HL Deb 01 July 1998 vol 591 cc671-97

3.8 p.m.

Report received.

Clause 2 [Membership]:

Lord Simon of Glaisdale moved Amendment No. 1:

Page 2, line 14, leave out subsection (7).

The noble and learned Lord said: My Lords, in moving Amendment No. 1, perhaps I may speak also to Amendment No. 24 which is grouped with it and raises a similar point.

Amendment No. 1 seeks to leave out subsection (7) of Clause 2. I move to leave it out because it is unnecessary. It merely states what the existing law would do without it. All the amendments I ventured to put on the Marshalled List have the same object of eliminating unnecessary provisions and thus shortening an already unwieldy Bill. That being so, perhaps I may give, as a background to all those amendments, what has been happening to the statute book.

In 1975, when the Renton Committee on the preparation of legislation considered the state of the statute book—I am pleased that the noble Lord, Lord Renton, has put his name to the amendment—it drew attention to the prolixity of the statute book. It then ran to three volumes of Public and General Acts. Within 10 years that had increased to five volumes, despite what the Renton Committee had said. There was then the ingenious idea of making fewer volumes by putting them in a bigger format. That was extremely inconvenient for those who had bookcases to fit the smaller format. However, that was done and it reduced the number of volumes from five smaller ones to three larger ones. That was in 1987. But the matter did not stop there. By the following year there were not merely three but five larger ones and since then there have been four or five in each year. So I think your Lordships will agree that, as an amending Chamber, your Lordships have a parliamentary responsibility to do all you can to eliminate unnecessary provisions which merely go to swell the statute book.

Perhaps I may add this. That is only the Public and General Acts—primary legislation. Secondary legislation runs to twice as much as the primary. In fact, such is the volume that the Stationery Office has not managed to publish all the volumes of any year since 1995. For 1996 the first part of the year has been published. That is six volumes, so there are likely to be a dozen volumes in that year. Nothing has been published since.

This amendment turns on a point of law—I hope your Lordships will bear with that—and, I am afraid, a rather recondite point of law concerning corporations aggregate. I do not think that in the end your Lordships will be concerned with the point of law, which in any case is not really a suitable subject for Division in the House. Indeed, I have taken it up with the noble Lord, Lord Williams, who has dealt with it with his usual courtesy and promptness. However, I think that your Lordships will not, as a result of his latest letter, be concerned with an argument that the provision which is sought to be excluded does other than state the existing law. I see the noble Lord nodding and so I shall proceed on that basis. I know that he has an alternative argument with which I shall deal in due course.

Clause 1(2) states: The Assembly shall be a body corporate". Since it is more than a one-member assembly, that constitutes a corporation aggregate. It is a quality of corporations aggregate that the decision of a majority binds the minority. Perhaps I ought to try to make that good by reading from the classic book on the subject, Grant on Corporations. The chapter is headed "Majority". It states: The principle has been already laid down, that a corporation acts by the majority, or that the will of the majority is the will of the corporation, and binds the minority". It expands on that. The next paragraph states: The rule of acting by the majority is so fully established as a principle of corporation law". It goes on to state: Subject, then, to the foregoing remarks, and to the further restriction … the will of the majority binds the whole body, such will being in all cases collected at a corporate assembly duly constituted, and not from the aggregate of the assents of the corporators obtained separately and apart, for that would not be a corporate act".

Since the will of the majority expressed in a meeting binds the minority, there is no need at all to say that a vacancy does not invalidate the proceedings; nor, what is sought to be removed by Amendment No. 24, that a disqualification does anything different. It follows that the provision is unnecessary as a matter of law. If it were not there, the law would do itself what the subsection does.

However, when I took the matter up with the noble Lord the Minister his first reaction—an evading action—was that we were concerned with powers, vires, not with existence. That had always of course been the point. He went on to say that there were precedents for such a provision. That is the usual argument when you have unnecessary provisions in a statute. He went on to say—I think it was in a later letter—that there was a danger, therefore, if it were left out, that someone would argue that that was significant and it meant that the normal law would not apply. Well, of course, you cannot prevent people arguing that black is white and white is black. Indeed, Jonathan Swift said that lawyers were a race of people who were employed to argue black was white and white was black, according as they were paid. I need not tell your Lordships that Swift had recently lost a law suit. It is not true of course. We cannot really stuff the statute book full of anticipation of every silly argument that might be adduced. I believe that that is the position which the noble Lord finally adopted. We are not bound to go on perpetrating an unnecessary nonsense, and there is every reason why we should not do so.

The argument could be put the other way. There are hundreds and hundreds of corporations, both in common law and statutory law. It could well be argued that the presence of this provision in one or two statutes means that the normal law does not apply in all the other corporate bodies.

Finally, if there were any doubt about it, and if a silly argument were put forward, the courts now have the power under certain circumstances to look at what was said in Parliament. That was the decision of your Lordships' House in Pepper v. Hart. I welcome the support of the noble Lord, Lord Renton. I welcome the support of my noble and learned friend Lord Brightman since he is the leading authority on what is the most important class of corporation aggregate today; namely, commercial companies which are incorporated. The time has come to bring this nonsense to an end, and this is the time to do so. It will enure for the future. I beg to move.

The Chairman of Committees (Lord Boston of Faversham)

My Lords, I must point out to your Lordships that if Amendment No. 1 is agreed to, I cannot call Amendment No. 2.

Lord Brightman

My Lords, I wish to support the amendment. In my submission there is no valid reason for the existence of subsection (7) of Clause 2, which this amendment seeks to strike out. The subsection reads, The validity of proceedings of the Assembly is not affected by any vacancy in its membership". It is inconceivable that the proceedings of a body exercising ministerial functions could be brought to a standstill because a member of that body has died or chooses to resign. That is particularly so when one considers that under Clause 8(6) the vacancy so arising could not be filled during the final three months of the statutory lifetime of the then assembly. The argument would mean that if, for example, a member resigned his seat or died in the second week of February in year four, no election could take place to fill the vacancy. The assembly would be hamstrung until after the election three months later. In my respectful submission it is a bad policy to build unnecessary clauses into parliamentary drafting for the avoidance of untenable doubts.

Lord Renton

My Lords, the arguments in favour of Amendment No. 1 have been so clearly and forcefully put already that I can make my speech very short. I do not wish to repeat those arguments, but, daringly, because this is Report stage, I shall attempt to anticipate the reply which may be given.

The noble and learned Lord the Solicitor-General, may well rely on previous occasions when a similar phrase has been used, and a similar precedent. The circumstances of the Bill are different from those which have arisen in the past when such a phrase has been used. It would be absurd and wrong for us to perpetuate what the noble and learned Lord might claim is a precedent when it does not need to apply in this case, as has been mentioned by the two noble and learned Lords.

The Government should reconsider the matter. I believe that this Session of Parliament is likely to be the longest since the Second World War. Parliament is being asked to get through an immense amount of legislation, which goes into a vast amount of detail, much of which some of us consider to be quite unnecessary. Therefore, if there is a doubt I suggest that it should be resolved in terms of brevity. That is a good point in itself. But here we really must avoid creating an unnecessary precedent for the years to come.

Lord Hooson

My Lords, from these Benches I do not wish to sound repetitive. Having heard the arguments of the noble and learned Lords in particular, it seems to us that the onus has shifted on to the Government to satisfy the House that subsection (7) of Clause 2 and subsection (5) of Clause 14 are not superfluous to requirements. If they are, why have them in the Bill?

The Earl of Balfour

My Lords, I am grateful that this amendment has been tabled. I apologise to your Lordships. I am always slow in thinking. Clause 2(7) states: The validity of proceedings of the Assembly is not affected by any vacancy in its membership". There is no provision for a quorum either in this Bill or in the Scotland Bill. For example, in this House, as I understand it, 30 Members form a quorum. The provision for a quorum should be firmly established on the face of the Bill. I am somewhat surprised that nothing to that effect is in the Bill. I wonder why.

Lord Monkswell

My Lords, the noble and learned Lord, Lord Simon of Glaisdale, said in effect that a body of law stated that a simple majority of a body corporate meeting together was enough to determine the outcome. I believe that later in the Bill there is provision that the standing orders of the assembly can be altered only if there is a two-thirds majority.

If the existing law on the decisions of a body corporate made by a simple majority can be varied by later provisions in the Bill, the implication is that the decisions of the body corporate could be invalidated by there not being a full number of that body, unless that is specifically written into the Bill. As a layman and non-lawyer, while I would argue that there could be a simple majority for the determination of standing orders, I appreciate that that is not on the face of the Bill at present. As we are not at Committee stage it is difficult to have a debate. When the noble and learned Lord, Lord Simon, winds up, perhaps he can give me some advice on the relevance of the two-thirds majority to the decisions of the body corporate which, as he pointed out, should be on the basis of a simple majority.

3.30 p.m.

Lord Roberts of Conwy

My Lords, we are all grateful to the noble and learned Lord, Lord Simon of Glaisdale, for introducing these two amendments. I am particularly grateful to him for the simple reason that I have been taking some pride in the abilities of your Lordships' House as a revising Chamber because since this Bill has been with us it has grown in size considerably. Although I have on all occasions welcomed such growth, particularly since it has resulted for the most part from amendments and changes introduced by the Government, I would nevertheless not like to think that any of the augmentation was not fully justified. The noble and learned Lord has drawn our attention to the possible unnecessary aspects of the two subsections.

The Solicitor-General (Lord Falconer of Thoroton)

My Lords, I think that we would all agree that there should not be any unnecessary prolixity in Acts of Parliament. I am sure that we would all share the views expressed by the noble and learned Lord, Lord Simon of Glaisdale, in that respect. I am sure that we would all also agree that we should, if possible, try to get legislation right without reference to Pepper v. Hart. We should try to make legislation explicable in the terms in which it is put on to the statute book. It is an unhappy result if those seeking to construe the legislation have to read the debate in order to determine what the legislation means.

I respectfully suggest that the two provisions which the noble and learned Lord seeks to remove are justified—and they are justified in order to avoid debates. Similar provisions have been included in a number of Acts stretching back well over 100 years. I refer to the Public Health Act 1875, the Municipal Corporations Act 1882, the Local Government Act 1894 and, more recently, the Local Government Act 1972. The fact that it has been done before does not mean that it has to be done again, but the fact that such provisions are there in previous Acts means that lawyers, no matter how regrettably, will seek to draw an inference from their absence from this Bill to say that there must be some significance in it. It may well be—indeed, I think it more likely than not—that any court confronted with the point would go along with the argument so eloquently put by the noble and learned Lords, Lord Simon of Glaisdale and Lord Brightman, but we must think of the uncertainty that would exist while that point was being resolved: one vacancy in the membership, leading to somebody taking this point, thereby providing a cloud over the proceedings of the assembly until the point has been resolved.

A sensible view must be taken of where the balance has to be struck. Should one take the view that one should strike the balance in a place where one gets rid of the point altogether or does one simply leave it out and recognise that the point might be taken and lead to uncertainty for a period of time? We think that the balance is struck by getting rid of the point once and for all. In relation—

Lord Renton

My Lords, before the noble and learned Lord sits down, could he say whether in any of the previous legislation that he has mentioned the clauses which he says form a precedent have turned out to be decisive and necessary?

Lord Falconer of Thoroton

My Lords, I cannot answer that question, but I can quote from a former Lord Chancellor, Lord Birkenhead, in 1919 when dealing with a similar clause. He said: A moment's reflection will show how many cases might arise in which great annoyance, inconvenience and expense might be entailed by a controversy of this kind without any gain of any kind to the public interest. I think therefore that Parliament, in order to avoid such actions and objections determined to use language of a similar wideness".

Lord Ackner

My Lords, I am grateful to the noble and learned Lord for giving way, but as one of the six Law Lords responsible for Pepper v. Hart, perhaps I may ask whether the quotation that he has just given has not been totally cancelled by that decision? Pepper v. Hart would put an end to this point, if the point were taken.

Lord Falconer of Thoroton

My Lords, first, that quotation from Lord Birkenhead does not cancel out the point. The point is that if that provision is not in this statute, people might take the point. Secondly, I am sure that I am right when I say that it is much better for statutes to be construed by reading them rather than the debates that led to them. For all of those reasons and with the greatest diffidence, I respectfully suggest that the judgment that the Government have made is correct and that to avoid doubt we should leave in those provisions.

Viscount Bledisloe

My Lords, before the noble and learned Lord sits down, he has cited certain statutes in which this provision appears. Is he suggesting that there is a similar provision in every statute that has been passed in which Parliament has set up a corporation aggregate? If not, is there not already an anomaly, and are not the Government merely seeking to perpetuate that anomaly? If the noble and learned Lord can assure us that there is a similar provision in every case where a corporation aggregate has been set up, I see the strength of his point.

Lord Falconer of Thoroton

My Lords, I am afraid that I cannot give the noble Viscount that assurance because I have not looked at every statute which sets up a corporation aggregate. However, all the statutes on which I have relied look like statutes setting up semi-public bodies where the point is obviously of great importance that there should not be a shadow over their proceedings when there is a vacancy.

Lord Simon of Glaisdale

My Lords, I am most grateful to those who have contributed to this debate. We have now heard from two of my noble and learned friends, from the noble Lord, Lord Renton, and from two eminent Queen's Counsel, the noble Lord, Lord Hooson, and the noble Viscount, Lord Bledisloe. That is a formidable body. I know that it does not intimidate the noble and learned Lord the Solicitor-General, but I am entitled to say that five Members of your Lordships' House are supporting me, with only the noble and learned Lord the Solicitor-General against me.

The noble and learned Lord used his favourite phrase, "We think the Government have got the balance right". That really will not do. The noble and learned Lord must answer the argument. He did not refer at all to the argument that these statutory provisions are equally liable to give rise to an argument that where they are not in the provisions of any statutory or non-statutory corporation, a vacancy invalidates the proceedings; nor did the noble and learned Lord answer the point about Pepper v. Hart.

In the end it comes down to this: the Government's argument is that because something unnecessary has been done four or five times in the past 130 years, we must go on doing unnecessary things to the inflation of the statute book. That simply will not do. Your Lordships are, I think, likely to say, "Enough is more than enough".

I must answer the noble Lord, Lord Monkswell, who valuably, with his eagle eye, spotted the provision for an entrenched majority in relation to the standing orders. They are perfectly reconcilable. The general rule applies to all corporations, in the absence of other statutory stipulation, that a decision of the majority binds the minority. I imagine that it is the same in Scotland too—I now see the noble and learned Lord the Lord Advocate in his place—but that is subject to statutory exception. Parliament can always say that on one particular matter more than a mere majority is required, and that is the position here. A majority binds the minority except when it comes to alteration of the standing orders where there must not be merely a simple majority but a two-thirds majority. That does not invalidate these amendments.

I respectfully agree with my noble and learned friend Lord Brightman that the argument put forward by the noble and learned Lord the Solicitor-General is simply untenable. It is quite wrong to believe that counsel will put forward any ridiculous argument that may be suggested to them. They owe a duty to the court not to put forward absurdities. The argument that without this statutory provision a vacancy or a disqualification invalidates would be a complete absurdity.

This issue is not a matter on which to divide the House if it can be avoided. I do not despair that the Government having gone so far may not reflect further and see wisdom. At this stage I shall seek to withdraw the amendment so that I may still have it in hand at Third Reading if the Government adhere obstinately to the position that they have adopted. I beg leave to withdraw the amendment.

Lord Callaghan of Cardiff


The Chairman of Committees

My Lords, is it your Lordships' pleasure that the amendment be withdrawn?

Noble Lords


On Question, amendment negatived.

Lord Falconer of Thoroton moved Amendment No. 2:

Page 2, line 14, leave out ("proceedings of") and insert ("anything done by").

The noble and learned Lord said: My Lords, Amendments Nos. 2, 25 and 29 are grouped together. These amendments are essentially drafting amendments consequential upon changes agreed in Committee about the provisions relating to defamation now set out in Clause 77. As the Bill is currently drafted, the term "proceedings" has a narrow interpretation: it is limited to the business that is formally transacted in sessions of the assembly or in its committees and sub-committees. For this reason the term "proceedings" in Clauses 2, 14 and 20 is now ambiguous. The purpose of the amendments is to bring clarity to the drafting. I beg to move.

Lord Simon of Glaisdale

My Lords, as the noble and learned Lord has said, these are drafting amendments. They do not affect the point made on the previous amendment. It was most unfortunate that your Lordships were manoeuvred into the Question being put on the previous amendment. I do not believe that the Government will be proud when this matter is considered by public and constitutional lawyers. It is a most extraordinary procedural line to take for a government who claim to be a modernising government. We are saddled with a nonsense purely because a nonsense has been perpetrated in the past. Is that the act of a modernising government?

Lord Callaghan of Cardiff

My Lords, it was not the act of the Government. I called "No" when the noble and learned Lord begged leave to withdraw the amendment. The noble and learned Lord spent 35 minutes telling noble Lords what should happen and described what was proposed as an absolute nonsense. He said that the matter should be withdrawn from the Marshalled List and then refused to vote. I wished to vote upon it and record my disagreement with the noble and learned Lord. That is not a manoeuvre but a proper procedure of the House. I hope that next time the noble and learned Lord expresses his views in no uncertain language he will pursue the matter to the end.

Lord Simon of Glaisdale

My Lords, after all these years I am not disposed to quarrel with the noble Lord, Lord Callaghan of Cardiff. I stand by what I said. I do not believe that what has happened today will reflect any credit on the Government.

Lord Falconer of Thoroton

My Lords, I am grateful to my noble friend Lord Callaghan of Cardiff for making clear that it was not the Government who called for the Question to be put on the previous amendment. The point made by the noble and learned Lord has nothing to do with the amendment that I now move and I say nothing more about it at this stage.

On Question, amendment agreed to.

3.45 p.m.

Clause 3 [Time of ordinary elections]:

Lord Falconer of Thoroton moved Amendment No. 3:

Page 2, line 32, leave out from ("may") to first ("the") in line 37 and insert ("make provision for—

  1. (a) any provision of, or made under, the Representation of the People Acts, or
  2. (b) any other enactment relating to elections of community councillors,
to have effect with such modifications or exceptions as").

The noble and learned Lord said: My Lords, Amendment No. 3 arises from your Lordships' approval at Committee stage of an amendment enabling the Secretary of State to make modifications to the statutory procedures relating to community council elections. The power to make modifications could be exercised only when it had been necessary to postpone the date of the community council elections and then only where modifications were appropriate for the proper and effective conduct of those elections. At that time, I explained that the need for the modification had come to light as we considered the practicalities of moving the community council elections in Wales from 6th May next year and combining them with the European parliamentary elections to be held on 10th June. Amendment No. 3 refines that power so as to allow the Secretary of State to modify or except procedures which, in the circumstances of postponement, would hinder the ability of returning officers to conduct the elections in a proper and effective manner.

Some concerns were expressed in Committee about whether the Secretary of State would be able to manipulate the staging of the community elections to his party's advantage. I believe that it would be helpful if I outlined the developments which led the Government to propose Amendment No. 3 and thus reassure your Lordships of the intent behind the new provision. If the community council elections in 1999 are held on the same day as the European parliamentary election the two polls will be combined by virtue of Section 15(1)(c) of the Representation of the People Act 1985. Section 15(4) of the 1985 Act requires that the cost of taking the combined polls, excluding any cost solely attributable to one election, and any cost attributable to their combination shall be apportioned equally among the elections. Under Section 36(5A) of the Representation of the People Act 1983 the expenditure incurred by the returning officer in relation to the holding of a community election is, subject to the provisions of that section, paid by the principal council in which the community is situated. In Wales the principal council is the unitary council. That council in turn may seek reimbursement from the community council concerned.

In the circumstances of the proposed combination in June next year the conduct of the European elections will be the responsibility of the Home Office. By virtue of Section 15(4) of the 1985 Act the Home Office would be obliged to seek reimbursement of 50 per cent. of the costs of the combined elements of the two elections from the principal councils. Those councils in turn would almost certainly seek reimbursement from their community councils for the costs attributable to the community council elections. This would be a considerable financial burden on the community councils and we wish to avoid that.

Amendment No. 3 therefore enables the Secretary of State, when making an order under Clause 3(4) of the Bill, to modify or omit provisions of Section 15(4) of the 1985 Act to the extent that where otherwise a cost is to be apportioned equally between elections the order may specify that the apportionment may be different but only to the advantage of a community election. The modifying provision could not re-order the apportionment which fell to the local authorities to be any more than the existing 50 per cent. It could however specify that the apportionment should be set as low as nil. The precise level of the apportionment would have to be agreed by the Secretary of State and the other interested authority (the Home Office or assembly if the community council elections were combined with assembly elections) in advance of the order being made. Amendment No. 3 ensures that the Secretary of State is able to take action as appropriate. I repeat that this provision can be used only in circumstances where the Secretary of State has decided to postpone the community council elections and any changes must be appropriate in connection with the postponement. He may not decide to change any provision simply because he may have a mind to. The order-making power will not enable him to re-write the rules governing the conduct of the community council elections. Once the assembly has been established the Secretary of State will be able to exercise that power only if he has first consulted the assembly so that it too would be a party to any proposal to make consequential changes to any related statute procedure.

I apologise for the length of this explanation. I beg to move.

On Question, amendment agreed to.

Clause 4 [Voting at ordinary elections]:

Lord Mackay of Ardbrecknish moved Amendment No. 4:

Page 3, leave out lines 5 to 7.

The noble Lord said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 13, 14 and 15. Taken together these amendments change the part of the Bill which deals with the electoral system. As the Bill stands—along with the European Parliamentary Elections Bill and the Scotland Bill—the list which is to be used in order to decide the additional members is to be submitted by the political parties and drawn up by the political parties. It is therefore a closed list. The electorate, as such, has no opportunity to indicate whether it prefers one of a party's candidates as opposed to another of its candidates.

We discussed these matters in some detail on the European Parliamentary Elections Bill, and I do not want to go over the ground again. I recognise that a number of your Lordships are taking an interest in the Welsh Bill and not in the European Parliamentary Elections Bill. If I cover ground that we have already discussed, then I apologise to those who, like myself, are debating all three Bills. It is necessary to explain why it is important that there should be an open list.

There are a number of ways of tackling the question. We have discussed what is called the Belgian system. In this people can vote either for the party or for the individual. I do not wish to explain why I do not approve of the Belgian system. I recommend a speech I made in Committee on the European Parliamentary Elections Bill to those of your Lordships who wish to know why I am suspicious of it.

The point about the Belgian system is that one has the option of voting for a party or an individual. The amendments I have tabled remove the chance to vote for the party. For example, if one wishes to vote for Conservative candidates one must vote for a Conservative candidate and not for the Conservative Party as such. After the votes are cast the first action of the returning officer would be to add up all the votes cast for the candidates of each party, and the total vote would then be the total vote for the party. These total party votes would then be used, via the d'Hondt system, to calculate the number of additional members that each party receives.

There are four additional members in the Welsh system, of which one party might receive two and the other two parties one each. The returning officer would then go, for example, to the party with the two additional seats, go to its list, and select the candidates who had the largest vote of the electorate.

The system in the Bill would have the returning officer simply selecting the party apparatchiks' first choice. My system would have the returning officer selecting the most popular candidate in that party, the candidate who had received the largest vote. It would therefore be a matter for the supporters of each party to decide which individual candidate would be elected. That is why it is called the open list.

As we have seen in both Wales and Scotland the danger of the Government's proposition in selecting the lists is that there is an effort at cleansing the list of those people who the governing party might think are part of the awkward squad, especially by the Labour Party. I am told that they are called loyalty test questions. That is very much up to the party opposite. The electoral system would be brought into disrepute if the electorate felt that it had to vote for a party and had absolutely no say about the choice of the individual candidates who should rank in first, second, third or fourth place in the Welsh system.

The open list is fair, clear and gives the electorate not only the opportunity to indicate which party they wish to support but the candidate within that party. A number of your Lordships who have intervened in debates on other issues, especially the European Parliament issue, may feel moved to intervene today. We can see if there is a measure of support in your Lordships' House to move from the closed list system—which is fundamentally anti-democratic—to the open list system. In case anyone chides me, my decision to table amendments to the additional member system in no way negates my feeling that we would be far better off with a system of first past the post. I beg to move.

Lord Thomas of Gresford

My Lords, we on these Benches commend the noble Lord, Lord Mackay of Ardbrecknish, for his deep study of the proportional representation systems and for the enthusiasm with which he advances the proposals of an open list. These are arguments which we have advanced over many years and we enjoy seeing any convert. However, we take the view that it is important that this Bill gets on the statute book as soon as possible and we do not propose to hold up Government business by supporting this amendment.

Lord Falconer of Thoroton

My Lords, as the noble Lord, Lord Mackay of Ardbrecknish, made clear, this group of amendments would introduce "pure" open lists for the electoral region element of the additional member system to be used for the assembly elections. We believe that open lists in the context of that system constitute a complexity which would serve only to confuse the electorate and the electoral process. Voters would have to cast their vote either for a named candidate of one of the political parties which had put forward a list, or for an independent who was standing in the electoral region. There would be no opportunity to vote for a party list as submitted by the party. That is what the noble Lord, Lord Mackay of Ardbrecknish, intends with these amendments.

Under the Government's proposals, voters will be asked to make two decisions in the polling booth: to vote for a constituency member and to vote for the additional members for the electoral region in which the constituency is located. The election of the constituency member will be by the same process as applies for the election of MPs to another place, but the additional members' election is a completely new procedure. There will be new duties for electors to perform and new terminology for them to assimilate. In this context there is considerable virtue in making the additional member selection simple and straightforward. This is why we have decided that the selection should be by a method whereby voters are given a straightforward opportunity to vote for the party whose list they wish to support or for an independent who may be standing for the electoral region.

An open list consisting of candidates' names only could well give rise to results which were inconsistent with the votes cast by voters for individuals on the party lists. The process of allocating the additional member seats is dependent upon the total number of party list votes each party wins, having regard to the number of individual constituency seats also won by that party. In a pure open list system, the total number of party list votes is the sum of the votes cast for each of the individual candidates on the list.

An example will help illustrate my point about inconsistencies. Take two parties, neither having won any constituency seats in a particular region. It is conceivable that the total vote for party list 1 although high may rely very heavily upon the votes cast for one individual on that list; the other candidates on the list may have polled very lightly. Party 2 may not have had such a large total list vote, but that total might not be so heavily dependent upon one individual and two candidates may have received more votes than all but the first candidate of party 1. Party 1, on the strength of the total votes cast for its candidates, is entitled to two of the additional member seats. The first seat would be allocated to the candidate with the very high personal vote; the second would be won by the second highest poling candidate on the list, who has actually polled very low. Party 2, however, is entitled to only one additional member seat, which would be allocated to its highest polling candidate. The second highest polling candidate for party 2 would not be entitled to a seat, despite the fact that he or she had received a personal vote higher than that achieved by the second candidate of party 1, who had won a seat.

The proposal made by the noble Lord, Lord Mackay of Ardbrecknish, leads to the electorate choosing Mr. A from party 1 and Mr. B and Mr. C from party 2, and it gets Mr. A and Mr. D from party 1. That apparent inconsistency between the wish of the voters as expressed in their votes for individuals on the party list and the subsequent allocation of seats would be very difficult and embarrassing to explain to voters and would appear to be a negation of democracy. The successful second candidate for party 1, who had been elected in this example, would also have great difficulty, I suspect, in establishing himself as a credible representative of the area from which he had come.

There is a possible further inconsistency in the example given by the noble Lord, Lord Mackay of Ardbrecknish. It will be open to candidates to stand for the constituency and for the electoral region. However, if the candidate wins election for a constituency then his or her name is discounted from the party list for the purposes of allocating the additional member seats. What if that person was the one who had attracted the greatest number of individual votes on the list? Should the party be entitled to the additional member seats allocated to it on the strength of votes cast for someone who, following his constituency success, is no longer on that list, particularly if the other candidates had been much less favoured by the electors?

The ballot paper for an open list election is detailed and complex. The names of all candidates for a party list would have to be listed on the ballot paper. Party lists may comprise up to 12 names. Voters would have to decide between placing their mark either beside the name of one candidate on a party list, or for an independent. I believe that there would be considerable scope for voter confusion.

Returning to our proposal, voters will not be asked to make their selection for the electoral region in the absence of information about the candidates on each party list or their order of priority on the list. We are proposing that notices will be prominently displayed in every polling station, listing each party's list candidates in the correct order. It will also be open to the parties to distribute details of their lists to the electorate beforehand. The choice will be an informed one and voters will know when casting their vote for the additional members exactly who is most likely to be elected from each party.

Our essential objection to open lists in AMS elections is our interest in keeping the procedure as simple as possible. We do not believe that the closed list procedure represents any diminution in voters' powers of choice. Voters will have a clear idea of whom they are voting for on a list and the order in which the candidates from that list will be elected. If a voter disagrees with the list of names he or she can vote for another party list or for an independent.

I note that no noble Lord spoke in support of the amendment moved by the noble Lord, Lord Mackay of Ardbrecknish. That was no doubt because they were aware that it would lead to anomalies of the sort to which I have referred and would make extremely complicated that which should be sensible. In all the circumstances, I invite the House to reject the amendment.

Lord Callaghan of Cardiff

My Lords, before my noble and learned friend sits down, and with the leave of the House, I cannot pretend that I followed everything that he said. If anyone can make a difficult subject clear, it is the Solicitor-General. If he made one thing clear to me—if he will allow me to say so—it is that I am absolutely confirmed in my position that first-past-the-post is easily the best system.

Lord Mackay of Ardbrecknish

My Lords, I am glad that the noble Lord, Lord Callaghan of Cardiff, intervened there, because if the noble and learned Lord the Solicitor-General did anything, he illustrated the complexities of the proportional representation system. He also suggested that the electorate might not be able to understand my system. Dare I say that he underestimates the intelligence of the electorate? It will be able to understand my system every bit as well as it will be able to understand the Government's system, or any other system brought forward under proportional representation.

I hope that the noble Lord, Lord Thomas of Gresford, does not become too excited by what he sees as my conversion to proportional representation. I can assure him that it is not a conversion at all; I am just trying to improve what I think is a bad lot. I, like the noble Lord, Lord Callaghan, would prefer to stick to first-past-the-post.

I do not believe that my system is all that much more complex. For example, I noticed that the noble and learned Lord made much of the fact that the electorate might find that someone with a lesser vote would be elected when someone with a greater vote might not be. He pointed out that a popular person might be elected for a constituency, and might be at the head of the list and receive a great number of votes over the region, which would pull other people through on his or her coat tails.

That could happen already, because unless the Government intend to keep the list secret, there may well be someone at the head of the list who is popular and who would be elected for a constituency, and who would pull in a lot of votes on the second vote of people thinking that they are voting for the person at the head of the list. That person is elected for a constituency and, lo and behold, the electorate finds that its votes have been used to elect No. 2 or No. 3 on the list, when they really voted for that list because of No. 1 on the list.

Whether it is my system, or that of the noble and learned Lord, his objection is an objection to both systems, and not specifically to mine. I believe that the electorate will find it easy to understand the principle. The basic point is the additional member seats—the additional members for the party. The electorate should be given a choice of the parties' candidates for those additional member seats. It is straightforward. I have no trouble in understanding it. One could explain it relatively easily to the electorate.

The electorate will not like being presented with a list where it knows that candidates that it would prefer have been knocked out, or put in a low position, because the rulers of the party—whichever the party—at a particular moment do not want a particular wing of the party to be represented. That could be true of all political parties now and in the future. An open list would be a considerable improvement on a closed list, and I think that I would like to take the view of the House.

4.8 p.m.

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

Their Lordships divided: Contents, 106; Not-Contents, 120.

Division No. 1
Aberdare, L. Kintore, E.
Ailsa, M. Kitchener, E.
Aldington, L. Layton, L.
Alexander of Tunis, E. Leigh, L.
Alton of Liverpool, L. Lucas of Chilworth, L.
Ampthill, L. McColl of Dulwich, L.
Anelay of St. Johns, B. [Teller.] McConnell, L.
Ashbourne, L. Mackay of Ardbrecknish, L.
Balfour, E. Mackay of Drumadoon, L.
Balfour of Inchrye, L. Mersey, V.
Beloff, L. Milverton, L.
Berners, B. Monro of Langholm, L.
Bethell, L. Mottistone, L.
Biffen, L. Mountevans, L.
Blatch, B. Mowbray and Stourton, L.
Bledisloe, V. Moyne, L.
Boardman, L. Munster, E.
Brabazon of Tara, L. Naseby, L.
Braine of Wheatley, L. Newton of Braintree, L.
Bridges, L. Northesk, E.
Broadbridge, L. Norton, L.
Brougham and Vaux, L. Onslow of Woking, L.
Byford, B. [Teller.] Oxford, Bp.
Cadman, L. Oxfuird, V.
Carnegy of Lour, B. Palmer, L.
Carrick, E. Pender, L.
Chorley, L. Peyton of Yeovil, L.
Clanwilliam, E. Pilkington of Oxenford, L.
Courtown, E. Rees, L.
Cranbrook, E. Roberts of Conwy, L.
Crickhowell, L. Rotherwick, L.
Cross, V. Rowallan, L.
Cumberlege, B. Russell, E.
Dacre of Glanton, L. St. John of Bletso, L.
Davidson, V. Savile, L.
Dean of Harptree, L. Sharples, B.
Denton of Wakefield, B. Simon of Glaisdale, L.
Dixon-Smith, L. Skidelsky, L.
Dunleath, L. Stanley of Alderley, L.
Ellenborough, L. Sudeley, L.
Elton, L. Swansea, L.
Erroll, E. Swinfen, L.
Foley, L. Tebbit, L.
Fraser of Carmyllie, L. Tenby, V.
Freyberg, L. Teviot, L.
Gainford, L. Teynham, L.
Halsbury, E. Thomas of Gwydir, L.
Harmar-Nicholls, L. Trumpington, B.
Holderness, L. Vivian, L.
Hood, V. Warnock, B.
Hylton-Foster, B. Weatherill, L.
Ilchester, E.
Ironside, L.
Jopling, L.
Kenyon, L.
Acton, L. Judd, L.
Addington, L. Kennet, L.
Avebury, L. Kilbracken, L.
Barnett, L. Kirkhill, L.
Beaumont of Whitley, L. Lockwood, B.
Berkeley, L. Lofthouse of Pontefract, L.
Blackstone, B. Ludford, B.
Blease, L. McIntosh of Haringey, L. [Teller.]
Borrie, L.
Brooks of Tremorfa, L. McNair, L.
Bruce of Donington, L. McNally, L.
Burlison, L. Mallalieu, B.
Calverley, L. Mar and Kellie, E.
Carlisle, E. Merlyn-Rees, L.
Carmichael of Kelvingrove, L. Mishcon, L.
Carter, L. [Teller.] Molloy, L.
Castle of Blackburn, B. Monkswell, L.
Cledwyn of Penrhos, L. Montague of Oxford, L.
Clinton-Davis, L. Morris of Manchester, L.
Cocks of Hartcliffe, L. Ogmore, L.
David, B. Orme, L.
Davies of Oldham, L. Peston, L.
Dean of Beswick, L. Plant of Highfield, L.
Desai, L. Prys-Davies, L.
Dholakia, L. Ramsay of Cartvale, B.
Dixon, L. Randall of St. Budeaux, L.
Donoughue, L. Razzall, L.
Dormand of Easington, L. Rea, L.
Dubs, L. Redesdale, L.
Eatwell, L. Rendell of Babergh, B.
Elis-Thomas, L. Richard, L. [Lord Privy Seal.]
Evans of Parkside, L. Rochester, L.
Ezra, L. Rodgers of Quarry Bank, L.
Falconer of Thoroton, L. Sainsbury, L.
Farrington of Ribbleton, B. St. Davids, V.
Gallacher, L. Serota, B.
Geraint, L. Sewel, L.
Gladwin of Clee, L. Shepherd, L.
Glenamara, L. Simon, V.
Goodhart, L. Simon of Highbury, L.
Graham of Edmonton, L. Smith of Gilmorehill, B.
Gregson, L. Stallard, L.
Grenfell, L. Steel of Aikwood, L.
Hacking, L. Strabolgi, L.
Hardie, L. Symons of Vernham Dean, B.
Hardy of Wath, L. Taverne, L.
Harris of Greenwich, L. Taylor of Blackburn, L.
Haskel, L. Thomas of Gresford, L.
Hayman, B. Thomas of Macclesfield, L.
Hollis of Heigham, B. Thomas of Walliswood, B.
Holme of Cheltenham, L. Thurso, V.
Hooson, L. Tope, L.
Howie of Troon, L. Tordoff, L.
Hoyle, L. Turner of Camden, B.
Hughes, L. Watson of Invergowrie, L.
Hunt of Kings Heath, L. Whitty, L.
Irvine of Lairg, L. [Lord Chancellor.] Wigoder, L.
Williams of Elvel, L.
Islwyn, L. Williams of Mostyn, L.
Janner of Braunstone, L. Winchilsea and Nottingham, E.
Jenkins of Putney, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 5 [Party lists and individual candidates]:

4.17 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 5:

Page 3, line 24, at end insert (", provided that there is a candidate of the party in each Assembly constituency included in that Assembly electoral region. (1A) A registered political party shall submit a list of candidates to be Assembly members for each Assembly electoral region in which there is a candidate of the party in at least one of the Assembly constituencies included in that Assembly electoral region.").

The noble Lord said: My Lords, if your Lordships thought that the previous argument was complicated I regret to say that this is even more so. However, that is the problem with proportional representation in its various forms. In moving Amendment No. 5, I shall speak also to Amendments Nos. 6, 7, 8 and 9. All are variations of a way of dealing with a matter which all Members who spoke in Committee agreed was a problem. I apologise to noble Lords who were present in Committee for repeating the argument, but I do so for the sake of those who were not present and in order to remind ourselves of the problem.

In the system of additional member seats there are two votes. One is for the constituency and the other is for the list for the region. Calculations are made following the d'Hondt system (named after the mathematician who devised it) to determine how many of the four seats additionally available each party should receive. Those seats are then given to the appropriate party and thus an attempt is made—although not a good attempt in the case of four additional member seats—to introduce proportionality into the total system. The additional member proposal in the Welsh and Scottish systems leads to the proportionality.

I can best illustrate the problem by sharing with your Lordships a little trick which the Conservative Party could have played in the Wales North Euro seat in the 1992 elections. On the first-past-the-post wins in that seat, the Labour Party gained four, the Conservatives gained two, the Liberal Democrats none and Plaid Cymru two. If one assumes that the first and second votes are the same—that may not turn out to be true but one must make that assumption for the sake of the illustration—when the d'Hondt system is calculated, the Labour Party gets one additional member, the Conservatives two, the Liberal Democrats one and Plaid Cymru none. So the total is five for Labour, four for the Conservatives, one for the Liberal Democrats and two for Plaid Cymru.

However, if the Conservatives decided to stand as Conservatives in the constituency ballot but to register another party called, for example, the Welsh unionist party—and under the Registration of Political Parties Bill that is possible—and in the second ballot the Welsh Conservative Party does not stand at all but the Welsh unionist party does, Conservatives, being intelligent people, would understand that they should vote unionist in that second ballot and proceed to do so. When the d'Hondt system is then applied, the Labour Party wins no additional seats; the unionists win three additional seats; the Liberal Democrats win one; and Plaid Cymru wins none. Therefore, the Conservatives and unionists together in the Welsh Assembly, instead of having four seats under the system which I mentioned first, would gain an extra seat and win five seats. There would be considerable advantage to the Conservative Party in doing so.

If one takes the last election and still uses the Wales North Euro seat and splits the Labour Party into the Labour Party for the first ballot and the co-operative party for the other ballot, this is what would happen. At the last election the Labour Party gained six first-past-the-post seats; the Conservative Party gained none; the Liberal Democrats none; and Plaid Cymru gained two. On the additional member system seat without split parties, the Labour Party would gain no more seats; the Conservatives would gain three; the Liberal Democrats would gain one and Plaid Cymru would gain none. Therefore, Labour would end up with six seats all from first-past-the-post while the Conservatives would win three seats, all from the additional member system; the Liberal Democrats would win one seat from the additional member system; and Plaid Cymru would have the two that it won from the first-past-the-post.

However, the Labour Party may decide to register the co-operative party as a separate party, which in my view is perfectly possible under the Registration of Political Parties Bill, and stand in the second ballot. The electorate would understand perfectly well what was happening and would probably approve because it gives advantage to one's own party. When the d'Hondt system was used, the co-operative party would gain three additional member seats; the Conservatives would gain one; the Liberal Democrats would gain none; and Plaid Cymru would gain none. Therefore, the Labour Party would end up with nine seats for that area, the Conservatives one, Plaid Cymru two and the Liberal Democrats none, as opposed to six, three, two and one if the system were carried out fairly and properly.

As I said in Committee, that is not something which has been devised by me. This is a suggestion first brought to the attention of the political parties by Dr. Dyer of Aberdeen University who did the calculations and put out the suggestion in the Scottish context with regard to the Labour Party and the Co-operative Party. But in the other place on the Welsh Bill the question was raised and Mr. Win Griffiths said: I concede that there may be scope for collusion between and within parties to exploit the two-ballot structure of the additional member system in the manner that he described. Such cynical manipulation of the system would be an affront to the electorate and would undermine the democratic credibility of the elected body".—[Official Report, 2/3/98: col. 804.] I am not sure that I totally agree with him as regards that last sentence.

In Committee, all noble Lords who spoke accepted that the scenario which I painted could come about. I had cast-iron assurances, which I accept, from the noble Lord, Lord Williams of Mostyn, that the Labour Party would not do anything like that. The noble Lord, Lord Thomas of Gresford, gave assurances that the Liberal Democrats would not do anything like that, as did the noble Lord, Lord Elis-Thomas, on behalf of Plaid Cymru. I gave assurances that the Conservative Party would not do that. But the blunt fact of the matter is that four honest gentlemen as we may be, we shall not be there for ever and somebody in the future may decide to overturn our pledges and to use that trick.

What I have suggested is a way to link the first and second ballot together so that parties can stand in one and not in the other. I have put forward various different methods. The first is what I shall describe as the hardest method, which is that you can only stand in the list if you stand in every constituency that makes up the Euro seat, and if you stand in one constituency in the Euro seat you must put forward a list. Therefore, it links both ways: it links the first vote to the second vote; and links the second vote back to the first. That is the hardest test.

I have then made an alternative suggestion because I recognise that the Greens may not wish to contest all the first-past-the-post constituencies yet may want to be on the list. Therefore, I have provided that any party which is on the list must contest at least one. Conversely, if a party contests at least one, it must put forward a list.

In Amendments Nos. 6, 7 and 8, I have suggested that if one stands in one-quarter of the constituencies, one must put forward a list and if one puts forward a list, one must stand in one-quarter. I have then provided the same in relation to one-half and three-quarters. I have done that in a genuine attempt to find a way to prevent that ever happening in future. I look forward to hearing what the Government think about that.

If the Government are unable to accept any of those variations, I hope that between now and Third Reading they will turn their attention to finding a solution to that problem which goes somewhat beyond guarantees given by the three noble Lords whom I mentioned and myself. It is not good enough to introduce a new electoral system which is capable of being manipulated and not do something to prevent that manipulation. I beg to move.

Lord Falconer of Thoroton

My Lords, as the noble Lord, Lord Mackay, has said in introducing his amendments, they deal with the issue of potential collusion under the additional member scheme. In essence, what the noble Lord means by that is a situation where one group stands in the constituencies under the name of a party and then produces another apparent party to stand in the electoral regions when they are all part of the same party.

Everybody recognises that in theory that is possible. The noble Lord, Lord Mackay of Ardbrecknish, has rightly pointed out that the Liberal Democrats, the Labour Party, the Conservative Party and the Welsh Nationalist Party have all indicated that they would not do such a thing. Moreover, it presumes a lot of quite unparalleled cynicism and duplicity among any political party that did that, supported by indifference and naïvety on the part of the voters and of the media.

I submit that the noble Lord's approach throughout this debate and the earlier debate on this issue has been decidedly alarmist. He grossly exaggerates the likelihood of those hypothetical scenarios becoming a reality. No electoral system is without its potential for manipulation, not even first-past-the-post. I remind the noble Lord that it has long been common practice in local government elections in parts of Wales for members of political parties to stand for the council as independents, even though they are nothing of the kind. They do so because they know full well that if they stood under their party banner they would not have a hope of being elected. Nothing in the law prevents such deception. It is left to the good sense of the electorate to figure out who is really who, and they have proved able to do so.

The options offered to us by the noble Lord are not new. They are variations on an earlier proposal which has already been considered at length by Ministers in the departments responsible for organising party list elections.

All five options impose restrictions on and requirements from political parties which wish to participate in the elections for the national assembly for Wales. All the options would require a party wanting to put forward a party list for an electoral region to mount at least some degree of challenge in the constituencies within that region. All the options would oblige a party which was contesting a certain number of constituencies within an electoral region also to put forward a party list in that region. Those impositions—it is the price the noble Lord says we have to pay for the theoretical possibility he identifies—are fundamentally undemocratic and imperiously draconian.

In a democracy, is it proper for the state to exercise such authority over where a political party mounts its electoral campaigns and targets its resources? I do not think so. The parties which would suffer most from the provisions, whichever of the five options is adopted, are the smaller parties which do not have the resources or the electoral appeal to engage in many contests or to mount campaigns over large areas. For tactical or economic reasons they would want to concentrate their activities on a small area or in a limited number of contests. Concentration of resources, to my mind, is a perfectly legitimate electoral strategy. The Greens, for example, contested only four out of 40 constituencies in the 1997 general election in Wales. I imagine that parties like theirs will be focusing on the electoral regions for the assembly elections, quite legitimately. It would be wrong if we were to oblige parties to engage in what were "token" contests in some areas simply to allow them to pursue their real intent in another.

I do not exaggerate when I refer to "token" contests. These provisions would have the effect of requiring candidatures to be mounted in a specified number of constituencies simply as a qualifying condition for submitting a party list. The other element of the various couplets—they all come in twos—obliges parties which ran candidates in a specified number of constituencies in a region to put forward a party list for that region, whether or not they wanted to. Why should those token contests be inflicted on the electorate? Why should a party have to stand in an electoral region when all it wished to do was to stand in a specified number of constituencies? What intrinsic democratic purpose would this extraordinarily directive election serve?

We would have constituency candidatures which were no more than qualification criteria for party lists; and party lists which were no more than penalties imposed for exceeding the approved threshold for the number of constituency candidates in a region. In my view, this scenario is far worse than the ones described by the noble Lord in moving the amendment. The effect of any of these amendments would be to set up a system which placed a virtual obligation on parties to run bogus candidatures in several areas. That would be a cynical disregard of the electoral process and a gross deception of the electorate.

All the major political parties have given solemn undertakings in this House and in another place not to indulge in blatant manipulation of electoral machinery. I do not believe that we shall see the nefarious activities envisaged by the noble Lord. I have more faith in the good sense of the electorate and the political parties. I am afraid that he does not appear to share that good faith, even in respect of his own party. Whatever may happen, I believe strongly that the so-called solutions put forward by the noble Lord are more undemocratic and duplicitous than any of the unlikely circumstances that he described today.

4.30 p.m.

Lord Onslow of Woking

My Lords, before the noble and learned Lord sits down, perhaps I may say this. He will be familiar with a law which states that if something can happen, sooner or later it will. By his own admission, under this legislation as we have it now, it would be perfectly possible for what my noble friend has suggested to occur. It has to happen only once to invalidate the whole system. We have the opportunity now to make sure that it cannot happen. Much faith though I have in all those who have given solemn undertakings that their party would never do any such thing, I remember being in the House of Commons when a Labour Home Secretary felt obliged, to lay an order amending the constituency boundaries as the law provided, and to whip his party to vote against it. I do not suppose the noble and learned Lord would accuse me of being naïve if I said that that sort of thing has happened once and it can happen again. I support strongly what my noble friend said.

Lord Falconer of Thoroton

My Lords, I have accepted, as the noble Lord pointed out, that it could happen. But the point I am making is that the solution proposed—as any solution proposed would have to be—is much worse than the consequences the noble Lord proposes. What the noble Lord proposes, is that parties be compelled to place people in constituencies and to place lists in electoral regions simply as the price to be paid for standing where they wish to stand. That is not fair and it is not democratic; and it is unnecessary, having regard to the level of the risk of untoward events occurring. That is at the heart of our objection to the amendment proposed by the noble Lord. In those circumstances I invite the noble Lord to withdraw his amendment.

Before I conclude, I say this in relation to four out of his five couplets. Although this is a drafting point, they are mutually contradictory in the way they operate. For example, the first one says that one can put forward a list in an electoral region provided that one has somebody standing in each assembly constituency. Then new Section (1A) states that one is obliged to put forward a list in the electoral region where one has one or more candidates standing in a constituency. On the one hand it is said that it is optional; and, on the other, that it is compulsory. I fully understand what the noble Lord is getting at with his amendments, but as they are drafted at the moment they appear to be contradictory.

Lord Mackay of Ardbrecknish

My Lords, I am grateful to the noble and learned Lord for the last point. I shall study it with interest and see what I can do to improve the amendments—or one of them. I have listened to the noble and learned Lord. My noble friend Lord Onslow of Woking made a telling point in his intervention. If I had stood before your Lordships all those years ago and said that it was possible that a government might obey the law, lay the orders regarding electoral boundaries before the House, and then proceed to vote them down, I am sure that I would have received much the same answer from the government minister of the day. He would have told me that I was grossly exaggerating, that people would not do that, and so on. But, lo and behold, in the fullness of time they did so.

It is exactly the same with this provision. I do not believe that I am grossly exaggerating. As I mentioned to your Lordships, the original idea is contained in an article by Dr. Dyer, who I believe is a lecturer in politics at Aberdeen University. It was taken up by a Member of the other place, Mr. Ian Davidson, the Member for one of the Glasgow seats, who advocated it in exactly the same way that I illustrated for the Scottish parliament. I shall bring forward similar amendments in relation to Scotland, but the position is exactly the same in Wales. The potential is there.

Lord Elis-Thomas

My Lords, will the noble Lord give way? I am grateful. Will he indicate which parties or candidates in Wales have indicated publicly that they might adopt this course; or which political commentator who is read seriously in Wales has suggested that this might happen?

Lord Mackay of Ardbrecknish

My Lords, when I introduced these amendments, I indicated that three noble Lords, including the noble Lord, Lord Elis-Thomas, on behalf of their parties gave assurances that it would not happen; and I gave assurances on behalf of mine. However, as I pointed out, those assurances do not bind our parties for all time. I regret to say that the example given by my noble friend Lord Onslow of Woking is a reminder to us that we should make legislation as tight as we can achieve against any eventualities. Therefore while I fully accept that nobody suggests that it would be done in Wales at the moment, the fact of the matter is that at some future time some party could decide to do that. The electorate would quite understand, especially the electorate which supported the party in question. The electorate would be perfectly capable, in the words of the noble and learned Lord, of having the good sense to work out who is who, and to see the advantage that it would bring to their own party. I do not think that many of the supporters of that party would disapprove if in extreme circumstances it stood between them and losing the election.

Some of the arguments of the noble and learned Lord about how unfair and undemocratic it was for smaller parties could equally be applied to deposits and to the need to get above certain thresholds in order to get the deposit back. It seems to me that one could argue in exactly the same way that having deposits before one stands for election is anti-democratic and unfair on small parties which may not be able to achieve the 2.5 per cent. threshold now laid down.

I do not think that it is a terribly good argument for the Government to say that any of my proposals are unfair. As I said originally, I accept that my hardest proposal, which demands that every seat be contested, would be unfair. However, my softest proposal—if I may call it that—would simply stipulate that a party would have to contest one seat. If it contested one or more, then it would have to submit a list. I do not think that that is a huge obligation for even a very small party if it is serious about standing and if it is likely actually to gain support.

I fully accept that my amendments may not be the best way forward, but I should have liked to hear some sort of commitment from the Government as regards finding a way, by using all the skills at their disposal—for example, draftsmen and so on—to prevent this eventuality happening. However, it seems that I am not going to get that. The five amendments that we are discussing are mutually exclusive. I should like to have the opportunity to read what the noble and learned Lord said to see whether I can come forward with another suggestion which might help to alleviate what I believe could be a serious problem. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 6 to 9 not moved.]

Lord Roberts of Conwy moved Amendment No. 10:

Page 3, line 25, at end insert (", who shall publish the list at the earliest opportunity").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 11 and 12. The Minister will recall an amendment I moved in Committee which proposed that the regional returning officer should publish the party list of candidates as soon as he received it, or as soon as possible thereafter. We suggested that for the simple reason that we believe electors are entitled to know who is on the party list. I went further and asked for a display of the lists at polling stations. However, that is a slightly separate issue.

On the first point, the noble Lord, Lord Williams of Mostyn, thought my idea a very sensible one, and said: As regards publishing the lists as soon as possible after their having been submitted, I am bound to say that, in principle, that seems a thoroughly sensible idea".—[Official Report, 11/5/98; col. 883.]

The noble Lord went on to talk about an elections procedure order which will be subject to the affirmative resolution procedure. Do we have to wait for that order before the principle of publication is accepted? Should the principle of publication not be written into the Bill as we suggested?

Coupled with this amendment are Amendments Nos. 11 and 12 which propose that the order of names on the list shall be determined by the party and that the list shall appear on the ballot paper. That is consistent with our amendments in favour of the open list system. I thought that I heard the noble and learned Lord refer to the fact that those points have already been conceded; namely, publication of the lists, plus the order of the lists, and their use on ballot papers. We also suggest in our amendment that the list should be rotated, as it were, in order to try to ensure that candidates receive equal exposure to the electors. I am told that that system is in use abroad.

The thrust of our amendments is that electors must know—surely they have a right to know—who they are voting for as well as the party; in other words, who is to represent the party. Again, although I should like some clarification, I understand that the principles of what we are talking about have been agreed for the European Parliamentary Elections Bill. I beg to move.

4.45 p.m.

Lord Falconer of Thoroton

My Lords, I shall speak to Amendments Nos. 10, 11 and 12. Amendment No. 10 raises an issue which we touched upon in Committee. It was stated then by the Government that we fully supported the principle of making available to voters information about the composition of party lists and that we would look at the means of achieving that intention.

At parliamentary elections, the acting returning officer is required to publish a statement of the persons nominated once the time for making objections to nominations has expired. We shall need to make similar provision for the publication of a statement of persons nominated for the assembly elections. In the case of party lists, we will propose that that statement should include the names of all candidates on the list. However, that is a detail about electoral procedure.

As already mentioned, we are currently in the process of drawing up an assembly elections procedure order which will lay down the rules and regulations for the conduct of the assembly elections. The order is the appropriate vehicle for making provision of this type. Further, the order will be subject to the affirmative resolution procedure and your Lordships will have the opportunity to examine the detail when the order is presented to Parliament—which, on current plans, will be before the end of this year.

We cannot support Amendments Nos. 11 and 12 which call for the inclusion of the names of list candidates on ballot papers. Party lists submitted for assembly electoral regions may include up to 12 names. A ballot paper which included the names of every party list candidate would be unmanageably large and have a mass of confusing detail. With that amount of information on the ballot paper, many electors could well be deceived into thinking that they could in fact vote for an individual candidate on the list. Indeed, I mentioned that aspect during the course of our debate regarding the choice between the open and the closed list.

Mention was made in Committee that we are considering the means by which the composition of party lists can be publicised and made widely available. I explained then that one of our favoured options would be to make it a requirement to have notices placed in all polling stations displaying the names of party list candidates in that region. We are still considering with elections administrators the practicalities of the various options. Some of the possible complications were alluded to in Committee—notably, the need to make provision to give equal treatment to all other candidates and the need to ensure that there was sufficient wall space in polling stations to accommodate all those notices. I am confident that any difficulties can be overcome. I fully anticipate that the elections procedure order will include adequate provision for publicising the names of all party list candidates.

Finally, I do not believe that the second element of Amendment No. 12 would be at all helpful—not to voters, and certainly not to the regional returning officers. The proposal is that there should be, as it were, a revolving list; in other words, you put the list of regional candidates on each ballot paper but you change the order for various chunks of the ballot papers. Noble Lords need only imagine the administrative exercise and expense of ensuring that a certain proportion of ballot papers had a party list arranged in different ways. How would you cope with several party lists with different numbers of candidates? The prospect of arranging every ballot paper to meet the full requirements of this amendment in respect of every party list would be a nightmare. Indeed, for what purpose? Many of the ballot papers will never be used by voters. Turnouts do not reach 100 per cent. even in the best of years.

I hope that the assurances about provision being made in the elections procedure order for publicising party lists will persuade the noble Lord to withdraw the amendment.

Lord Roberts of Conwy

My Lords, I am grateful to the noble and learned Lord the Solicitor-General for his remarks. I am glad to hear that all the candidates' names on the list will be published and that further progress will be made when we have the electoral procedure order which we can discuss in the course of the affirmative procedure. At the same time I was disappointed to hear that the names will not appear on the ballot paper and that individual electors will not be able to vote for their chosen candidate. It seems to me a great pity that that will not be allowed because there is a tradition in this country among the electorate that they like to know for whom they are voting. I am surprised that the noble and learned Lord the Solicitor-General thinks there would be a difficulty with what we are suggesting. The system that we recommend is certainly practised on the Continent and people do not seem to have undue difficulties with the system there. Therefore it is with some regret, and yet with some relief at the anticipated contents of the electoral procedure order, that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11 and 12 not moved.]

Clause 6 [Calculation of electoral region figures]:

[Amendment No. 13 not moved.]

Clause 7 [Return of electoral region members]:

[Amendments Nos. 14 and 15 not moved.]

Lord Elis-Thomas moved Amendment No. 16:

After Clause 7, insert the following new clause—