.

5.11 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 111; Not-Contents, 104.

Division No. 1
Addington, L. Marlesford, L.
Alderdice, L. Masham of Ilton, B.
Alexander of Tunis, E. Massereence and Ferrard, V.
Annaly, L. Mayhew to Twysden, L.
Ashbourne, L. Merrivale, L.
Bath, M. Meston, L.
Bathurst, E. Methuen, L.
Beaumont of Whitley, L. Milverton, L.
Bethell, L. Monckton of Brenchley, V.
Blaker, L. Monro of Langholm, L.
Bowness, L. Monson, L.
Brahazon of Tam, L. Naseby, L.
Broadbridge, L. Norfolk, D.
Brougham and Vaux, L. Norrie, L.
Burnham. L.[Teller.] O'Cathain, B.
Calverley, L. Ogmore, L.
Carlisle. E. Park of Monmouth, B.
Carnock, L. Platt of Writtle, B.
Charteris of Amisfield, L. Rawlings, B.
Chorley, L. Razzall, L.
Clanwilliam, E. Rea, L.
Clark of Kempston, L. Redesdale, L.
Colwyn, L. Robson of Kiddington, B.
Cope of Berkeley, L. Rodgers of Quarry Bank, L.
Crickhowell, L. Romney, E.
Cumberlege, B. Rowallan, L.
Dacre of Glanton, L. Russell, E.
Denham, L. Seccombe, B.
Dixon-Smith, L. Skidelsky, L.
Donegall, M. Stallard, L.
Elliott of Morpeth, L. Steel of Aikwood, L.
Elton, L. Strathclyde, L.
Erroll, E. Strathcona and Mount Royal, L.
Feldman, L. Sudeley, L.
Garel-Jones, L. Swansea, L.
Gisborough, L. Swinfen, L.
Goodhart, L. Taylor of Warwick, L.
Gormanston, V. Teynham, L.
Granard, E. Thomas of Gresford, L.
Haig, E. Thomas of Gwydir, L.
Halsbury, E. Thomas of Swynnerton, L.
Hamwee, B. Thomas of Wallis Wood, B.
Harding of Petherton. L. Thurlow, L
Higgins, L. Thurso, V.
Holderness, L. Tope, L.[Teller.]
Hood, V. Tordoff, L.
Jenkins of Putney, L. Trenchard, V.
Kenyon, L. Tugendhat, L.
Lindsey and Abingdon, E. Tugendhat, L
Linklater of Butterstone, B. Wallace of Saltaire,L.
Ludford, B. Weatherill, L
Mackay of Drumadoon, L. Westbury, L
Mackie of Benshie, L. Wharton, B
McNair, L. Williams of Crosby, B.
Maddock, B. Winchilsea and Nottingham, E.
Mar and Kellie, E. Young, B
Acton, L. Irvine of Lairg,L.[Lord Chancellor.]
Allenby of Megiddo, V.
Amos,B. Janner of Braunstone, L.
Ampthill,L. Jay of Paddington, B.
Archer of Sandwell, L. Jeger,B.
Barnett, L. Kennedy of The Shaws, B.
Bassam of Brighton,L. Levy, L.
Berkeley,L. Lincoln,Bp
Blackstone,B. Lockwood,B
Bledisloe,V. Lofthouse of Pontefract,L.
Borrie,L. Lovell-Davis, L.
Brooke of Alverthorpe, L. McIntosh of Haringey, L.[Teller.]
Bruce of Donington,L. Mallalieu,B
Burlison,L. Milner of Leeds, L.
Carmichael of Kelvingrove,L. Mishcon,L
Carnarvon, E. Molloy,L.
Carter,L. Monkswell,L.
Cledwyn of Penrhos,L. Montague of Oxford,L.
Cocks of Hartcliffe, L. Morris of Manchester,L.
David,B. Murrary of Epping Forest,L.
Davies of Coity, L. Nicol, B.
Davies of Oldham, L. Peston, L.
Desai,L. Pitkeathley, B.
Diamond, L. Plummer of St. Marylebone, L.
Dixon,L. Ponsonby of Shulbrede, L.
Donoughue, L. Puttnam, L.
Dormand of Easington, L. Ramsay of Cartvale, B.
Dubs, L. Randall of St.Budeaux, L.
Evans of Parkside, L. Rendell of Babergh, B
Falconer of Thoroton, L. Renwick of Clifton, L.
Falkand, V. Richard, L.[Lord Privy Seal.]
Farrington of Ribbleton, B. Rogers of Riverside, L.
Fitt, L. St. Davids, V.
Gallacher, L. Serota, B.
Gilbert, L. Sewel, L.
Gladwin of Clee, L. Shore of stepney, L.
Gordon of Strathblane, L. Simon, V.
Gordon of Potternewton, B. Simon of Highbury, L.
Hardie, L. Strabolgi, L.
Hardy of Wath, L. symons of vernham Dean, B.
Haskel, L.[Teller.] Taverne, L.
Hayman, B. Tenby, V.
Healey, L. Thomas of Macclesfield, L.
Hilton of Eggardon, B. Thomson of Monifieth, L.
Hogg of Cumbernauld, L. Turner of Camden, B.
Hollis of Heigham, B. Walker of Doncaster, L.
Howie of Troon, L. Watson of Invergowrie, L.
Hoyle, L. Wedderburn of Charlton, L.
Hughes, L. Whitty, L.
Hughes of Woodside, L. Williams of Elvel, L.
Hunt of Kings Heath, L. Williams of Mostyn, L.
Hutchinson of Lullington, L. Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

5.20 p.m.

Clause 4 [Referendum: supplementary]:

Baroness Hamwee moved Amendment No. 2: Page 2, line 30, at end insert— ("( ) Where the polls referred to in subsection (1) are taken on the same day—

  1. (a) polling for the referendum shall be between the hours of 7 in the morning and 10 at night on the day of the referendum: and
  2. (b) polling for the election shall be between the same hours and regulations shall be laid pursuant to section 36(2) of the Representation of the People Act 1983 accordingly.").

The noble Baroness said: My Lords, this is an amendment to Clause 4, and I hope it is a less contentious issue. It returns to the question of polling hours and proposes that polling in both the referendum and in local council elections shall be from the hours of seven in the morning to 10 at night.

We previously focused on the hours of the referendum. I take the point that has been made that if the hours of the referendum and the borough elections held on the same day are different, there could be confusion. Noble Lords will be familiar with the argument over the need not to disenfranchise those who travel long distances and work long hours in London. At a previous stage, the noble Lord, Lord Tugendhat, commented on our becoming more of a 24-hour society. I accept what was said about encouraging turnout through other means and not only relying on the polling hours, although I suggest that that is not an adequate answer to the point which I and other noble Lords made.

I also understand the point about the costs, but there are costs to democracy. It was said that there could be administrative disruption, but that would not be the case if the hours of the two polls were the same. It was also said that the local election results would be delayed. Yes, but only by one hour.

Returning to the question of extended hours leading to higher turnouts, it was accepted that there was no evidence either way. The Minister said that if there was any evidence as to the effect of hours on turnout, then she would bring the matter back to the House. I know that very often in local elections there is a rush to vote between the hours of 8 p.m. and 9 p.m. when the polls close at 9 p.m. I also know that sometimes there is great difficulty in persuading people to turn out and vote straight away when they come home at 8.30 p.m. Because I live opposite a polling station, I have seen people turn up before 8 o'clock in the morning thinking that they can vote on the way to work but they find that the polls have not opened.

I believe it is likely that the referendum will be regarded as more like a general election than a local election and therefore the hours should be those of a general election. I realise that the hours are a matter for statutory instruments. So too are the hours of the local elections, but under other legislation. Hence my reference to the Representation of the People Act 1983. I hope that the amendment will give the Government the opportunity to convince us, with evidence, if there is any, that we will not disenfranchise—I use the word deliberately, knowing the argument on absent voting—those who wish to exercise their vote but who, for good reasons, find themselves unable to do so because of the pressures of work and other pressures in their lives. I beg to move.

Lord Hunt of Kings Heath

My Lords, as the noble Baroness said, it is a slightly less contentious issue than the amendment we have just debated. As someone who always draws the short straw at general elections and seems to be responsible for taking numbers outside polling stations between the hours of 9 p.m. and 10 p.m., I have waited in vain for many people to come through the doors when it is cold and dark. I have taken a particular interest in the issue. My experience has been reflected by many other people, not just in London but in other parts of the country. One needs a good deal of convincing before extending the hours suggested in this way in relation to the London referendum.

As the noble Baroness said, it will cost extra money. I have seen one estimate which puts it at around £0.5 million. I suspect that it would also disrupt the preparations which returning officers have to make for the election and to meet the challenge of running two elections on one day.

We should not consider the matter in isolation. We have in place a government review of electoral procedures which may well consider the issue of hours of voting, alongside a number of other issues. Surely it would be better to consider the whole issue of procedures and hours of voting in relation to voting generally rather than specifically in the case of just one election. We could spend £0.5 million more effectively in terms of public information about the nature of the referendum and the issues to be decided.

At heart, the issue that will most get people to the ballot box is the degree to which people in London feel it is important. That does not rest on whether there is an extra hour in the morning or evening, it rests on the importance of having a mayor and elected assembly in the city. That is what will get people to the ballot box, not this amendment.

Baroness Ludford

My Lords, the noble Lord, Lord Hunt, opened his remarks by referring to the inconvenience for tellers of having to stay at polling stations until 10 p.m. I venture to suggest that the convenience of tellers is not the issue. It is the convenience of voters that is the point. In a world, particularly London. where supermarkets are open all night, or certainly till late in the evening, it is strange that our democracy should lag behind in terms of convenience for citizens.

The noble Lord, Lord Hunt, made the point, if I did not misunderstand him, that if people think it important enough, they will make sure that they get to vote. I should have thought the more interested they are. the more they wish to vote and the more they wish to express opinions, the more frustrated they might be if they turn up, as my noble friend Lady Hamwee suggested, on their way to work and find polling stations do not open until 8 a.m.

The noble Lord may be right, there may be implications for future elections if voting hours are looked at. But this time we want the maximum turnout, as the Minister rightly stressed at numerous points, we want the maximum support and consent of Londoners and it is important that Londoners are able to vote in the greatest possible numbers. They may find it strange that they were not given the best opportunity to do so.

Lord Archer of Weston-Super-Mare

My Lords, I read carefully the Minister's speech on Second Reading. I wonder whether she will be able to tell us, when she comes to the Dispatch Box, how many people or what percentage of people voted between the hours of 9 p.m. and 10 p.m. in the general election. She kindly said she would look into that. During that speech she also said that she would tell us of other ideas that she had to ensure that people realised that this was happening and in particular the way in which proxies would be held. I only remind her of those matters because, rather than making a long speech saying that that is what I want, I shall assume that the answers will be in her speech.

5.30 p.m.

Baroness Hayman

My Lords, that is my cue. As has been said, I do not think there is any debate within the House about the ends with which we are concerned. We all wish to maximise participation in the referendum and in elections generally. We are talking ahout the means and the priority for resources as well as the most appropriate way forward.

We are committed to a major publicity campaign advertising the referendum and the ways in which people can vote. It will make clear the possibilities for proxy and postal voting. At an earlier stage of the debate the noble Lord, Lord Archer of Weston-Super-Mare, asked about the circumstances in which people will be eligible for a proxy or postal vote. I explained that those eligibilities had recently been made more extensive and easier and that we would be publicising the ability to claim a postal or proxy vote.

We shall incorporate that information in the leaflet that will go to every London household. It might amuse the noble Lord to know that my 18 year-old son received a birthday card this week from the local borough. On the back it said, If you are going to he away on 7th May"— I can assure the House that this relates to local elections; it is not anticipating anything— then you can apply for a postal vote or have someone vote for you. Simply call the above number and we will help you make the necessary arrangements". Earlier it said, You don't need proof of identity. It is hassle free". The publicity is therefore already starting in that regard.

I return to the undertaking that I gave at Committee stage that I would look carefully at the question of disruption, the difficulties and the voting patterns. Extending polling hours would disrupt local authority preparations and add significantly to the costs of the referendum, with no guarantee of higher turnout as a result. Furthermore, the amendment would not allow us to make best use of the resources we have available to maximise the opportunity for Londoners to vote.

Before I address the amendment in more detail, perhaps I can respond to the points raised in Committee by the noble Lord, Lord Elton, on a similar amendment concerning the arrangements for a debate on the draft secondary legislation arising under this Bill. I am sure that noble Lords will understand that the use of secondary legislation to make detailed provision in respect of electoral matters is well precedented. The secondary legislation to which the noble Lord referred in Committee will be subject to the affirmative resolution procedure. The House will therefore have an opportunity to debate and approve the secondary legislation concerning arrangements for the referendum.

I realise that that does not provide scope for amending the Order in Council, which was the main anxiety raised. However, I emphasise again that we have placed the draft secondary legislation in the Library for consultation and are happy to receive comments on that draft.

As the noble Lord, Lord Archer of Weston-Super-Mare, reminded the House, I said that I would look to see whether there was any available evidence of voting patterns and flows to see exactly when people cast their votes in elections. I have to report back that the data in London is limited. However, the figures we found indicated that in the last general election turnout in the three London parliamentary constituencies for which figures were available—the three Ealing constituencies—between the hours of seven and eight in the morning and nine and 10 in the evening numbers were below the average for the rest of the day. Taken together, something over 6 per cent. of those voting throughout the day did so between seven and eight in the morning and something over 5 per cent. between nine and 10 at night.

Noble Lords who have canvassed in elections will know—my noble friend Lord Hunt mentioned this—that the figures for the last hour of polling tend to reflect the efforts of canvassers to get people out to vote in the last hour, whatever hour that may be. That can happen whether the last hour is between eight and nine or nine and 10. It does not strike me therefore that that makes an overwhelming case for special arrangements to be put in place to extend polling hours in this instance, particularly when we consider the administrative costs of such a measure, its potential impact on other aspects of the referendum and local elections and the ready availability of absent votes for those who cannot vote at any other time. I must stress again that not all of those voting between seven and eight and nine and 10 do so because they cannot vote at any other time

We are seeking to hold an efficient combined poll. In drawing up our proposals we have greatly appreciated the hard work and co-operation of London local authorities and returning officers in preparing for the poll. Their views deserve our attention. Mr. David Wechsler, the chief executive of Croydon, in his capacity as chair of the Working Party of London Chief Executives on Electoral Matters—a group which represents all London returning officers—wrote to my honourable friend the Minister for London expressing his concern about discussion in Committee in relation to extending polling hours. In his letter he sets out a number of objections. In particular, he highlights the delay and higher costs that would arise. Subject to his agreement, I shall be happy to put a copy of that letter in the Library of the House.

Those are the considered views of the working group representing all returning officers in London. They are concerned, as are we, about extending polling hours. Amendment No. 2 would disrupt meticulous preparations and add significantly to costs for what we believe would be a limited return in terms of increased turnout. The chair of the Association of London Government, Mr. Toby Harris, also wrote to the Minister for London to express his concerns, again in relation to the increased costs and delay in getting out the results.

Local authorities calculated that increasing polling hours would lead to additional costs—hiring staff for additional hours and extending the rent of polling stations and count venues comes to about 8p per elector—of some £400,000 or £500,000. That represents an increase of almost 50 per cent. on the total budget that we have available for referendum administration. That money will have to come from somewhere. Local authorities and returning officers would rightly resist such a burden falling upon them. The only alternative would be to use the limited resources set aside for other aspects of the referendum, particularly the publicity. I do not believe that that would be desirable.

It is crucial—we debated this at great length at an earlier stage—that people are informed about the referendum, about the detail of the proposals and that they can come to informed conclusions on the issues on which they will be voting. I would be reluctant to cut back on that exercise of informing the population. As I said earlier, we intend our campaign to focus on reaching those who may need an absent vote; those who may not be able to get to a polling station whatever hour it is open; and those who may not be able to get there before seven in the morning because they would need to be there at six in the morning.

The noble Baroness, Lady Ludford, said that we have a 24-hour society. No extension will cover everybody's convenience in terms of personal attendance. That is why it is important to make the option of absent voting well known, so that there is a high turnout in that regard.

Lord Archer of Weston-Super-Mare

My Lords, perhaps the Minister will allow me to intervene. I apologise for not warning her that I would bring up this matter. She used the words "our campaign". I hope that it will be a campaign in which all sides of the House can join on equal terms, that it will not look as though it is a campaign being promoted by 10 Downing Street or by certain Ministers in the Labour Party in the Lower House and that those of us who are just as interested as they are will be allowed to express our views. We will not have the £500,000 to spend that the Minister mentioned.

Baroness Hayman

The noble Lord, Lord Archer of Weston-Super-Mare, tempts me to talk about campaigns and the effectiveness of the campaigning by individuals and parties as well as the Government. I should make it clear that the campaign about which I am talking involves informing people about the election taking place. It is factual, non-partisan campaigning. It is not campaigning for a yes or no vote or for a particular candidate. It is a campaign to inform people about the election which, I believe, is correctly government responsibility.

In that very limited, specific and non-partisan campaigning—I hope that a variety of individuals and groups will be involved in the referendum campaign as in the local government election campaign—I believe that we have made a correct assessment of where limited funds should best be applied. We have a fixed budget for the referendum drawn up, bearing in mind constraints on public expenditure. We have taken the view that the best use of available funds is to have a substantial absent-vote campaign. Such a campaign may also have valuable spin-offs for other elections, for example, for people who experience difficulty in attending polling stations. They may realise for the first time just how easy it is to obtain an absent vote and to apply for it in subsequent elections. That would do much more for extending democracy than simply a one-off extension of hours in this particular referendum.

On the broader issue, the Government are committed to improving access to democracy. Last week the Government launched a review of electoral procedures. The working party charged with carrying out the review includes representatives of central and local government and of the main political parties. In that context, clear recommendations will emerge on improving people's experience of participating in the democratic process. Some of the wider issues that have been brought to bear in this debate will be properly covered there. That is the proper avenue for those kinds of areas to be addressed. In view of what I have said, I urge the noble Baroness to withdraw her amendment.

Baroness Hamwee

My Lords, I take the point that work is being carried out on electoral procedures. With some reluctance, I shall not push for an alteration as there might be further alterations very close at hand in the pipeline.

The noble Lord, Lord Hunt, said that he had drawn the short straw in having to be outside a polling station between 9 and 10.00 p.m. It is an even shorter straw to have to run a committee room, trying to get people to continue working between those hours. That is my experience. But I shall volunteer for that. I do not discount the point about cost and hours. That could lead one to ask why in general elections and European elections polling hours are two hours longer. I note that the Minister understands the thrust of that point.

She said that the application is not hassle-free. It is not very difficult, but it has to be made early. I believe it has to be 13 working days before the election. I have checked rather quickly so I might be wrong, although I do not think so. On this occasion it will mean an application by 20th April. That is the Monday following the week in which Easter Monday falls. In other words, that will be the week after the Easter holidays. I also guess that it will fall within some school holidays. Those who are able to be away for Easter are likely to be absent until that weekend.

There is the hard work that the political parties will do besides the information published in the press. People are unlikely to catch up with the need to make an application until it is too late to do so. I was fascinated by the figures available from Ealing. They were 6 per cent. and 5 per cent.—11 per cent. overall. Some of those people may have voted at other times, but that appears to me to be far too large a percentage to discount. I hope that the expressions of concern raised at various stages of this Bill on this matter, even if they are not to have any effect on the conduct of the polls on 7th May, will feed into the work on the electoral arrangements in a constructive manner. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Baroness Hamwee moved Amendment No. 3: Page 2, line 30, at end insert— ("( ) Where the polls referred to in subsection (1) are taken on the same day registered electors may apply to vote by post or proxy at the referendum and the election on a single form."). The noble Baroness said: My Lords, this amendment refers to a related matter. It is a probing amendment regarding the application form to be completed by electors who apply for absent votes. The Minister has advocated the use of the absent voting procedure. The published forms ask if the applicant requires an absent vote either in general or for particular elections.

I raise the point because I understand that when the county and general elections coincided, there was some confusion. Two forms were required from voters, one for each election. It may be that the point was not considered early enough in the arrangements for the elections. I am sure the Minister will agree that it is important to make the application as easy and as straightforward as possible.

I can well imagine voters saying, "I have filled in that form". The proxy will go to the polling station or open the envelope for the postal ballot, and find only one ballot paper. I do not believe any noble Lords would want to see that situation. I hope that the Minister can give some assurances about necessary steps being taken, which I would not wish to see on the face of the Bill. Alternatively, perhaps she can give an assurance that if the box for the local government election is ticked, that refers to the referendum for London, if that takes place on the same day. I beg to move.

Baroness Hayman

My Lords, I hope that I can reassure the noble Baroness on this point. I understand her concerns. We would certainly not wish the circumstances she described to occur.

This amendment seeks to ensure that people can apply for a postal or proxy vote for the referendum and the local election on a single form. I hope to explain to the House why this amendment is unnecessary.

We have made quite clear in the secondary legislation in Part I, Schedule 2, paragraph 7(1) that anyone who applies for a postal or proxy vote for either the referendum or the local election will automatically be sent an equivalent postal or proxy vote to participate in the other poll, unless they specify that they do not want one. Therefore, there is no need for this amendment. If people apply for one or the other, they will get both. They need not of course exercise their vote if they do not wish to do so. But we are determined that no one should miss out on their chance to vote in both polls. That will be made clear.

As I said earlier on in talking about opening hours—I note the point that the noble Baroness made earlier about the timeframe for applying for postal and proxy votes—we hope that because people will he getting information about that well in advance of the poll at the same time as information about the referendum, it will encourage them to apply early on and in good time. With those assurances in mind, I hope that the noble Baroness will be able to withdraw her amendment.

Baroness Hamwee

My Lords, that reply is extremely helpful. I am sorry that I did not spot that detail in the draft of the secondary legislation, which I have read. It is the sort of document which causes one's eyes to glaze over a little. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish moved Amendment No. 4: After Clause 4, insert the following new clause—


(" .—(1) The Secretary of State shall appoint an independent Statutory Commission, which shall monitor the conduct of the referendum provided for under this Act, and shall, in the light of the referendum and of the referendums carried out under the Referendums (Scotland and Wales) Act 1997, draw up recommendations for the conduct of future referendums, having regard to the 1996 Report of the Commission on the Conduct of Referendums. (2) Any report containing recommendations under this section shall he laid before each House of Parliament.").

The noble Lord said: My Lords, in moving this amendment, I shall speak to Amendments Nos. 8, 9 and 10. Some noble Lords may recognise these amendments. I see the noble and learned Lord the Lord Advocate in his place. He will certainly recognise them. They are exactly the same amendments that I proposed to the Referendums (Scotland and Wales) Bill. I shall try to shorten my arguments although I notice a number of noble Lords in the House who were not present when I advanced them as regards the earlier Bill, including the Minister. As a new Minister is to answer me this time, I live in the hope that I may get a slightly more positive answer than I received from the Lord Advocate. However, the very fact that the noble and learned Lord is here suggests that he will ensure that the noble Baroness does not stray from the text.

We are moving towards the third referendum in less than a year, with the probability of more to come. I shall not go into the detail of whether referendums sit comfortably in our Westminster model. It is a model that has served us well over time and I am pretty sceptical about the use of referendums inside our model of parliamentary democracy. However, we know that the Government intend to have a number of referendums in the future. As their so-called "reform"—I prefer to say "change"—to the constitution is of a very piecemeal fashion, who knows what other piece they may decide to try to change? If they have a grand plan, they are certainly not telling us.

If we are to continue to have referendums, it really is time that we had a proper generic referendums Act. We should not conduct each referendum piecemeal. The noble Baroness would not get into problems such as those she encountered earlier this afternoon on the question in the referendum if she took my advice on board.

The Constitution Unit and the Electoral Reform Society established a Commission on the Conduct of Referendums in April 1996. Those two bodies are not naturally in my part of the political spectrum but, as I said in August, if we are to have referendums, I very much agree with the commission's conclusions. The commission's briefing paper states: The conduct of referendums should be entrusted to a statutory independent body, accountable to Parliament, in order to ensure maximum confidence in the legitimacy of the results. This could he a free-standing commission—a 'Referendum Commission'; or an Electoral Commission, if one were established. The responsibilities of an Independent Commission could include: advising on the wording of the referendum question: liaising with and funding campaigning organisations: the fair presentation of public information and equitable access to the broadcast media: and the organisation of the poll … A generic Referendum Act could establish an Independent Commission and a statutory framework for the efficient, fair and consistent conduct of referendums. Those matters which will be different in each referendum and are likely to he of Parliamentary concern could he the subject of primary legislation on each occasion".

I shall probably quote from that document once or twice again.

I stress that the commission's membership was by no means narrowly drawn. Perhaps I may mention a few of those who served on it. It was chaired by Sir Patrick Nairne; its vice-chairman was Dr. David Butler and, to take just three names at something like random, the membership also comprised the noble Baroness, Lady Gould of Potternewton; the noble Lord, Lord Holme of Cheltenham, and Mr. John Whittingdale, MP, from my party. The commission was broadly based and its conclusions were very clear. I do not think that those conclusions represented a minority view. I hope that the Government will give me some reassurance that they will address this issue.

When I raised such issues in August, I was told that I could not expect the Government to establish a commission in the time available between August and the holding of the Scottish and Welsh referendums. I was told that that was impossible; and that was more or less that. I have no doubt that the noble Baroness will say the same thing now, but I must advise her that I do not accept that argument now because the Government have had since last August to deal with the issue and to come forward with a more substantial and more positive reply than that which they gave then. I am afraid that the same argument simply will not do today.

It is interesting to note that if a proper Bill were introduced we could discuss then some of the issues that I raised in August. I am raising one or two of them again today, but I could certainly have kept the House going all evening (if I had chosen to do so) by tabling a series of amendments covering a variety of issues that should be properly addressed. As happened last time, the noble Baroness will have to bring forward orders to change the Representation of the People Act. As I said previously, you will only be able to understand those orders if you sit in the Library with a copy of the Representation of the People Act beside you and work your way through it. The orders will change legislation which Parliament passed and which was designed specifically for general elections with parties and candidates. That legislation is to be changed in a piecemeal way to meet the circumstances of referendums. That is not satisfactory.

An independent commission could address a number of issues. Indeed, paragraph 47 of the report outlines them. It refers to: advising on the wording of the question; allocating funding, to campaign groups; liaising with and acting as moderator between any campaign groups; acting in an ombudsman rôle to deal with any complaints; monitoring balanced access to the broadcast media; providing public information, including a balance statement of the opposing arguments; supervising the organisation for each polling station; counting and declaration arrangements".

All of those matters could be dealt with by the commission. That is the first part of my argument.

The second part of my argument is that a generic Act would mean that guidance could be drawn up. Guideline No. 1 states: Guidance should be drawn up dealing with organisational, administrative and procedural matters associated with holding a referendum. Established guidelines should include fixed rules for some matters (for example, the organisation of the poll, the election machinery and the count). For other matters, on which it is impossible to determine rules in advance (for example. wording the question), the guidance should state how a decision should be reached".

It is not an elegant way to conduct a referendum if part of the argument here and in another place relates to what the question should be. Having sat through the arguments on why there should be two questions in the referendum Bill relating to Scotland which the Government advanced against amendments which some of us tabled to provide that there should be only one question, it was most interesting to listen to the Government turning that argument on its head in relation to London. A commission could sort out just such issues. They would therefore no longer be matters of party argument on the Floor of the House with decisions having to be made in the Division Lobbies and, dare I say it, the Government being defeated. My suggestion would hugely help in any future referendums which the Government intend to hold.

I am not asking for such an electoral commission to be set up; I am using this amendment, as I used the same amendment in the summer, as a trigger to start the process. I am saying, "Let us have a commission that can inspect how the London referendum works. Let us have a commission that can look back at how the Scottish and Welsh referendums worked and then propose to government—and government can come to Parliament with—a generic Bill before we have the next referendum". I believe that that will be on the day that Tony and Gordon agree that we ought to join the single currency. I hope that we shall have a generic Act before then and that we shall not have to go through the same procedures then as today.

I turn now to my three other amendments. They would not need to be discussed if we had an Act such as I have suggested. Amendment No. 8 is straightforward. I raised the same argument last time and I received assurances, but I am afraid that I shall have to raise the same points again and get assurances again that no public money will be paid to any organisation established to campaign for either side on the question and that no civil servants shall engage on the side of—I presume—the Government's case in any referendum. I received perfectly satisfactory reassurances from the noble Lord, Lord Sewel, last time and I hope that I shall receive such assurances this time, but if we had a generic Act, I would be saved asking the same questions every time.

The same point is made on broadcasting. Guideline No. 17 states: A balance should he maintained between the 'Yes' and 'No' viewpoints rather than between the different political parties. Broadcasters should be encouraged to provide a limited amount of airtime for setting out the arguments for each option in the referendum. The content of such broadcasts would be the responsibility of any formally recognised campaign organisations. In the absence of such organisations the Independent Commission should appoint production companies to produce such broadcasts. Party political broadcasts should not normally be transmitted during the referendum campaign". I would be grateful if the noble Baroness could provide me with assurances in that regard.

In a contribution from the noble Baroness a few moments ago I noted that the Government had set in train a review of electoral procedures. I would be perfectly willing to withdraw my new clauses if I received an assurance from the Minister—normally, the Government are teased about reviews—that the whole subject would be seriously considered and that the Government intended to act upon it; otherwise, I have to say that the procrastinating reply that I received in August will not do this evening. I beg to move.

6 p.m.

Baroness Hayman

My Lords, these amendments address important issues about the conduct of the referendum. I hope to be able to reassure the House as to how we intend to proceed and make clear to the noble Lord, Lord Mackay of Ardbrecknish, that these amendments are unnecessary. Amendment No. 4 seeks to establish an independent statutory commission which would monitor the conduct of the referendum and make recommendations as to the conduct of future referendums. I was not present for all of the prolonged discussions on the referendum Bills for Scotland and Wales, but I am well aware of the keen interest that the noble Lord has taken in these matters. I hope that he will not be too disappointed when he discovers that I shall not respond any more favourably to his amendment than did my noble friends at that time.

The noble Lord is right to anticipate that the Government cannot accept Amendment No. 4 because of some practical problems concerning the London referendum. An independent commission would need careful preparation: a clearly defined remit and so on. No doubt there would be pressure for inter-party consultation on its role. It would not be possible to have such arrangements in place in time for a referendum on 7th May. Any delay in the date of the referendum would lose the advantages of a combined poll, add about £3 million to the costs and diminish the advantage in terms of turn-out both for the local elections and the referendum.

I should like to make clear that the Government's position does not depend simply on the issue of timing. My noble and learned friend the Lord Advocate does not need to be here to keep me in line on this matter. I totally agree with the stance that he took during Committee stage on the Scotland and Wales Acts that the Government see no need to set up such a commission. Each referendum is different. There are bound to be different arrangements appropriate to referendums of different scale. Current arrangements whereby Parliament makes specific provision for each referendum have served us well in Scotland and Wales and I believe will do so in London.

I do not agree with the noble Lord that his amendment would obviate the need for debate on specific issues. The prolonged debate on the wording of the question in this Bill shows that Parliament takes a keen interest in matters such as the wording of a proposition in a referendum. The answers to issues such as how many questions should be on a ballot paper or their wording will depend not on generalities but the issues in the particular referendum in question. It is quite right that Parliament should have the opportunity to consider the legislation which provides for each referendum, to debate the detail and press the Government to explain their proposals. I do not believe that this amendment should be accepted.

I turn to the amendments relating to broadcasting. We believe that these are unnecessary given that all broadcasters are obliged by law to maintain due accuracy and impartiality in reporting any matters of political controversy or current public policy. I do not believe that it is appropriate to legislate in this Bill on this matter. To add further provision on top of the long standing general obligation or to give a new role to an independent commission would serve merely to muddy the waters. The broadcasters are answerable to their independent regulators and the courts for satisfactory compliance with their duty to maintain due accuracy and impartiality. I am confident that the existing framework of regulation will be quite adequate to ensure that impartiality is respected during this referendum campaign.

Amendment No. 10 would require the independent commission to monitor the publication and distribution of campaign material. Amendment No. 8 would prohibit the use of public funds to fund campaign organisations. We have made it absolutely clear that we do not intend to provide any state aid to campaign either for or against the proposal. I am happy to repeat that undertaking to the House today. We do not believe that it is feasible to try to identify umbrella campaign organisations as potential candidates for financial support. If people wish to oppose or campaign in favour of our proposals they are free to do so. But the Government will spend their money on ensuring that people are fully informed about the referendum so that they are able to exercise their right to vote. Government-funded publicity will be factual and neutral. A summary version of the White Paper will be distributed to every household and there will be other initiatives to ensure that everyone in London is aware of the issues. Information about absent voting in particular will be integral to the campaign.

The creation of an independent commission is not necessary to ensure that the proposed referendum on the GLA is both fairly conducted and effective. Obviously, campaign material produced by organisations either pro or anti the proposition put by the Government will not be impartial. Provided that it is within the law—for example, that it is not obscene or libellous—its content is and should remain a matter for those who produce it. Moreover, I see no reason significantly to delay the holding of this referendum for which the people of London indicated their support at the general election when two important fair and successful referendums have already been conducted during the course of this Parliament.

We do not believe therefore that these amendments are necessary. We have made our position quite clear on questions of campaign funding and will follow the precedent set in Scotland and Wales.

As far as concerns the specific issue of Civil Service conduct, the Cabinet Office will publish clear guidelines well in advance of the referendum. They will be based on the normal rules which apply to civil servants as respects political impartiality. Similar guidelines were in place in Scotland and Wales and I believe that they proved to be wholly sufficient for the task.

I hope that I have reassured the House that the provisions in place will ensure that the referendum is conducted in a fair and proper manner. I urge the noble Lord to withdraw his amendment.

Lord Mackay of Ardbrecknish

My Lords, I am grateful to the noble Baroness for the assurances that she gave about the Civil Service, funding and broadcasting. I expected the assurances as I received them when we discussed the Scotland and Wales Bills. I am grateful to her for giving them to me on this Bill.

However, I am not nearly so happy with the answer provided by the noble Baroness to Amendment No. 4. In my original contribution I said that the Government had had since last August to prepare for an independent statutory commission if that was what they agreed to. It seems perfectly clear—perhaps a little clearer from the reply of the noble Baroness than in August—that the Government have no sympathy with the idea of either an independent statutory commission for referendums or a generic referendums Act. I believe that an Act would be helpful. Of course, for each referendum a piece of primary legislation would be needed, but it would be a small piece of primary legislation that simply slotted into the generic Act. That Act would govern all other issues that the orders govern under the Representation of the People Act. The argument of the noble Baroness could be applied to the Representation of the People Act. Each time there was a general election another series of rules could be brought forward. We have not gone down that road, but have used a more sensible method.

I am not always, although frequently, persuaded by my own arguments, but on this occasion I am persuaded by the arguments in the report of the commission. The more I read them the more persuasive I believe they are. I shall not be put off quite as readily as I was in August. I shall demonstrate my seriousness about this matter by asking for the opinion of the House. Whatever the outcome, next time the Government propose a referendum I sincerely hope that they will between now and then take the kind of steps that the commission has proposed. I wish to test the opinion of the House.

6.10 p.m.

On Question, Whether the said amendment (No. 4) shall he agreed to?

Their Lordships divided: Contents, 33; Not-Contents, 116.

Division No. 2
Bowness, L. Kenyon, L.
Broadbridge, L. Kilmarnock, L.
Burnham, L.[Teller] Mackay of Ardbrecknish, L.
Carnock, L. Marlesford, L.
Charteris of Amisfield, L. Mayhew of Twysden, L.
Coleraine, L. Merrivale, L.
Cope of Berkeley, L. Milverton, L.
Dacre of Glanton, L. Monro of Langholm, L.
Dixon-Smith, L. Moson, L.
Donegall, M. Monteagle of Brandon, L.
Feldman, L. Naseby, L.
Granard, E. Ryder of Wensum, L
Halsbury, E. Strathclyde, L.[Teller.]
Harding of Petherton. L. Strathcona and Mount Royal, L.
Hunt of Wirral, L. Sudeley, L.
Jeffreys, L. Thomas of Swynnerton, L.
Acton, L. Gould of Potternewton, B.
Addington, L. Hamwee, B
Allenby of Megiddo, V. Hardie, L.
Amos, B. Hardy of Wath, L.
Archer of Sandwell, L. Haskel, L.
Ashley of Stoke, L. Hattersley, B.
Barnett, L. Hayman, B.
Bassam of Brighton, L. Hilton of Eggardon, B.
Beaumont of Whitley, L. Hollick, L.
Berkeley, L. Hollis of Heigham, B.
Borrie, L. Howie of Troon, L.
Brooke of Alverthorpe, L. Hoyle, L.
Bruce of Donington, L. Hughes, L.
Burlison, L. Hughes of Woodside, L.
Carter, L.[Teller.] Hunt of Kings Heath, L.
Cledwyn of Penrhos, L. Irvine of Lairg, L.[Lord Chancellor.]
Clinton-Davis, L.
Currie of Marylebone, L. Janner of Braunstone, L.
David, B. Jay of Paddington, B.
Davies of Coity, L. Jeger, B.
Davies of Oldham, L. Jenkins of Putney, L.
Desai, L. Kennedy of The Shaws, B.
Dholakia, L. Lester of Herne Hill, L.
Diamond, L. Levy, L.
Donoughue, L. Lockwood, B.
Dormand of Easington, L. Longford, E.
Evans of Parkside, L. Lovell-Davis, L.
Falconer of Thoroton, L. Ludford, B.
Farrington of Ribbleton, B. McIntosh of Haringey, L. [Teller.]
Fitt, L.
Gallacher, L. Mackie of Benshie, L.
Gilbert, L. McNair, L.
Goodhart, L. McNally, L.
Gordon of Strathblane, L. Maddock, B.
Mallalieu, B. Russell, E.
Meston, L. Serota, B.
Milner of Leeds, L. Sewel, L.
Mishcon, L. Simon, V.
Molloy, L. Simon of Highbury, L.
Monkswell, L. Stallard, L.
Montague of Oxford, L. Stoddart of Swindon, L.
Morris of Manchester, L. Strabolgi, L.
Murray of Epping Forest, L. Symons of Vernham Dean, B.
Nicol, B. Taverne, L.
Peston, L. Thomas of Gresford, L.
Pitkeathley, B. Thomas Of Macclesfield, L.
Ponsonby of Shulbrede, L. Thomas of Walliswood, B.
Prys-Davies, L. Tope, L.
Puttnam, L. Turner of Camden, B.
Ramsay of Cartvale, B. Walker of Doncaster, L.
Randall of St. Budeaux, L. Wallace of Saltaire, L.
Razzall, L. Watson of Invergowire, L.
Rea, L. Wedderburn of Charlton, L.
Redesdale, L. Whitty, L.
Rendell of Babergh, B. Williams of Crosby, B.
Renwick of Clifton, L. Williams of Elvel, L.
Richard, L.[Lord Prily Seal.] Williams of Mostyn, L.
Rodgers of Quarry Bank, L. Winchilsea and Notingham, E.
Rogers of Riverside, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.20 p.m.

Clause 6 [Exclusion of legal proceedings]:

Lord Mackay of Ardbrecknish moved Amendment No. 5:

Page 3, line 11, at end insert ("except in circumstances where different guidance has been received by the counting officers in one or more areas on the conduct of the count").

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 6 and 7. The amendments relate to Clause 6 which provides:

"No court shall entertain any proceedings for questioning the number of ballot papers counted or votes cast as certified by the Chief Accounting Officer".

The clause was contained in the Scotland and Wales legislation. My noble and learned friend and fellow clansman Lord Mackay of Drumadoon probed the Government on this point. We received what at the time was a satisfactory reply from the Lord Advocate.

Noble Lords

What has changed?

Lord Mackay of Ardbrecknish

My Lords, the change is that with the Welsh referendum some serious problems arose. They did not arise on the "No" side; they arose on the "Yes" side. The matter was drawn to our attention by no less an organisation than the Caerphilly Constituency Labour Party, which expressed some concern—I have to say in total privacy—and sent letters which, unfortunately, winged their way outside the sacred walls of the Caerphilly Constituency Labour Party to people such as me.

The letter from the secretary, Mr. Lamb, indicates a number of concerns that the constituency Labour Party had about the conduct of the count. The clause relates to the conduct of the count. There were a number of problems. It was concerned, for example, about the information it was given; about where the ballot boxes came from; about the list; and about the way the count was conducted. Although the letter does not say it, I understand from other papers it was concerned that it could not see the official mark.

I suggested in August, in order to be helpful to the Government, that I thought the day of official marks was over and done with. The Government told me that it was not and that they were important. So, they were important. The scrutineer should have been able to see them. The whole question of who were the scrutineers and whether there were enough of them was part and parcel of the same problem.

The Caerphilly Constituency Labour Party was in the difficult position of having that concern in the constituency of the Secretary of State for Wales. It recognised that and its letter stated: Of paramount importance was the fact that the implication of what in our view contravened the Representation of the People Act 1949, 1969 and 1983, and the Referendum Act should not become a formal issue because of our MP's position as Secretary of State for Wales. Ultimately the buck stops at the Welsh Office, and we realise that politically we have to be extremely careful because of Ron's position there". I appreciate its concern for "Ron's position", but the issues it raised were important: the number of polling agents; the boxes and verification not being announced; the counting officer would not allow polling agents to know which were "Yes" and which were "No" allocations; the design of the ballot paper made it almost impossible for polling agents to see official frank marks, to the extent that even the top paper was invariably covered by a counting officer's hand; some supervisors allowed their counting assistants to count haphazardly, with ballot papers being turned face down, upside down—particularly regarding potential spoils—no announcement of the count proper being started in part was made; polling agents were not allowed to check the final bundles; and there was inordinate delay in announcing the result. Out of 145 boxes, after the first 50 boxes or so had been counted, five out of a total of 10 teams were taken off verification, thus prolonging the count.

I do not want to prolong my remarks, but those matters are all of concern. The biggest concern was that doubts arose that evening about how to count papers which were not marked with a cross. It was easy enough when in answer to: Do you agree that there should be a Welsh Assembly? people put "Yes" or "No"instead of a cross. That was clear. The problem arose with "I do not agree" with the answer "Yes" or "No", because there was a double negative. There was some doubt about that.

During the course of the count the officers in that counting station asked for and received advice about what to do. It was advice which was not transmitted to everyone judging at all the counts throughout Wales. That is a serious point, which is why I tabled Amendment No. 5 which provides that one should not be able to go to court unless:

different guidance has been received by the counting officers in one or more areas on the conduct of the count". Amendment No. 6 relates to observers admitted to the count not receiving full access. If the Caerphilly Labour Party had not been in the embarrassing position of having the Secretary of State for Wales as its MP—it is doubly embarrassing because that portion of the Welsh Labour Parzty seems to have been in favour of the "Yes" vote—I suspect that the matter might have been taken further. It could not have been taken any further because of the clause in the Scotland and Wales legislation.

I am concerned that if something like that arose with the London referendum, no one aggrieved who believed that there was a legitimate point to be made would have recourse to the courts if your Lordships pass the clause unamended. With that explanation of why I tabled the amendments—as a fall-back—I suggest leaving out the clause altogether so that people could challenge in the courts on any grounds, not just the two I exempt. I beg to move.

The Solicitor-General (Lord Falconer of Thoroton)

My Lords, I hope that I shall be able to establish that the concerns of the noble Lord. Lord Mackay of Ardbrecknish, are misplaced. As he pointed out, the purpose of Clause 6 is the same as that of an identical clause in the Referendum Act 1975, the Scotland and Wales Act 1978 and the Referendums (Scotland and Wales) Act 1997. The aim of the provision is to ensure that the Government can respond without delay to referendum results.

As my noble friend Lady Hayman explained in Committee, the clause is designed to prevent any, save serious, challenges to the certification of votes or ballot papers under the Bill. Any challenge which was to be made in court would be time-consuming. So long as there was an application before the court, there would be considerable doubt about the fate of the legislation establishing the GLA. In effect, the position would be politically frozen until such a court challenge were brought to an end. The provision is designed to exclude all, save serious, challenges to the certification of votes or ballot papers under the Bill.

We recognise that the clause does not prevent all possibility of legal challenge in connection with the certification of referendum votes. The courts are rightly jealous of their jurisdiction, and look carefully at provisions which seek to oust their jurisdiction. There is a substantial body of case law, including an important decision of this House in its judicial capacity, concerning the proper interpretation of such statutory provisions.

Should any legal proceedings be brought challenging the certificates of the chief counting officer, or a counting officer, it would be for the courts to decide, having regard to the case law and the particular circumstances of the case, whether a challenge could be entertained in the light of Clause 6. A balance is being struck between the clause stopping challenges which are not serious, but with the court having power to investigate those challenges which might be serious.

I have taken some trouble to explain what the clause means, because I can see that, on the face of it, its terms are all-embracing. It may be helpful if I remind your Lordships that there is a presumption that Parliament legislates in the full knowledge of the existing state of the law. Clear and express provision would be needed in an enactment to over-rule the effect of the case law to which I have just referred.

It is therefore within the conventions for a well-precedented clause such as this one to be enacted in the knowledge that it is not the end of the matter. Like all other similar provisions, it is subject to the construction of the courts and the intervention of the courts in those cases that the courts think are serious enough.

The noble Lord, Lord Mackay of Ardbrecknish, appeared to suggest that he was satisfied with the answers that my noble and learned friend the Lord Advocate had given to the noble and learned Lord, Lord Mackay of Drumadoon, because he introduced the amendments on the basis that things have changed because of the position in Wales. The noble Lord, Lord Mackay of Ardbrecknish, identified a number of matters which he said gave cause for concern. The most important one that he identified being advice given on how to deal with something other than a cross in relation to those who wanted to vote "No".

The position, as the Secretary of State said, is that there were 22 counting areas in Wales. In relation to the problem of a cross rather than a "No" or a "No" rather than a cross—I cannot remember which—the chief counting officer gave advice which was disseminated to 20 out of 22 areas on the night. In respect of those two areas where it was not disseminated there may have been a few hundred "no" votes which were not recorded in accordance with the advice given by the chief counting officer. It would not therefore have affected the result. Moreover, it would have been most unsettling for there to be a court challenge that would have not made any difference.

In my respectful submission that is a very good example of why one needs a clause like this. If there are more serious complaints about the conduct of the Welsh referendum, the Scottish referendum or any other referendum, including this one, to which this clause applies then, as I have made clear, this clause would not prevent the courts considering whether or not such a challenge should be considered by those courts. I believe it is a sensible balance, I believe it permits the matter to be dealt with quickly and efficiently but gives the court a residual jurisdiction in relation to serious cases.

Perhaps I may turn to the particular amendments proposed and deal with them very briefly. First, with Amendment No. 5 the noble Lord, Lord Mackay of Ardbrecknish, seeks to insert the words, except in circumstances where different guidance has been received by the counting officers in one or more areas on the conduct of the count". That, in my respectful submission, is an ill-conceived suggestion for an amendment. The effect of it will be to make the courts consider that the only circumstances in which they can intervene is where different guidance has been received by the counting officers in one or more areas. On the basis of the speech the noble Lord made that is the last thing that he would want. Moreover there may well be good reasons in relation to the London count as to why different guidance should be given in one area as opposed to another.

I take just one example. The City of London. which is one of the areas for the poll in Greater London, will not be having local elections. It would therefore be sensible that different instructions or guidance be given there as to how the poll should be conducted in other areas where there will be local elections.

Having said that, I would say that it is my hope that the chief counting officer in the London referendum will issue guidance to counting officers well in advance of the count and that he will consult with experienced returning officers before doing so. Moreover, if we are talking about guidance aimed at ensuring consistency in the way in which doubtful ballot papers are to be judged, clearly I would hope that the guidance given will be the same for all boroughs.

More than that I cannot say without entering into matters which will, under this Bill, be the responsibility of the chief counting officer. But noble Lords can be reassured that we have the problems well in mind. It is on that basis that I urge the noble Lord to withdraw this first amendment.

As to the second amendment, the particular circumstance which he suggests should be an exception to Clause 6 is where observers admitted to the count have not received full access to scrutinise all aspects of the count as they are entitled to do under the Representation of the People Act. The aim expressed in this is an aim with which I am fully in agreement. We have provided in the draft secondary legislation currently available in the Library of the House for the appointment of observers to scrutinise both the poll and the count. We have already included in it a provision which is absent from previous referendum legislation enabling counting observers to be present at the dispatch and receipt of postal ballot papers. They will, of course, also be present at the count itself and, in general, all those things which are normally required to be done in the presence of counting agents at an election are, at the referendum, to be done in the presence of these specially appointed counting observers.

Again, however, inserting the exception, will have the effect of limiting the effects of the circumstances in which the court would intervene to those referred to in the exception rather than to those cases which the court itself determines are sufficiently serious to justify intervention.

There are three short points in relation to the appointment of observers. First, if organisations campaigning for a particular referendum outcome want to have counting observers they must invite the counting officer to appoint their representatives. I understand that in some cases organisations in Wales failed to respond to counting officers' requests for nominations with the result that they were not represented. Therefore, it is for each campaign side to ensure that they have made the request to the counting officer to have representatives present.

Secondly, in view of the terms of the proposed amendment, it seems to me worth reminding your Lordships that there is nothing even in ordinary election law which says that every counting agent has the right to observe everything. Electoral legislation says that counting agents are entitled to attend the count which should be arranged so that they have all reasonable facilities to observe the proceedings and that certain things must be done in their presence if they have attended for that purpose.

The present clause is only apparently an all-embracing exclusion of legal proceedings. For the reasons I have indicated Amendments 5 and 6, far from having the effect of extending the circumstances in which the court can intervene, will, I believe, limit them.

Finally, if what the noble Lord, Lord Mackay of Ardbrecknish, described as his fall-back position were adopted—namely, to leave out Clause 6 altogether—there would not be the balance between preventing non-serious applications, but on the other hand leaving the court with a residual discretion. I therefore ask whether, upon reflection, the noble Lord will consider withdrawing all three amendments.

6.30 p.m.

Lord Mackay of Ardbrecknish

I am grateful to the noble and learned Lord for his detailed reply. I have listened to it with great care and I can divide it into two parts: one part is the same reply we received from the noble and learned Lord the Lord Advocate in August, which satisfied us at the time, that the courts would still have a role in certain circumstances. I am pleased to have a repeat of that assurance. On the second part, which really arose from the problems in Caerphilly, it has been useful to have on record what really ought to have been done. I hope that similar problems will not happen for any local Labour parties in London at the referendum on London.

In trying to keep my remarks short I omitted to say that another of the complaints was that the observers were not allowed into the postal vote part. I was therefore delighted with the assurance from the noble and learned Lord that it would be clear that observers will be able to attend the postal vote, sending out and opening, as they do at General Elections. I thank the noble and learned Lord for that assurance.

It is an interesting point. The noble and learned Lord suggested to me that in Wales it would not have made any difference. I do not think that is the point. These things cannot be done by looking backwards. Nobody knew that it would make no difference. Indeed, a lot of the problems in Caerphilly arose because the local Member of Parliament, the Secretary of State, declared that it was the 6,000 majority in Caerphilly that actualy delivered the "yes" vote for his party in Wales by a margin of 6,700. How he actually knew that that was the case is quite hard to decide, given the fact that it was a bigger area. But never mind; he said that.

I know that I will be accused of being theoretical but let us assume for a moment that it had been even closer in Wales. Than I think the importance of the points made by the local Labour party there are underlined. There should not be any doubt about the result. It is interesting that the story started in a Scottish newspaper. I suspect that the Welsh newspapers did not want to touch it for a variety of reasons. However, when the Scotsman started the story, it raised very serious issues which deserved to be aired both in the press and in your Lordships' House.

The noble and learned Lord will be pleased to hear that I accept his assurances. I hope that the words which he spoke on the two specific issues will be heeded. I am grateful to him for his remarks about postal votes. I am persuaded by the noble and learned Lord's argument about the general principle and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 6 to 10 not moved.]

Clause 7 [Functions of the Local Government Commission]:

Baroness Hamwee moved Amendment No. 11:

Page 3, line 26. at end insert ("and ( ) specifying the electoral systems for the purposes of the election of members of any assembly and of any separately elected mayor established following the referendum held by virtue of Part I").

The noble Baroness said: I return to the issue of the electoral systems to be used in the elections, if there are to be elections, following the referendum.

At the last stage, we approached this matter in the context of the powers of the Local Government Commission and my noble friend and I realised that we had concentrated particularly on the systems to be used for the election of members of the assembly. I shall use this occasion to put on record our concerns about ensuring the fairest systems, both for the election of the assembly members and also for the directly-elected mayor, if there is to be one.

It may be that the Minister will tell me that since the direction to be given under Clause 7 will specify the number of electoral areas and the number of members, that direction cannot be given unless full consideration has been given to the electoral system to be applied. The need to reflect the size, cultural diversity and general differences across London needs to be recognised and I believe that a proportional system argues for quite large constituencies in order that that proportionality can be reflected.

For example, if the constituencies for the London authority are based on two or three boroughs, there would be problems of fairness because of the different sizes of the London boroughs. I do not choose the example of a constituency coterminous with any London borough because I believe that the Government have ruled that out.

As regards the mayor, it is important that voters are able to express their full preferences; in other words, to go on voting until they have exhausted their preferences. That may mean voting all the way down a list of eight or 10 candidates. As I have observed before, among other things, it gives one the opportunity to register who is one's least favourite candidate by putting him at the bottom of the list.

More important, a fully preferential system allows everyone to have the opportunity to vote for the winner and to generate something of a feeling of ownership of the result. Even if one's preference for the eventual winner is half way down the list, one has, at least to some extent, signed up to that candidate.

In addition, it does not require the voter to make any tactical decisions. Genuine preferences can be expressed all the way down the list.

If the voting system is first-past-the-post, to which we are all so accustomed, it will be entirely possible, given the large number of candidates, for the winner to have the support of a very low proportion of electors. That would be an undesirable outcome. The system to which some people have pointed which is in between, known as the supplementary vote, allows, as I understand it, only two choices. Of course that is a little fairer. It allows a little more expression of preference. But it is more complicated than simply voting one's way down a list. It means that one cannot put one's least favourite candidate at the bottom. It means that one must exclude all but two of the candidates in voting. If the position is that there are two clear favourites in the campaign, voters will have to guess which of those two is most likely to do well; in other words, such a system would not achieve the involvement of electors in the way that other systems may do. I beg to move.

6.45 p.m.

Baroness Hayman

My Lords, the noble Baroness, Lady Hamwee, has returned to the discussion which we had in Committee on the basis that the Local Government Commission should be able to make recommendations on the electoral systems to be used both for the mayor and for the assembly. I accept her point that we dealt mainly with electoral systems for the assembly at an earlier stage and that the argument applies to both.

Perhaps I may take the opportunity to restate why the Government find unacceptable the argument that the commission should have that responsibility. I understand very clearly that the noble Baroness and her party feel strongly about electoral systems. She made those views clear in proposing the amendment today. The Government do not dispute that that is a crucial issue for the assembly and the mayor. In fact, in the Green Paper New Leadership for London, we asked seven separate questions about electoral systems and we are now spending considerable time and effort analysing consultation responses to that Green Paper. We shall set out in the White Paper proposals, after looking at the results of the consultation, as to how the mayor and assembly should be elected. I suggest to the House that the results of that consultation, the details of the electoral system, will be a vital piece of the jigsaw which adds up to people's understanding of the proposition put forward in the referendum.

But this amendment would devolve important questions of policy to the Local Government Commission, asking it to consider issues which are far beyond its remit. The commission is an independent body which advises on boundary issues. There is no case for asking that commission to make recommendations on how the mayor or members of the assembly should he elected. We have said that we shall set out clear proposals on how the election should be conducted, and that quite rightly, the commission will then be asked to provide expert and independent advice on the technical framework necessary to put that policy into practice. That is the right way round. The commission should not be asked to make recommendations beyond its remit on policy issues.

As I said to the House at an earlier stage, such amendments would make it nearly impossible to write the White Paper. If the commission were to be asked to make recommendations, presumably it would not be acceptable for the Government to pre-empt those recommendations by publishing their own proposals on electoral systems in the White Paper. In turn, that would reduce clarity and certainty as to the basis for the new assembly.

In that case, the people of London would be forced to vote in the referendum without having a clear idea about how the mayor and assembly would be elected. That is not good for democratic choice and I do not believe that it is good for informing clearly and specifically on the Government's proposals.

How the mayor and assembly will be elected are very important issues. I do not dispute that for a moment. However, we believe that they are integral to people having a clear understanding of the proposals which we are putting before them. Therefore, I do not believe that there is a case for asking the Local Government Commission to make recommendations on electoral systems. Such central policy should and will be addressed in the White Paper. On that basis, I urge the noble Baroness to withdraw the amendment.

Baroness Hamwee

My Lords, I thank the Minister for her response. Of course, I accept the difficulties inherent in the amendment as put forward. The noble Baroness has indicated her understanding of our desire to get on record our concerns about the election of the mayor, as well as the assembly with which we dealt last time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

In the Schedule:

Baroness Hamwee moved Amendment No. 12:

Page 6, leave out lines 3 to 7 and insert— ("The Government propose the establishment of a Greater London Authority made up of an elected assembly and a separately elected mayor, both to be elected by Londoners. Question I: Are you in favour of an elected assembly? Put a cross (X) in one box:

Question 2: Are you in favour of an elected mayor? Put a cross (X) in one box:

The noble Baroness said: My Lords, I spoke to this amendment when moving Amendment No. 1. I beg to move.

On Question, amendment agreed to.