Lords Sitting of 20 November 2000

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chichester.

Cleaner Vehicle Fuels
Lord Ezra Lord Ezra asked Her Majesty's Government:
Whether, in the light of the measures proposed in the Pre-Budget Report to encourage the use of cleaner fuels for road vehicles, they can estimate the rate of reduction in air pollution caused by road traffic over the next five years.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, we expect that the take up of ultra-low sulphur petrol, which will increase considerably as a result of the Chancellor's announcement, will result in a reduction in urban areas in 2004 of 1 per cent of emissions of oxides of nitrogen, 1 per cent of volatile organic compound emissions and 4 per cent of carbon monoxide emissions.
We are not able to carry out a comprehensive review of the impact on air quality and some of the other measures announced because the detail requires further work. The Deputy Prime Minister announced today the publication of the Government's response to the final report of the Cleaner Vehicles Task Force, which contains further measures to improve air quality and reduce carbon dioxide emissions, including £69 million of funding to accelerate the take up of cleaner fuels and cleaner, more fuel-efficient vehicles.
Lord Ezra: My Lords, I thank the Minister for that encouraging reply. Perhaps I may ask him two questions. The first relates to ultra-low sulphur petrol, which he has indicated will be available in increasing quantities. Can he state whether the price at which that petrol will be sold will be in line with the price of normal unleaded petrol? What will be the designation of such petrol? I understand that filling stations label it under different names. That could be confusing for the motorist.
My second question relates to the promotion of road fuel gases, to which I believe the Government are also committed. To what extent are liquid petroleum gas and compressed natural gas already used? What are the prospects for the future? Does the Minister accept that a determined effort to convert lorries and taxis to compressed natural gas would have a major impact on the reduction of noxious emissions, especially particulates, which cause respiratory diseases?
Lord Whitty: My Lords, I believe that the noble Lord asked more than two questions, but I shall
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attempt to reply. Somewhat to the surprise of many people, one-third of all petrol delivered is already ultra-low sulphur petrol. It is labelled in different ways in different garages. Certainly by April we would expect there to be a pretty comprehensive supply. The branding is obviously a matter for the oil companies. However, I have no doubt that they will take account of recognisability, to which the noble Lord referred.
As regards price, although the Government are not into price controls, we have had an indication from UKAEA, the trade association for the oil companies, that the price of ultra-low sulphur petrol will follow the tax reduction and there will be relativity, therefore, with other unleaded petrol. As regards gas fuels, the market for LPG in particular is growing. Over 20,000 vehicles already use LPG and the infrastructure for that is developing, as is, to a lesser extent, that for compressed nitrogen gas. There is scope for considerable benefits from cleanliness of petrol and fuel efficiency. As regards conversion, through the Powershift programme, the Government already provide significant support for the retrofitting of buses and taxis in particular. In some cases, particularly for cars, conversion tends to be expensive. There may be other appropriate routes. However, the Government already support such conversions.
Lord Dubs: My Lords, does the Minister agree that a more rapid usage of gas and electric powered vehicles would have significant environmental benefits over and above those of ULSP? Does he further agree that incentives such as exemption from congestion charging and abolition of parking charges would be a quick way of doing that? Will he discuss such proposals with local government?
Lord Whitty: My Lords, as my noble friend knows, there are a few broad national exemptions. However, exemption from road user charges and car park charges would be a matter for local authorities. I believe that there are more direct ways of encouraging a shift to electric cars, which provide a niche market and for which VED is very low, and of trying to ensure that the environmental benefits of LPG and CNG for both cars and lorries are more widely understood. Certainly, both can make a significant contribution towards improving air quality and reducing noise and carbon dioxide emissions.
Baroness Oppenheim-Barnes: My Lords, does not the Minister agree that, as the labelling of petrol is very misleading at present, ordinary consumers will not know whether or not the 3p reduction is being passed on to them because they will not know the name of the fuel which is supposed to be reduced?
Lord Whitty: My Lords, I suspect that the oil companies will now ensure that branding is more apparent. In any case, over recent weeks it has been clear that the motorists' consciousness of petrol pricing has significantly increased and, were petrol stations not to indicate the better bargain as a result of the Chancellor's changes, consumers would move to

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other suppliers which did brand clearly. However, noble Lords may be aware that BP and Jet are already introducing branding and advertising for those petrols.
Baroness O'Cathain: My Lords, in response to the question of the noble Lord, Lord Ezra, on the pricing and supply of low sulphur fuel, the Minister said that up to one-third of present supplies were in fact low sulphur fuel. If that is so, and if the tax reduction of 3p per litre will be available once all supplies of low sulphur fuel are available, should not at least one-third of the 3p—that is, 1p—be deducted from the 81.9p a litre that we are all paying for unleaded fuel at the moment? That would bring the price down to 80.9p per litre.
Lord Whitty: My Lords, the Pre-Budget Statement did not immediately introduce the change in tax. That change will come into effect in April. At that point ultra-low sulphur petrol which is going through the general system will be charged at the lower rate of duty.

Tax Complexity
2.44 p.m.
Baroness Noakes Baroness Noakes asked Her Majesty's Government:
How they intend to respond to the Tax Manifesto published recently by the Institute of Chartered Accountants.
Lord McIntosh of Haringey: My Lords, as with other representations he receives on tax, the Chancellor of the Exchequer will give due consideration to those proposals in making his Budget decisions.
Baroness Noakes: My Lords, I am grateful to the noble Lord for that reply. I should declare an interest as a council member of the Institute of Chartered Accountants.
Does the Minister agree, to select one of the institute's 10 tenets for a better tax system, that the tax rules should be simple, understandable and clear in their objectives? Does he agree also that, with Finance Acts of 600-plus pages as we had this year, the current tax system is far from simple, understandable and clear?
The Government introduced a system of setting out their main objectives, aims and targets in public service agreements and service delivery agreements covering what they are trying to achieve. Will the Minister please explain why no mention of achieving simplicity, understandability or clarity in the tax system can be found anywhere in those agreements for either the Treasury or the Inland Revenue? Does this mean that the Government are not in any sense committed to simplification?
Lord McIntosh of Haringey: My Lords, I agree with several of the 10 tax tenets set out in the appendix to the ICA report. It is an interesting, worthwhile and constructive report. However, the length of a Finance Bill is not necessarily an indicator of whether or not it is a good Bill. The first project of the tax law review body chaired by the noble and learned Lord, Lord Howe of Aberavon, is the draft capital allowances Bill, which is substantially longer than the legislation it replaces. But that is not necessarily a bad thing if it is also much clearer.
Lord Goodhart: My Lords, as a member of the tax law review committee, can I ask the Minister whether he agrees that, although sheer length may not be a test, what we have had in the past three Budgets and seem likely to get in the next is a great many pages taken up with little bits and pieces with no specific theme behind them? Does he agree that items such as little reliefs for, let us say, venture capital tend to be largely useless and clutter up the statute book appallingly?
Lord McIntosh of Haringey: My Lords, I cannot accept any assumptions which the noble Lord, Lord Goodhart, may make about the next Budget. But it is true that there has to be a trade-off. If we are responsive to those who point out defects in the tax system and try to deal with such defects quickly, inevitably some of that will add to the existing tax structure without a fundamental reform. We have to make a choice as to whether it is important to be responsive to legitimate pressure, or whether we say that we cannot do anything because we have a longer-term project to simplify taxes. There is no ideal solution to this problem.
Lord Saatchi: My Lords, does the Minister agree that one of the main recommendations that the institute makes in its report is that this second Chamber could perhaps play more of a role in the scrutiny of financial legislation? Will he therefore consent to join myself and other interested Peers in an attempt to see if we can obtain cross-party consensus to examine ways in which the procedures of your Lordships' House can be modernised in the area of tax and other Treasury affairs?
Lord McIntosh of Haringey: My Lords, I welcome the return of the noble Lord, Lord Saatchi, to a theme which he has pursued quite legitimately for a considerable period of time. He will understand that, whatever I might say as a citizen, it is not easy for me to respond when I speak on behalf of the Treasury in this House. It would be difficult therefore for me to join a group of the kind he suggests.
However, perhaps I may say that I feel I was somewhat abrupt in my response to the noble Lord when he raised the issue of simpler tax structures in the debate on the Pre-Budget Report. I was over-simplistic in my replies. The noble Lord deserves a fuller response at some stage, which I hope I shall have an opportunity to give him.
Lord Barnett: My Lords, as someone who has put much complex tax legislation on the statute book, I declare an interest. Can my noble friend tell the noble Lord, Lord Saatchi, that, while a number of us may be interested in joining such an all-party committee, the plain fact is that most tax legislation, under any government, will be complex? It would be foolish to pretend, as the noble and learned Lord, Lord Howe of Aberavon, pointed out in his excellent report, that tax legislation is other than complex and, therefore, by its nature, difficult for any committee, however good—even one chaired by the noble Lord, Lord Saatchi—to simplify.
Lord McIntosh of Haringey: My Lords, I share with my noble friend Lord Barnett admiration for the noble and learned Lord, Lord Howe, and his chairmanship of the steering committee of the tax law re-write project. The project goes back over tax laws for a period of 200 years. Inevitably there will be an accretion and matters to be put right. It rather reminds me of the bursar of an Oxford college who rejected the college's investment policy on the grounds that the past 200 years had been wholly exceptional.
Lord Northbrook: My Lords, will the Minister admit that under the current Government capital gains tax was made much more complicated by the introduction of the taper relief? If he will not admit that, will he explain how it has become simpler?
Lord McIntosh of Haringey: My Lords, the taper relief replaced the previous relief, which was not called "taper". There was no addition in complexity. There was a short-term addition in complexity when the two forms of relief operated concurrently, but that time passed quickly.
Lord Haskel: My Lords, will my noble friend agree that one of the reasons why tax legislation is so complicated is the huge tax avoidance industry operated by many members of the accountancy profession who continuously call for tax simplification?
Lord McIntosh of Haringey: My Lords, tax experts, both accountants and lawyers, are paid substantially more than those in the Inland Revenue and the Treasury who have to counter their attempts to minimise the tax burden of business and individuals. It is in taxpayers' interests that we should continue effectively to counter them.
Baroness O'Cathain: My Lords, does the Minister agree that one of the major benefits of having a complex tax system is that it is easier for any government to introduce stealth taxes?
Lord McIntosh of Haringey: My Lords, no, I am not a supporter of stealth taxes, and I shall not be trapped into the suggestion that I am.

European Union: Forthcoming Council Business
2.52 p.m.
Lord Blackwell Lord Blackwell asked Her Majesty's Government:
Whether they will undertake that the Prime Minister will not agree any significant changes to the powers and decision processes of the European Union at the forthcoming European Council unless they have been debated and approved by both Houses of Parliament.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, the treaty to be agreed at Nice will require ratification by all member states before it can enter into force. The necessary legislation must be passed in the UK before we can ratify the treaty. Parliament will therefore have its chance to decide whether or not to accept the result we achieve at Nice.
Lord Blackwell: My Lords, I thank the Minister for that Answer and ask her to go a little further. Does she accept that there are significant changes on the table at Nice which have not yet been agreed by governments; for instance, the extension of qualified majority voting, reweighting of votes in the Council and so forth? Does she also accept that experience has often shown that the preamble to treaties turns out to be as important as the articles themselves and in many cases opens the door to the extension of Community competence? In the light of that need for scrutiny, will she give an undertaking on behalf of her colleagues on the Front Bench that this House will not be told that we do not have the right to debate or vote on details of the treaty as it is brought to us?
Baroness Scotland of Asthal: My Lords, I agree that it is likely that some changes will be made at Nice. The whole purpose of the negotiations is for us to find a way forward. It is right that the matter will come before the House—indeed, both Houses will have an opportunity to debate the issue. The Nice treaty will have to be approved by both Houses of Parliament, by the passage of a Bill, before ratification. It is anticipated that an oral Statement will be made on 11th December by the Leader of the House on the outcome of Nice. Therefore, we will have a proper opportunity to discuss the matters.
Perhaps I may remind the House that the Amsterdam treaty was discussed for some five months before it was finally ratified.
Lord Tomlinson: My Lords, does my noble friend agree that if, following the Nice summit, there is no agreement on, for example, qualified majority voting and the extension of that principle, the size of the Commission and the weighting of votes in Council, we shall have failed the applicant countries which are seeking to join the EU, those changes at Nice being the imperative precondition to an EU which can accommodate such an enlargement?
Baroness Scotland of Asthal: My Lords, my noble friend is right in saying that those are extremely important issues. The House will know that Her Majesty's Government have been at the forefront in arguing for a proper enlargement, and the new countries are anxious that we should be in good form before they join us.
Lord Elton: My Lords, is it necessary for all the member states to ratify the treaty before it comes into effect? If it is not, what is the status of those countries which do not ratify it?
Baroness Scotland of Asthal: My Lords, it is important for countries which may at Nice agree in outline a draft treaty to ratify it thereafter. Parliament will have to approve the treaty so, in theory, it would be possible for this House and the Parliament of any other country to reject it. If that were to happen, there would be a partial or incomplete renegotiation of the text with other member states, as happened when the Danes rejected the Maastricht Treaty in their referendum. Therefore, it is possible for countries to do that, but we are hopeful that the arrangement we arrive at in Nice will prove capable of being ratified by all member states.
Lord Wallace of Saltaire: My Lords, will the Minister accept that as we intend to continue to be a full and co-operative member of the EU, with some Conservative sniping from the sidelines, the most important point is to ensure that national parliaments are able effectively to undertake their scrutiny role? Does she recognise that there have been a number of occasions, particularly in the past year, when the Government have accepted decisions within the Council of Ministers without allowing for national scrutiny? Are the Government considering how they can improve their relations with Parliament in discussing the agenda of the meetings of the Council of Ministers?
Baroness Scotland of Asthal: My Lords, I understand the premise on which the noble Lord, Lord Wallace, makes his statement but I do not necessarily agree with it. We have had an opportunity to discuss these issues and it will be important after the meeting at Nice to have a proper opportunity to debate the matter. As I have already said from the Dispatch Box, we shall have such an opportunity and I am sure that, like Members of the other place, noble Lords in this House will feast themselves on that opportunity.
Lord Bruce of Donington: My Lords, can my noble friend give an assurance on behalf of the Government that, notwithstanding any question of the consideration by both Houses of Parliament of any significant changes, the right of the appropriate Standing Committees to examine European legislation will not thereby be prejudiced in any way? Will she also give an assurance that any proposed legislation will come before the appropriate Standing Committee both in this House and in another place?
Baroness Scotland of Asthal: My Lords, I can assure my noble friend that all the usual processes will be adopted in relation to scrutiny and that the Nice treaty will be given the same attention as was given to the Maastricht Treaty when it passed through both Houses.
Lord Howell of Guildford: My Lords, does the Minister recall that when my noble friend Lord Cranborne asked a similar Question on 1st November her answer was a little fuzzy? Can we assume that today's Answer is the Government's definitive view on this important issue? Furthermore, can she assure us that when any treaty Bill comes before this House, there will be no question of being asked to approve of powers, or to reduce our power, over our national taxation or foreign policy? Will she accept that we on this side of the House are very much in favour of the enlargement process? We believe that the common agricultural policy is the chief obstacle to that, but there does not seem to be much about it in the Nice document.
Baroness Scotland of Asthal: My Lords, I can reassure the noble Lord that, whatever fuzziness befell me on the previous occasion, clarity now reigns. I can also say that the areas of veto will be retained and that there will be no change in terms of our taxation. Therefore, I hope that the noble Lord is reassured on those issues.
Lord Shore of Stepney: My Lords, will my noble friend assure me on an adjacent point? Will agreements reached on the militarisation of the European Union and the creation of a rapid reaction force also be submitted to both Houses of Parliament for approval, or will it be taken as read that we should go through the transformation of the EU into a military alliance?
Baroness Scotland of Asthal: My Lords, I do not know what we must say from this Dispatch Box to reassure my noble friend that there is to be no European army. If there is to be any change in legislation, it will come before both Houses of Parliament in the proper way. This Government will ensure that legislation comes before both Houses so that they can comment, as is proper.

Nuclear Waste
3.1 p.m.
Lord Winston Lord Winston asked Her Majesty's Government:
What is their policy on the management of nuclear waste.
Lord Whitty: My Lords, the Government's policy is that radioactive wastes should be managed in ways that protect, now and in the future, the safety of the public, the workforce and the environment. The UK Government and the devolved administrations are about to publish a consultation paper to set out

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detailed proposals. This will begin the process which will lead to the implementation of a radioactive waste management policy that is capable of commanding widespread support across the UK.
Lord Winston: My Lords, I am grateful to my noble friend for that reply. Does the Minister accept that the need to research a suitable site, or sites, make option appraisals and commission and construct deep repositories, if that appears to be the most favourable solution, means that disposal will take at least 50 years? Does my noble friend agree that there is a need for urgency in decisions on this matter, given that we need to protect our children and our children's children?
Lord Whitty: My Lords, deep disposal was the preferred option in the report of the Select Committee, but other options will be covered in the consultation. As to timescale, the Select Committee indicated that it would take over 20 years to establish the policy and perhaps up to 50 years to implement. This is an extremely complex area with very long-term implications. It is important that all of those complexities are addressed, and the consultation paper will begin that process.
Baroness Platt of Writtle: My Lords, I am pleased to hear that a consultation paper is to be published, because the Select Committee made its recommendations a long time ago. As the Minister indicates, if we are to achieve the right solution for the future, the consultation period will be very long. Will the Government hasten to provide a Green Paper and a commission? Does the Minister agree that those building blocks need to be put in place as soon as possible if the consultation process is to succeed?
Lord Whitty: My Lords, this is a complex matter. The Government will shortly produce a consultation paper which will begin the process which the noble Baroness seeks.
Lord Ezra: My Lords, can the Minister confirm that the long delayed consultation paper will clearly indicate the various options, and their pros and cons, so that a decision after consultation can be reached once and for all and action taken?
Lord Whitty: My Lords, the consultation paper will be primarily about the way in which to reach conclusions and how to achieve the widest possible consensus on the options. Clearly, it will refer to the options but will not make recommendations. Considerable further work and input from all the parties will be required before we can be clear about the best options for what is a very long-term process.
Lord Stoddart of Swindon: My Lords, bearing in mind the reported cost of £4 billion to decommission Dounreay, what is the estimated cost of
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decommissioning all nuclear establishments and managing the subsequent waste over a very long period of time?
Lord Whitty: My Lords, the cost of decommissioning and managing the waste thereafter depends on both the programme for decommissioning and the option adopted to manage the waste. I do not believe, therefore, that I can give my noble friend a clear answer, even if I sought further advice upon it. In any case, we are dealing with nuclear waste that already exists and is being produced by the current generation of nuclear power, irrespective of future decommissioning costs. We must find a solution for that as well as any additional costs caused by decommissioning.
Lord Burnham: My Lords, does the nuclear waste to which the noble Lord refers include the three nuclear submarines which Her Majesty's Government will make available to the rapid reaction force, otherwise known as the European army?
Lord Whitty: My Lords, I do not believe that the Question has much to do with a European army. I do not believe that we propose either a European army or navy. It is intended that the programme for managing nuclear waste should, as far as is compatible with national security, deal also with military nuclear waste.
Lord Berkeley: My Lords, can my noble friend tell the House how much nuclear waste is imported from other countries for reprocessing here? Does the Minister have any plans to reduce that nuclear waste, at least until we have a proper plan to dispose of our own?
Lord Whitty: My Lords, we do not import nuclear waste in the sense in which my noble friend puts it. We take fuel for reprocessing. In each of the contracts with other countries for reprocessing that fuel there is an option to return the waste so created to the country of origin. It is our policy that that option should be exercised.

Disqualifications Bill
3.7 p.m.
Report received.
Clause 1 [Amendment of section 1(1)(e) of the Disqualification Acts]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 1:
Page 1, line 9, after ("than") insert ("the Republic of").
The noble Lord said: My Lords, Amendment No. 1 is a modest amendment which seeks to correct what I hope is an oversight. In proposing to amend the House of Commons Disqualification Act, the Bill refers only to Ireland. In common English that normally means the whole of the island of Ireland. Those who come from Northern Ireland are just as much Irish as those

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from the south. The Government of the Republic claimed the whole of Ireland as their territory, although they modified the Irish constitution following the Good Friday agreement. They have conventionally referred to themselves as the Government of Ireland so as to imply a claim to the whole island and that they speak for all of it. But that is no reason why our legislation should do the same, particularly since the Good Friday agreement.
Amendment No. 1 refers to the House of Commons Disqualification Act. The other amendments in the group, Amendments Nos. 5 to 7, 9 to 11, 13 and 15, make the same correction to later references to Ireland where the intention is to refer to the Republic of Ireland. When one refers to the parliament of the Republic, as do most of the later amendments, it might be thought more acceptable to omit the words "Republic of" so as to preserve the translation of the official Irish name of the parliament, which also appears quite properly in the Bill, even though that would be just as objectionable given the underlying principle. I believe that Amendment No. 1 is slightly more important because that alters only our legislation and does not refer particularly to the parliament but to the House of Commons Disqualification Act. I beg to move.
Viscount Cranborne: My Lords, I rise to support my noble friend Lord Cope. The noble and learned Lord the Minister will remember that before the Italian Risorgimento Metternich used to refer to Italy as a geographical expression. I think that Ireland is still a geographical expression and perhaps also a cultural expression. This is a highly political Bill. Like my noble friend, I am certainly not in favour of the principle of the Bill, a point which the noble and learned Lord will no doubt by now have gathered. But if he is going to do this foolish thing, it would be sensible if the wording of the Bill reflected the political realities of the island of Ireland, in which there are still two polities rather than one, however much the government of the day may be pushing us in the latter direction.
Lord Molyneaux of Killead: My Lords, I have always taken the view that a rather more accurate description would be the "Irish Republic". I base my thinking on the wise words of a much respected former Prime Minister of the United Kingdom, the late Clem Attlee. When, after the Act had been passed in the Dail, he was confronted on the issue of what the international title should be, he said, "Call themselves what they like. They remain what they are". That was very wise guidance.
Lord Shutt of Greetland: My Lords, I rise to oppose this series of amendments. The advantage of a six-hour journey to your Lordships' House rather than one of fewer than three hours has meant that I have been able to read the entire Committee stage of the Bill. It is quite interesting that during the Committee stage the word "republic" was not used by any speaker. That begs another question as to where this series of amendments
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has come from. We all know that when we talk about Northern Ireland language is incredibly important. It is no less so in the South.
I have in my hand a copy of the constitution of Ireland. Article 5 states:
"Ireland is a sovereign, independent, democratic state".
Nowhere between the pages of the document does the word "republic" appear. It seems to me that when other countries—other states—use English, whether as a first or second language, there is a certain courtesy in using the names of their states as they use them. I cannot believe—I have not looked this up—that in any double taxation agreements with the United States of America we refer to that country as the Republic of the United States of America. Therefore, looking at good accord with people nearby, we should stick to what they use. They use "Ireland" and in certain cases "the Government of Ireland".
Lord Laird: My Lords, I rise to support the amendments. Our problem is that the government of the Irish Republic always seek to have everything both ways. It is all very well saying in the constitution that they have a jurisdiction over the entire island of Ireland. As chairman of the Ulster Scots Agency, I talk to the people in Dublin about quotas for the Garda Siochana in the same way as the House approved the other day for the Police Service of Northern Ireland. Yet when I point out to them that, according to their definition—not my definition—20 per cent of the population of the island of Ireland are ethnic Ulster Scots and so we want 20 per cent representation on the Garda Siochana, we suddenly discover that when they refer to Ireland they are referring only to 26 counties; so it is then down to 2 per cent.
We need clarity and honesty on this matter. What we have is a government in the Irish Republic for whom words are cheap—words mean whatever you want them to mean. It is an Alice-in-Wonderland world. Therefore, I should like clarity and I support the amendments.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, the term "Ireland" is used correctly, is unambiguous and is in accordance with established practice. Since the conclusion of the British-Irish agreement in 1998 it has been the practice of both the British Government and Irish Government to refer to "Ireland" rather than "the Republic of Ireland" when the reference is in an international context. To accept the amendments would make the drafting of the Bill inconsistent with the practice of the Government in other legislation. Therefore, we oppose the amendment moved by the noble Lord, Lord Cope, and the other amendments in the group.
3.15 p.m.
Baroness Park of Monmouth: My Lords, before the noble and learned Lord sits down, how does he

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reconcile what has been said with the fact that new Article 2 of the constitution of the Republic of Ireland states:
"It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation"?
Article 3 goes on to refer to the,
"firm will of the Irish nation … to unite all the people who share the territory of the island of Ireland".
and,
"recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people".
It seems to me that those phrases in themselves make it quite clear that the government in Dublin do not yet think that they represent the whole of Ireland. That is the point we are making. We are not raising any minor issue. It is an issue of whether we are talking about a part of a nation or a whole nation.
Lord Falconer of Thoroton: My Lords, with respect, there is no inconsistency between the extracts from the Irish constitution read out by the noble Baroness and the approach taken by the United Kingdom Government and, to avoid confusion, the Republic of Ireland Government that when in an international context "the Republic of Ireland" is referred to, it is referred to as "Ireland". That is the approach taken by both governments, including this Government, in legislation. It is right that that practice, having been adopted in legislation, should be continued; otherwise, there would be inconsistencies between this piece of legislation and other legislation. Whether that was the right or wrong course from the point of view of drafting is not quite the issue. From the point of view of a sensible approach to legislation, one should be consistent. I do not think that there is any inconsistency between that and the extracts from the constitution read by the noble Baroness.
Lord Alton of Liverpool: My Lords, before the Minister sits down, does he not agree that the real prize here is that, with the repeal of Articles 2 and 3, any constitutional claim by the Irish Government on Northern Ireland will pass; and as it passes so it ensures that the people of Northern Ireland have the right to continue to determine their own affairs? That is the prize at the end of the process. For those of us who claim to be Irish as well as British and hold passports from both countries, there is no conflict here. Following this debate, it is beholden on everyone to realise that you can love one country while refusing to hate another.
Lord Falconer of Thoroton: My Lords, I quite agree with the sentiment of the noble Lord's remarks. I repeat, as I have done on every occasion and as everyone involved knows, the principle of consent remains enshrined in the relations between the countries.
Lord Cope of Berkeley: My Lords, perhaps I may say to the noble Lord, Lord Shutt, that it is some time since I looked at double taxation agreements or had to
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do so for any purpose. As far as I can recollect, those that involve what we know as America refer to it as the United States of America, which is a very precise description of part of that continent; just as "the Republic of Ireland" is a very precise description of part of that island. Therefore, the noble Lord's point is not effective in that respect. There is no double taxation agreement between the United Kingdom of Great Britain and Northern Ireland, and America—only with the United States of America or with other states on that continent.
I turn to the point made by the noble Lord, Lord Alton. Articles 2 and 3 have not quite been repealed. They have been modified, as my noble friend Lady Park pointed out.
The Minister accused us of wishing to see inconsistency. I do not wish to see inconsistency. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Laird Lord Laird moved Amendment No. 1A:
Page 1, line 9, at end insert—
("() At the end insert "is a Minister in the government or chairman or deputy chairman of a committee of the legislature, of any country or territory outside the United Kingdom; or"").
The noble Lord said: My Lords, I regard this as an important amendment. I do not believe that one person should be permitted to sit here at Westminster and in another sovereign legislature, or in any one of our devolved parliaments or assemblies. The issue of the inevitable conflict of interest was elucidated in Committee in this House. However, the Government continue to listen with deaf ears.
If the Government, for reasons they still have not disclosed satisfactorily, cannot accept that a person should not be able to sit in two sovereign parliaments, does the Minister accept that a person who is in government in another nation, or is the chairman or deputy chairman of a committee of another national legislature, should not be able to sit at Westminster or in any of the devolved assemblies?
That is the purpose of this amendment; namely, to exclude a government Minister of another nation from sitting here at Westminster or in one of our devolved assemblies and to exclude a committee chairman or deputy chairman of another nation's legislature from sitting here at Westminster or in any of the other devolved assemblies.
Why should a Minister of another state be permitted to take a seat in this legislature of the United Kingdom? As has been pointed out before in this House, members of the legislature of the Republic of Ireland have not demanded this piece of legislation. Indeed, in Committee, the noble Lord, Lord Fitt, informed the House of this when he said that he "went to Ireland" and "contacted all" his,
"friends in the Irish Parliament, in Fine Gael and Fianna Fail, the two major parties, and in the Democratic Left".
He asked,
"whether any of them put forward the idea of serving in both parliaments".

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The noble Lord clearly stated that he did not receive a positive response. He continued:
"The members of Fianna Fail to whom I spoke were very cagey about this. Those of Fine Gael were very annoyed about it. Those in the Democratic Left laughed".—[Official Report, 6/11/00; col. 1257.],
I always attach great weight to comments made by the noble Lord, Lord Fitt. In this case, from what he has said, it seems clear that there is no demand for this measure from parliamentarians in the Irish Republic. Furthermore, opposition to this Bill is the more probable opinion.
As I sure noble Lords are aware, the Ulster Unionist Party has been vocal in its vigorous opposition to this legislation. That opposition has not lessened. I am not aware of any support for the measure from the Democratic Unionist Party or from the SDLP. However, some party or group may have prompted the legislation; or, in the case of the party I have in mind, it may be more accurate to say that it has demanded this legislation.
I should like to ask the Minister: of all the political parties consulted about the measure, how many were in favour of the proposals that appear in this Bill? Would the Minister consider a party to be a consultee if, in fact, it was the originator of the Bill? If a party puts forward a proposal, will it still be consulted? If it is, would the proposal be acted upon in full? Perhaps Sinn Fein/IRA was not a consultee as regards the proposals, but rather was the genesis of the measure.
Perhaps I may remind the Government that the Belfast agreement was designed to remove the latent influence of Sinn Fein/IRA on government policy and to create complete transparency. Undoubtedly, with the agreement, Sinn Fein/IRA has a transparent influence and is accountable. However, this legislation serves to confirm what many unionists suspect; namely, that the latent influence of Sinn Fein/IRA still exists. Furthermore, that influence is sufficiently strong to dictate to the Government that it wishes to see a Bill passed through Parliament for its sole benefit. How do the Government intend to bring about the decommissioning of paramilitary weapons when they permit Sinn Fein/IRA to maintain its latent influence? One can suggest only that the Government do not wish to ignore the demands of people who retain a paramilitary capability.
I stated my opposition to this Bill at the outset of our deliberations. However, it would be at least less offensive, if not more acceptable, if it could be accepted that the Ministers of other national governments and the chairman or deputy chairman of other national legislatures should be barred not only from holding office in the government of the United Kingdom, but should also be barred from membership of the assemblies and parliaments of the United Kingdom. I beg to move.
Earl Russell: My Lords, the world is not quite as simple as has been suggested by the noble Lord, Lord Laird. His argument that people should not be able to
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hold office in two separate sovereign states has a certain apparent persuasiveness. However, let me ask him to consider the case of King William III, a name not without honour in Northern Irish Protestant circles. That king was the King of England and the King of Scotland when they were two independent, sovereign states. He was also the Stadtholder of the Province of Holland. I believe that benefit accrued to all three from that relationship.
Lord Laud: My Lords, would the noble Earl agree that it is better to look forward to the future than it is to look back to the past?
Earl Russell: My Lords, the noble Lord has stated an absolute principle. I merely stated that there are exceptions to that principle, from which his Province has benefited.
Viscount Cranborne: My Lords, I am most grateful to the noble Earl. I enter into this discussion with the greatest diffidence, knowing that the noble Earl is an enormous authority on 17th century and other history. However, would he not draw a distinction between a sovereign and one of his or her Ministers? After all, we seem to have in place a perfectly satisfactory arrangement as regards the Commonwealth. Our present monarch is the head of state of a number of Commonwealth countries, but also head of a supranational organisation which includes a number of republics. Is that not a qualitative difference from that of the position of a Minister?
Earl Russell: My Lords, when we try to draw distinctions, we move in an area which may become interesting. However, it appears to be a point that should rightly be debated in Committee. Regrettably, we have now passed that stage.
Lord Lamont of Lerwick: My Lords, does the noble Earl agree that one consequence of unity of monarchs, namely, one throne for two countries, has often been that of political unification? That is precisely the point being made from the Benches opposite.
Earl Russell: My Lords, that was subsequently the consequence; namely, with the full consent of both countries, in which circumstances and in which circumstances only one might regard it as proper. It does not appear immediately to be on the table here, but my understanding of the Good Friday agreement suggests that that is the only way in which that could come about. That I regard as one of the good elements of the agreement.
Lord Alton of Liverpool: The noble Earl, Lord Russell, has taken us back to the 17th century; perhaps I may move forward two centuries. Noble Lords will recall that Mr Gladstone's Home Rule Bill came before your Lordships' House and was defeated. It attempted to create a united Ireland within a United Kingdom. If that Bill had passed through all its stages, perhaps many of the tragedies of the 20th century might have been avoided.

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I believe that at the end of the First World War, Mr Churchill observed that although much else had changed in Europe, what remained were the "dreary steeples" of Ulster. What this Bill has been trying to do is to put in place a more creative set of circumstances in which people living on the island of Ireland, as well as those living on this island, can learn to coexist in far more interesting ways which do not require us constantly to name call or to abuse.
If the noble Lord considers the matter, even his own party has moved in that direction and I commend it for that. We should recall that the Ulster Unionist Party in the European Parliament had their former Member of the European Parliament sitting in the same group in the European People's Party with members of Fine Gael. It would have been impossible to achieve that in this House or in another place. The former leader of the Alliance Party in Northern Ireland, Mr John Cushnahan, a British citizen, now sits as a Fine Gael member representing the Limerick area in the European Parliament. There are other examples of former Northern Ireland politicians who sit in the Dail. Already a more creative and fluid relationship is being built.
We need to think rather more imaginatively than perhaps we have done over the past 70 years. However, what is certain is that if we merely turn around the bloodbath and hide behind slogans like, "a united Ireland" or, for that matter, even the phrase, "a united kingdom", that will not take us anywhere.
3.30 p.m.
Lord Fitt: My Lords, I was not going to speak in the debate but I have been brought into it by the noble Lord, Lord Laird, who has quoted me repeatedly from a previous debate.
At this stage it is right that we should sympathise with the noble and learned Lord, Lord Falconer. It has been reported that he is a friend of the Prime Minister. In recognition of this, the Prime Minister has given him responsibility for the Dome, the Police (Northern Ireland) Bill and the Disqualifications Bill. If that is what he does for his friends, I should not like to be one of his enemies.
Perhaps I, too, may mention a little bit of history. It was not the 1998 Act which brought about the term "Republic of Ireland and the island of Ireland". It was brought in by the Conservative government who initiated the Anglo-Irish Agreement of 1985. I remember very well having the British text and the Irish text of the agreement delivered to my office in this building. The British text stated that it was an agreement between the Government of the United Kingdom and Northern Ireland and the Government of the Irish Republic. The Irish text stated that it was an agreement between the Government of Ireland and the Government of the United Kingdom. So there, from the word go, was the reason for the conflict.
Prior to that, when for many years I was a member of the parliament in Northern Ireland, no one had ever heard of Articles 2 and 3. It was the Anglo-Irish Agreement of 1985 which first brought that term into
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the political arena of Northern Ireland. That was the first time it was seen and heard. Since then, there has been a natural progression.
I shall repeat very shortly what I asked in the previous debate: who asked for this Bill, with all its ramifications? I have spoken to many members of Fianna Fail, Fine Gael, the Democratic Left and other minor parties in the Republic. I asked them whether they had asked for the Bill. The answer I received was no; they do not want it. They will find the Bill an embarrassment. Given the residence qualification in this country, it is highly unlikely that any member of Fianna Fail and Fine Gael will come to England and take up residence in Hackney or anywhere else to qualify for a vote and to sit here. That will not happen—it is not feasible—but it could have an effect on Sinn Fein.
Sinn Fein now claims to be an all-Ireland party. It has been rumoured—no one can say whether or not ii is true—that Sinn Fein intends to have a Member in this House. Given the probable timing of the election next year, Sinn Fein could have a candidate elected to this House in May, in addition to the two people who are currently elected.
Lord Elton: My Lords, I take it that the noble Lord is referring to the other place rather than to this House.
Lord Fitt: Yes, my Lords; I am. Sinn Fein could have someone elected to the other place, in addition to the two who are currently there. Given the emotion that would surround such an event, Sinn Fein could then fight a seat in the Republic. It could go to the electorate in the Republic of Ireland and say, "We are the only all-Ireland party, unlike Fianna Fail, Fine Gael, the Democratic Left and the SDLP".
I followed very carefully the progress of the Bill through another place. No SDLP Members spoke to the Bill or voted on it. I believe that they were highly embarrassed by the Bill. Whatever we envisage will happen, it will not be to the benefit of the SDLP I have heard only today that, at this late stage of the proceedings, the SDLP supports the Bill. It is very late in the day for it to take this attitude. One wonders what has happened between the Committee stage and now to compel the SDLP to support the Bill. I shall he glad to hear from the SDLP that it does support the Bill.
I have said already that all major political parties in the island of Ireland are opposed to the Bill. Until I am convinced that there is a genuine need for the Bill to improve relations in Northern Ireland, I shall have to express my serious misgivings about it.
Lord Cope of Berkeley: My Lords, as this is Report stage, I shall defer to another occasion asking the noble Earl, Lord Russell, why he omitted the original sovereign title of William III, "the Prince of Orange", from his list.
Earl Russell: My Lords, I apologise to the noble Lord for my error, which I realised I had made only a few moments ago.
Lord Cope of Berkeley: My Lords, I am grateful to the noble Earl. I shall defer also my comments on the general arguments which have been aired to the debate on the next amendment, which covers them more fully.
As to this amendment, the Government claim—inaccurately, in my view—that the purpose of the Bill is to correct an anomaly. The amendment draws attention to the fact that, unless the amendment is accepted, the Bill will create a new anomaly. The amendment is valuable from that point of view.
Baroness Farrington of Ribbleton: My Lords, I thank the noble Lord, Lord Cope, for drawing the attention of the House to the fact that we are at Report stage. Repetition is not helpful to your Lordships, despite the charms and historical perspective of the noble Earl.
Lord Falconer of Thoroton: My Lords, a number of points have been made—in particular by the noble Lords, Lord Laird and Lord Fitt—which deal with the principle of the Bill. I have also been asked about who supports the Bill and the position of the SDLP in relation to the Bill. Like the noble Lord, Lord Cope, perhaps I may deal with those questions when we get to the next group of amendments, which raises the question of whether or not Clause 1 should remain in the Bill. That would appear to be the appropriate point at which to deal with those issues and I would thus avoid the necessity of having to repeat myself.
The amendment moved by the noble Lord, Lord Laird, seeks, in effect, to prevent a Minister of any Commonwealth country or of Ireland being a Member of the legislature here. The Bill is not intended to remove a qualification which already exists for members of the Commonwealth, which would be the effect of accepting the amendment. It is already the case that office holders in any Commonwealth country are able to stand for election to any UK legislature and are not barred from accepting any post within that legislature.
The Government are seeking to extend the qualification to stand for election to UK legislatures to include Members of the Irish Parliament, while at the same time ensuring that measures are in place to prevent situations where conflicts of interests may occur and the selection procedure for certain kinds of posts does not allow for the use of discretion, as is the case with ministerial positions in the Assembly, which are selected by d'Hondt. The amendment does not do this—that is, it does not deal with the case where there is no discretion—and the Government therefore ask the House not to accept the amendment.
Lord Laird: My Lords, I am grateful to the noble and learned Lord for his response. I shall have to consider it. I thank all noble Lords who have spoken to the amendment. I very much respect the noble Lord, Lord Alton, and the role he has played over the years. However, I am a little confused as to his exact point; it was not very clear. Perhaps he and I might discuss the matter further.
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I make the point that, as an Ulster Unionist, I am seeking to work the Belfast agreement. Those of us who do so split our community and everything else and put ourselves at personal risk. Yet, what happens? As the noble Lord, Lord Fitt, says, legislation is pushed through this House which only makes our discomfort that much worse. It does nothing in Northern Ireland to further the Good Friday agreement.
The amendment that I propose seeks to exclude members of the Dublin Government from being Members of the Westminster Parliament. Perhaps this House could spend a bit more time examining the failures of the Dublin Government to implement the Belfast agreement in terms of human rights. Nearly three years after the signing of the agreement, the Dublin Government have not moved in any shape, sense or form on human rights, which lag considerably behind those of the United Kingdom. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 2:
Leave out Clause 1.
The noble Lord said: My Lords, the amendment seeks to leave out Clause 1. This clause is the heart of the Bill. If we pull it out of the Bill, the Bill will not live. It does not deserve to live, because it is a dangerous Bill.
I shall pose two questions to the Minister at the start in order to give him and those who advise him the maximum opportunity to reply in full. They are not new questions; they have already been hinted at this afternoon. They are entirely straightforward, but we have not received answers.
First, does the Minister accept that the Bill will mean that Sinn Fein members could be elected both to the Dail and to Westminster, and could claim to speak in the Dublin Parliament for United Kingdom constituencies? Secondly, why do the Government want that? Those questions are directed to the Minister, but they are also for other noble Lords to consider—for the Liberal Democrats and anyone else.
The first question addresses the practical effect of the Bill. As we have set out previously, we simply do not believe the Minister's explanation of the Bill's purpose. It has been said that it is a Home Office-inspired Bill, thought up entirely by our own Government to bring the Republic of Ireland into line with the Commonwealth and to allow people to hold seats in the two sovereign Parliaments at the same time.
As I reflected on this, it conjured up to me a picture of civil servants sitting in the Home Office and spotting this so-called "anomaly". One assumes that, once they realised it existed, they sat down and wrote an internal minute: "Sir Humphrey, we have just realised that when Ireland left the Commonwealth in 1949 we did not provide for Members of its Parliament to sit as Westminster MPs at the same time as being Members of the Dail, which they were able to do up until then.
We have identified three courses of action available to deal with this anomaly now that we realise it exists. Course A: we could simply keep quiet. No one complained about this at the time and, over the 50 years since, no one has mentioned it, so we do not need to mention it now. Course B: we could propose a Bill to Parliament that Commonwealth MPs should not in future be able to sit simultaneously at Westminster and in their own Parliament. That would bring Ireland and the Commonwealth into line and remove the anomaly. No one in history has ever sat in a Commonwealth Parliament and been a Member of the Westminster Parliament at the same time, and no one is ever likely to do so; so the Commonwealth should not be too concerned. Or, of course, we could take Course C: we could extend this peculiar privilege to the Republic of Ireland as well. Which course would you like us to recommend to the Home Secretary, Sir Humphrey?"
Presumably, Sir Humphrey then said something to this effect: "Having discovered this dreadful anomaly, in these days of open government we have to expect that its existence will leak, so Course A is not available. The Foreign Secretary would not want to take away a privilege from the Commonwealth—even one that it does not use—so Course B won't do either". That brings us to the Bill. "That means that we must legislate along the lines of Course C and extend the privilege to the Irish".
"But Sir Humphrey, how are we going to get that through the Parliament". "Oh, tell them it's urgent". "Urgent, Sir Humphrey—after 50 years?". "Do as you are told. Waste Parliament's time, not mine". "But we've already got 12 Home Office Bills this Session". "Well, then, this is No. 13"—and it is the 13th Home Office Bill in this parliamentary Session.
We find that scenario ridiculous. It is just as ridiculous as the government explanation of the purpose of the Bill, whether expressed by the Home Secretary in another place or by the noble and learned Lord in earlier debates. It must be the feeblest reason ever for any Bill to be presented to Parliament.
Of course, that is not the actual reason for the Bill; it is a cover story. The real reason is not ludicrous, but sinister. All the indications are that the Bill is wanted by Sinn Fein/IRA. They want to be able to have members elected for both Westminster and Dail constituencies—not to sit in both Parliaments; they do not recognise the validity of the Westminster Parliament, they do not take their seats and never have done—they want to claim to represent United Kingdom constituencies in the Dail. That would be a huge step towards a United Ireland by stealth.
So far, I cannot make out from our debates whether the Government agree that Sinn Fein will use the Bill in the way that I have set out. That is why my first question was whether they accept the likelihood, or even the possibility, of that outcome. I cannot believe that they are näve enough not to realise such a possibility; nor can we think of anyone else who is likely to want this Bill. But if they accept that possibility, why do the Government want the Bill?
Which part of the Government wants the Bill? ft is supposed to be a Home Office Bill; Home Office Ministers introduced it into another place. But I do not believe that the Home Office thought of this all by itself. So perhaps it is the Northern Ireland Office that wants it. But I have to say that the indications we have received are that the Northern Ireland Secretary wants nothing to do with the Bill—in spite of the fact that it was described to this House by the noble Lord the Captain of the Gentlemen-at-Arms as part of the "choreography" of Northern Ireland. That makes me think that my noble friend Lord Cranborne was right to suggest the other day that this measure springs from a deal done by No. 10. As the noble Lord, Lord Fitt, remarked, it is an interesting fact that the noble and learned Lord is taking the Bill through this House.
However, looking to different parts of the Government is fruitless speculation. We all know that we shall be told that the Government are all good friends; that they agree on everything; and that what we read to the contrary in the newspapers is rubbish. I can see why Sinn Fein/IRA would want the Bill, but not why the United Kingdom Government or any other Member of this House would want it. I think it can only be because they, too, secretly want to advance the cause of a united Ireland by stealth, or because they have done a deal and think that they will get something in return. The Government got nothing from Sinn Fein/IRA in return for the release of prisoners, so I am not sure why they should expect to get anything from this measure, significant as it is.
Perhaps the Irish Government believe that this would be one way to appease Sinn Fein, which still has its old agenda at the back of its mind. This device might serve its purposes and help to destabilise Northern Ireland and the United Kingdom. But, if so, what has it offered that is remotely comparable in return? As far as we know, the answer to that question is nothing. Indeed, its own constitution, the Irish constitution, would restrict this curious dual mandate to Irish citizens, because only they can stand for election in Ireland. That makes it all the more curious that the British Government should want to grant this special privilege of sitting in the two sovereign parliaments at once, not to British citizens but only to Irish citizens, or those with dual nationality. If Her Majesty's Government want it for some unexplained reason, why should this United Kingdom Parliament want it? That is the question for us to consider.
We have been told of no deal; indeed, we are told that it is solely the policy of the United Kingdom Government. We in this Parliament should stand by the Belfast/Good Friday agreement that Northern Ireland will remain fully part of the United Kingdom, as the majority of its people want for as long as they want it. We remember that part of the agreement, even if the Government want us to forget it. In our previous debates, the noble Lord, Lord Fitt, said that he did not understand the Government over this Bill: what is more, he thought that he was not meant to understand. I feel exactly the same. Anyone who accepts this clause and the Bill today will, I believe, have cause to regret it

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when it is used against our constitution. However, they cannot say that they were not told what the effect would be.
We shall not acquiesce in the weakening of our Parliament by stealth, and we shall not accept the undermining of our United Kingdom by stealth. That is why we should defeat this clause. I beg to move.
Lord Laird: My Lords, perhaps I may briefly express my support for this amendment. In view of my earlier remarks today, will the Minister indicate clearly in his response whether he thinks that this Bill is a plus or a minus for the Belfast agreement?
Lord Falconer of Thoroton: My Lords, I think it is a plus. The Government support the Belfast agreement. The British/Irish agreement in 1998, which followed the conclusion of the Belfast agreement, put on a formal basis the arrangements—
Lord Laird: My Lords, I thank the noble and learned Lord for giving way. Can he explain to us how it is that they can support the Belfast agreement? It is not in the Belfast agreement; indeed, it is nothing to do with the that agreement. No one who is a signatory to the Belfast agreement, except Sinn Fein/IRA, seems to be in favour of it. The point is that it causes considerable confusion in Northern Ireland. So how can they be in support of the Belfast agreement?
Lord Falconer of Thoroton: My Lords, that is what I was seeking to explain. Perhaps I may now do so—
Lord Cope of Berkeley: My Lords, is the noble and learned Lord replying to the debate or intervening in the speech of the noble Lord, Lord Laird? If he is replying to the debate, does he wish to speak early or to close the debate now?
Lord Falconer of Thoroton: My Lords, after the noble Lord, Lord Laird, sat down, my understanding was that he had concluded his speech. No one rose to speak at that point, so I decided to do so. I profoundly apologise to any noble Lords who wished to speak. I looked around the Chamber and no was standing up.
Lord Mayhew of Twysden: My Lords, the noble and learned Lord mistook my natural diffidence. I heard a question addressed to the noble and learned Lord from the noble Lord, Lord Laird. I thought that the noble and learned Lord, with his customary courtesy, would want immediately to explain why he could not answer it.
With no disrespect whatever to the present distinguished occupant on the Woolsack, I, for my part, regret the fact that the noble and learned Lord the Lord Chancellor is not present today. I believe that the Lord Chancellor is chairman of the legislation committee of the Cabinet. I should have liked to give the noble and learned Lord the opportunity to tell us a little, in these days of transparent government, about
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how it is that this Bill, which did not feature in the manifesto, has, notwithstanding that, managed to find a place in the Government's programme. All chairmen of the legislation committee of the Cabinet are very jealous of government legislative time.
Perhaps I may follow the scenario suggested by my noble friend Lord Cope. It would be diverting to know how the Home Office Minister charged with bringing forward this proposal would have put the matter to the legislation committee of the Cabinet, especially to the Lord Chancellor. There would have had to be a very good reason given as to why precious government time in legislation was taken up in this way. Unfortunately, the noble and learned Lord the Lord Chancellor is not in a position to respond today, but the noble and learned Lord, Lord Falconer, is. He has had plenty of time to think about this, because several noble Lords addressed the question in Committee.
A substantial constitutional change is being proposed. It is a very significant one. Any change to the disqualification rules that Parliament has previously approved for itself, and for the House of Commons in particular, is also important constitutionally. The Minister has said, "No, we don't anticipate that any member of the Commonwealth legislatures will avail themselves of this privilege; indeed, they have never done so in the past and we see no reason to suppose that they will do so in the future. Yet we think it is important that members of the Irish legislature should be able to avail themselves of it. No, we don't say that anyone we know will do so. It is just that we don't like these funny old anomalies".
Noble Lords do not need to have particularly sensitive noses to smell a rat here. All that the noble and learned Lord would say when I asked him this question in Committee was that it was not an appropriate question to ask. I have considered that curious doctrine and I am afraid that I still consider it to be an appropriate question. I hope that it will receive an appropriate answer today.
Earl Russell: My Lords, the noble Lord, Lord Cope of Berkeley, and the noble and learned Lord, Lord Mayhew of Twysden, has both complained of anomalies. I do not think that there is any question that we have an anomaly in front of us today. However, I happen recently to have read the book of Mr David Willetts on civic conservatism. Mr Willetts quotes Voltaire, with strong approval, about the contribution of anomalies to the preservation of liberty. On this matter, I happen to agree with Mr Willetts rather than the noble and learned Lord or the noble Lord, Lord Cope of Berkeley.
It is a fact, as well as an anomaly, that throughout history those who live within the same physical border have not always had the same identification of their nationality. If that is not compatible with peace, then all the perfumes of Arabia will not cleanse their ethnicity. So some way of living with the situation is, I believe, desirable. Perhaps I may recommend the attention of the noble Lord, Lord Cope of Berkeley, to another anomaly; namely, the state of Andorra, where some people believe that they are Spanish, some

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people believe that they are French and some people believe that they are neither. The people have an elected assembly and their affairs are presided over jointly by the local French préfet and the local Spanish bishop. The noble Lord, Lord Cope of Berkeley, may be reassured to know that that is where events have stopped for as long as I can remember. I believe that that precedent is relevant to this Bill.
4 p.m.
Lord Lamont of Lerwick: My Lords, I am grateful to my noble friend for moving this amendment, which I strongly support. I believe that the noble Earl, Lord Russell, was slightly on the wrong tack. It is not a question of creating anomalies; indeed, the unnecessary rectification of an anomaly without good reason is at the root of our objections.
The noble Lord, Lord Alton, referred to the phenomenon of dual passports. He also made the observation, with which no one could disagree, that it ought to be possible for someone to love his own country without hating another country. Of course one accepts that. There are, of course, those who disagree with the principle of dual passports. I am not one of them. It is not a question of loving one's own country and not hating another; it is a question of whether one can perform one's duties which contradict each other in two countries simultaneously. It is the essence of the argument on this side that it is difficult to imagine someone being able to do that in two sovereign parliaments simultaneously. That is perhaps possible in a sovereign parliament and a devolved assembly in another country, but is it possible in two sovereign parliaments where one has to swear two oaths of allegiance? It might be difficult but not impossible to represent two different sets of constituents. However, where one's function as a Member of Parliament is both to sustain and occasionally to bring down governments, that could lead to enormous conflicts of loyalty.
I am in no doubt that the principle of this Bill is highly objectionable. But what I think is much more serious is the way in which this measure has been justified. It has been put forward and justified on a basis which is utterly implausible. Initially the noble and learned Lord presented the measure as simply bringing Ireland into line with the Commonwealth as though that were a statement which had any justification because Ireland is not a member of the Commonwealth, even though there is some talk of it becoming one. However, it quickly emerged that there has been no example in history of a Member of Parliament of a Commonwealth legislature sitting simultaneously in the House of Commons. Therefore the whole basis on which the measure was justified simply did not stand up.
Then there is the extraordinary timetable of the Bill. I think I am right in saying that the Bill was first presented to the House of Commons on 22nd December, just before Christmas, when no one could pay it arty attention. It was reintroduced when Parliament came back after the Christmas break. Then we had the turn for the worse in the negotiations in
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Northern Ireland and the measure was dropped. It was then reintroduced in the Commons in June. The noble and learned Lord, Lord Falconer, referred to it as consultation with the House of Commons. He used the words "very intensive scrutiny". It comprised an angry all-night Sitting in the House of Commons who protested that there was no Report stage and that the whole thing was rushed through. Then it was presented to this House on the second day, I believe, before we rose for the Recess. The way in which this Bill has beer handled is truly shocking because it is of such significance. We strongly suspect that the real reasons have not been given.
Mention has been made of the close relationship between this country and Northern Ireland. That because it is, typically for the noble and learned Lord, a narrow basis on which to stand—rather more convincing. However, it does not tell us much simply to say that we need the measure because we have a close relationship with Northern Ireland. The measure is being put forward as if the Sinn Fein submission to the all-party committee of the Irish Parliament on the constitution had never been published. The document refers to the changes that were made to Article 2 of the Irish constitution. The claim to Northern Ireland has been dropped. Article 2 now reads:
"It is the entitlement and birthright of every person born on the island of Ireland, which includes its island and seas, to be part of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland".
Sinn Fein argues that these rights include,
"the right of citizens in the Six Counties to send representatives to the Irish legislature".
That is a freely available published document. It is extraordinary that the measure put forward by the Government does not refer to that document at all. I find that shocking. I do not believe that the Government's proposals have nothing whatever to do with the proposals of Sinn Fein. Sinn Fein's purpose is to make the relationship of Northern Ireland with the United Kingdom more ambiguous; to make the Dublin Parliament appear equi-distant from the Northern Ireland Parliament; and to make it appear as though a person elected in a constituency in Northern Ireland can equally sit in the Dail or in the House of Commons because both Parliaments have an equal right to pass laws referring to the internal affairs of Northern Ireland.
It has been said that this proposal was not mentioned in the Belfast agreement. That is an important point. This Bill is a significant measure in two ways. First, I submit that it constitutes a constitutional outrage. Secondly, it constitutes a significant addition to the Belfast agreement, if its purpose is as the Sinn Fein document states. I say with great respect to the Minister that I strongly object to the lack of candour and frankness with which the measure has been put forward. Ministers have

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described it as a small step. In a sense it is a small step; it is another small step in the betrayal of Northern Ireland.
Lord Shutt of Greetland: My Lords, the amendment that is before us has no other purpose than to scupper the Bill. The Bill makes further progress in the closer ties being forged between the two countries. It constitutes a natural evolution following the progress, admittedly sometimes halting, that has occurred since the Good Friday agreement. If only one or two people take up this measure, it could be of help to the fragile and delicate nature of that agreement. I can envisage circumstances in which it could help tremendously for someone from the unionist tradition to be present at debates in the Dail. But it is up to electors in constituencies, both North and South, to decide whether or not to vote for candidates who are also representatives of another body.
Lord Dubs: My Lords, I know nothing about the background of this Bill but I believe that noble Lords are going a little over the top. I have heard expressions such as "united Ireland by stealth" or "betrayal of Northern Ireland". Frankly, these seem disproportionate to what we are discussing here. There is no question of a united Ireland by stealth. The Belfast agreement made it perfectly clear that a United Ireland would come about only if the majority of the people of Northern Ireland wished it. That is not a process by stealth; it is part of an explicit process. I do not see how Northern Ireland would be betrayed if a politician representing a constituency in Northern Ireland were also to be elected to the Dail or were to be in the Senate in Dublin. I do not consider that a betrayal. It may not be as tidy as some noble Lords would wish, but I do not consider that it would be a betrayal of Northern Ireland and I consider it mischievous to construe it as such.
What we are talking about surely is the uniqueness of Northern Ireland in terms of the relationships between Northern Ireland and the Republic which are explicitly recognised by a variety of structures which arose through the Belfast agreement. All we are doing here is to recognise the uniqueness of Northern Ireland. I appreciate that there is an anomaly at present as regards Commonwealth countries and Ireland. However, I prefer to put the argument in terms of the unique position of Northern Ireland. If John Hume were to be elected to the Dail while retaining his seat in the other place, would that be the end of Northern Ireland? I do not understand why that is considered such an anomaly. If Seamus Mallon were to be elected to the Dail while retaining his parliamentary seat in the other place, would that be the end of Northern Ireland? I do not see that those are such enormous matters that the whole House should say that they constitute a betrayal of Northern Ireland.
It seems to me that this is a relatively minor matter. Members of this House may not like it. They may not feel that it accords with the way in which they see
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things but I believe that we should get this in proportion. It is not a revolutionary change; it is a fairly minor matter, even if it has been vested with enormous significance in some of the speeches we have heard. Put in those terms, it is not that important, but let us at least get on with the matter and pass it.
Lord Alton of Liverpool: My Lords, I support the remarks of the noble Lord, Lord Dubs, who has tried to put the debate into a reasonable context. There has been an edge to much of what has been said this afternoon that will not help the process in Northern Ireland. I always listen to the noble Lord, Lord Lamont of Lerwick, with great regard and I believe that he has a significant contribution to make to these debates. However, on this occasion his talk of betrayal has not done us a great service.
His noble friend Lady Thatcher took the first historic steps in 1985 to try to engage the Dail and the authorities in Ireland in a constitutional programme for change so that people in these islands could live alongside one another. Throughout the 1980s and 1990s, I supported the Conservative Party's brave initiatives, led by the noble Baroness, the noble and learned Lord, Lord Mayhew of Twysden, and their right honourable friend Mr John Major, in trying to engage Sinn Fein/IRA in the constitutional process. We all knew that that would lead to many dilemmas.
The noble Lord, Lord Lamont, was right to remind us that we have duties. It is not just about affections or loyalties. Those who are elected to the House of Commons or to the Irish Dail have duties, but it is not impossible to reconcile the different duties. After all, Rev. Ian Paisley sits in the European Parliament and the British House of Commons. Some Members of the Irish Parliament are British citizens and have sat previously in Northern Ireland.
Our objective should be to engage Sinn Fein in proper constitutional dialogue. When I was a member of a political party—for some of those years I was an Irish affairs spokesman—I refused adamantly to engage with Sinn Fein. I refused to meet them at any stage. I took on my own political party at a party conference when there was an attempt to mandate the Irish affairs spokesman to meet Sinn Fein. Quite properly, conference refused to pass that resolution. It was improper to seek such a requirement and I would not have been prepared to do it while Sinn Fein was engaged in a process that also relied on violence.
I recognise that, as the Unionists and others have said, the decommissioning process has not been transparent enough to determine whether violence has been totally disavowed. That issue is still on the table. Any return to violence would undoubtedly ensure that the process stopped. That would be an historic tragedy, leading to the return of violence on the streets.
If the worst result of this provision was that members of Sinn Fein took their seats in the British House of Commons and started to put their arguments where they should always have put them, I cannot see why that would be a betrayal of the people of Northern Ireland.
4.15 p.m.
Lord Fitt: My Lords, the longer that we engage in this discussion, the more glaringly obvious it becomes that it will be impossible to work the legislation. What does it mean to be an elected Member of Parliament? A Member of Parliament is elected to represent the voters of a constituency. It would be impossible for anyone to represent the interests of their constituencies in both the Dail and Westminster, because their electors would want a constituency service from their representative. The two Parliaments have different electoral systems. The Republic has proportional representation.
Can anyone imagine any member of the major political parties in the Republic—Fianna Fail, Fine Gael or the Democratic Left—coming over to Westminster to ensure that they had a residence qualification? They are not going to be elected to Westminster. The provisions will apply only in the Republic of Ireland and Northern Ireland.
The main parties in the Republic have had adequate opportunity since the Bill was introduced at the other end of this building to voice their support for it, but they want nothing to do with it. Why has no elected Member in the Republic—Back-Bencher or otherwise—stood up and spoken in favour of it? I asked the same question in Committee. The Minister has said that he has had consultations with Dublin. I should have preferred to hear a voice from the Irish Parliament saying that they wanted the Bill. So far that has not happened. Only this afternoon did I hear that, at this late stage, the SDLP has expressed its support for the Bill. I have not yet read that officially and I would be more satisfied to see it in print. Why did no SDLP Member speak or vote in favour of the Bill when it went through the House of Commons? If the Bill is so important, the three SDLP Members should at least have voted in favour of it, even if they did not speak.
The only party that can gain from the Bill is Sinn Fein. If the Government start appeasing and placating Sinn Fein, they do it to the disadvantage of the other constitutional parties in Northern Ireland. That is a very dangerous road to travel.
As a learned member of the Bar, the noble and learned Lord, Lord Falconer, knows the value of words. He would probably deny this, but I think that he is probably highly embarrassed at having to push the Bill through the House, because he cannot muster a logical argument in favour of it. If he cannot do so, I do not think that many of your Lordships can do so either.
Baroness Park of Monmouth: My Lords, I have three comments to make. First, many of those who support the Bill have suggested that, by moving against it, we are endangering the links that are developing. That is an extraordinary argument. Are they seriously saying that opposing the Bill would damage a set-up that includes the Council of the Isles, North-South agreements and many other discussions in which
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people are working together all the time? It is inconceivable that the Bill could change all that and send an unfriendly message.
Secondly, the only people who will benefit from the Bill are Sinn Fein/IRA. Gerry Adams has already been elected to a UK constituency in Northern Ireland. I he is also elected to the Dail, he will be able to say that he represents the whole of Ireland. Other members of Sinn Fein/IRA would do the same. None of the rest: of the Dail could do that.
Lastly, only yesterday the Irish Times reported that there had been a good deal of discussion in the Dail on a proposal to ban the dual mandate that allows TDs and Senators to hold local authority seats. That was recently opposed by Fianna Fail. One TD said that the Dail should reform itself first. He said:
"There have to be changes to allow us to he true parliamentarians rather than the super county councillors we are at present".
Might we not expect that the implications of the Bill would also be of interest to the Dail during such a debate? Nothing was said about it. It is a non-event for everyone in Dublin except Sinn Fein/IRA. I suspect that the reason that we are hearing nothing from Ministers is that in Dublin there is considerable anxiety lest there should be rather a large number of Sinn Fein/IRA people elected at the next election. The Bill is a threat to Dublin as well as to us.
Lord Falconer of Thoroton: My Lords, it is well known that the British Government strongly support the Belfast agreement and wish to see it work. Following the conclusion of that agreement, the British/Irish agreement was made in 1998 and that put on a formal basis links between Ireland and the United Kingdom governments. Included in that, agreement were new institutions to build on and develop the relationship between the United Kingdom and Ireland, which is close and mutually beneficial.
Essential and crucial to this new spirit of cooperation and the foundation of the new relationship between the United Kingdom and Ireland was the recognition by the Irish Government and all the parties to the Belfast agreement of the constitutional status of Northern Ireland as part of the United Kingdom—the principle of consent. In the case of the Irish Government, acceptance of that principle led them to commit themselves in the British/Irish agreement to changes in their constitution to the territorial claim to Northern Ireland so long objected to by Unionists. The Irish Government sought approval for these constitutional changes in a referendum held on 22nd May 1998, which demonstrated overwhelming support for the Belfast agreement and for the proposed constitutional changes. The changes to the Irish constitution took effect on 2nd December with the coming into effect of the British/Irish agreement and devolution in Northern Ireland.

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The constitutional changes made by the Irish Government are historic and irreversible. They represent the giving up of what has always been regarded in Ireland as very important constitutional provisions. They were given up in recognition of the new relationship between the two countries. It is in that context that we believe it appropriate to recognise the very close relationship between the United Kingdom and Ireland, which is much strengthened and deepened by the new British/Irish agreement and by the Belfast agreement itself.
When the Irish constitutional changes took effect on 2nd December, we believed it only right to follow those changes by removing in this Bill one of the last distinctions made in domestic legislation between Ireland and those other countries with which we have an equally warm and special relationship through the Commonwealth.
I have tried to emphasise on every occasion the very strong relationship that now exists between the two countries. We very strongly believe that placing Irish citizens in the same favoured position as Commonwealth citizens will benefit that relationship both by building good will and by demonstrating the Government's commitment to build on the Belfast agreement in the spirit of co-operation of that agreement. I believe that that will greatly benefit the political process and I cannot accept that it means in any way that the independence of the House of Commons, the Northern Ireland Assembly or the constitutional position of the United Kingdom and Northern Ireland will be in any way undermined.
I emphasise that the purpose of this Bill is not to bring about Irish integration by the back-door. The place of Northern Ireland in the United Kingdom is confirmed by the Belfast agreement, the British/Irish agreement and in the Northern Ireland Act 1998. We already have many mechanisms in place, as the noble Baroness, Lady Park of Monmouth, specifically identified in her speech, for North-South and East-West co-operation. This Bill brings the people of Ireland into line with the people of Commonwealth countries with whom we have similar links.
In answer to the question posed by the noble Lord, Lord Cope, whether I accept that a Sinn Fein candidate could be elected both to the Dail and Westminster, the answer is yes, he could in theory, as a result of this Bill. As to whether he would be able to speak for his United Kingdom constituents in the Dail and his Irish constituents in the United Kingdom, the answer is no. He would speak for the constituents for whom he had been elected in the appropriate legislature. That is the constitutional position as a result of this Bill.
This Bill came about for the reasons I have given. I earnestly ask Members of the House to consider the Bill on its merits in the context of the Belfast agreement rather than in the context of the various theories which have been proposed in the course of this debate. I earnestly ask Members of the House to reject the amendment.
Lord Eden of Winton: My Lords, is the noble and learned Lord able to respond to the point raised by the noble Lord, Lord Fitt, and others; namely, to what extent has there been a demand, a campaign or a request for this legislation in the Irish Republic?
Lord Falconer of Thoroton: My Lords, this Bill has the support of the Irish Government. They are the elected government of Ireland, which represents very significant support.
Lord Alton of Liverpool: My Lords, before the noble and learned Lord sits down, would he care to reflect for a moment that real progress has been possible in the past 15 years because, when his party were in opposition, it quite properly gave full support to the previous government and that progress has been made since this Government came to power because Her Majesty's Opposition have given them great support? If bipartisanship were to break down and we were to begin questioning every single detail of every single Bill in a hostile way, that would undermine the progress that has been made.
Lord Falconer of Thoroton: My Lords, I fully recognise the significance of bipartisan support for many aspects of the progress that has been made in the peace process in Northern Ireland. I would very much regret it if such bipartisanship broke down. Perhaps I may make one further point. The SDLP also supports this Bill.
Lord Cope of Berkeley: My Lords, we support the Belfast agreement and we have done so consistently, as the House knows. We support the new Anglo-Irish agreements which have been referred to. But this is a sinister clause in a sinister Bill. I seek the opinion of the House.
4.26 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 165; Not-Contents, 152.

Division No. 1

CONTENTS

Aberdare, L.

Bowness, L.

Allenby of Megjddo, V.

Brabazon of Tara, L.

Ampthill, L.

Brigstocke, B.

Anelay of St Johns, B.

Brougham and Vaux, L.

Ashcroft, L.

Burnham, L.

Astor, V.

Buscombe, B.

Astor of Hever, L.

Butterworth, L.

Attlee, E.

Byford, B.

Baker of Dorking, L.

Campbell of Alloway, L

Barber, L.

Campbell of Croy, L.

Bell, L.

Carnegy of Lour, B.

Belstead, L.

Chadlington, L.

Blackwell, L.

Chalfont, L.

Blaker, L.

Chilver, L.

Blatch, B.

Cockfield, L.

Bledisloe, V.

Coe, L.

Boardman, L.

Colwyn, L.

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Cooke of Islandreagh, L.

Molyneaux of Killead, L.

Cope of Berkeley, L.

Monro of Langholm, L.

Craigavon, V.

Monson, L.

Cranborne, V.

Montagu of Beaulieu, L.

Crickhowell, L.

Montrose, D.

Cuckney, L.

Moore of Lower Marsh, L.

Cumberlege, B.

Moore of Wolvercote, L.

Dean of Harptree, L.

Mowbray and Stourton, L.

Deedes, L.

Moynihan, L.

Dixon-Smith, L.

Murton of Lindisfarne, L.

Dundee, E.

Naseby, L.

Eccles of Moulton, B.

Newton of Braintree, L.

Eden of Winton, L.

Noakes, B.

Elles, B.

Northbrook, L. [Teller]

Elliott of Morpeth, L.

Northesk, E.

Elton, L.

Norton of Louth, L.

Feldman, L.

O'Cathain, B.

Fitt, L.

Oppenheim-Barnes, B.

Fookes, B.

Oxfuird, V.

Fraser of Carmyllie, L.

Palmer, L.

Freeman, L.

Palumbo, L.

Gardner of Parkes, B.

Park of Monmouth, B.

Geddes, L.

Pearson of Rannoch, L.

Gilmour of Craigmillar, L.

Perry of Southwark, B.

Glenarthur, L.

Peyton of Yeovil, L.

Glentoran, L.

Pilkington of Oxenford, L.

Goschen, V.

Platt of Writtle, B.

Gray of Contin, L.

Prentice, L.

Griffiths of Fforestfach, L.

Rawlings, B.

Hanham, B.

Rawlinson of Ewell, L.

Hanningfield, L.

Rees, L.

Hanson, L.

Renton, L.

Harris of Peckham, L.

Renton of Mount Harry, L.

Henley, L. [Teller]

Roberts of Conwy, L.

Higgins, L.

Rotherwick, L.

Hodgson of Astley Abbotts, L.

Ryder of Wensum, L.

Holderness, L.

Saatchi, L.

Home, E.

Sanderson of Bowden, L.

Hooper, B.

Seccombe, B.

Howe, E.

Selborne, E.

Howell of Guildford, L.

Sharples, B.

Hunt of Wirral, L.

Shaw of Northstead, L.

Hurd of Westwell, L.

Shrewsbury, E.

Inglewood, L.

Simon of Glaisdale, L.

Jopling, L.

Skidelsky, L.

Slim, V.

Kelvedon, L.

Soulsby of Swaffham Prior, L

Kingsland, L.

Stewartby, L.

Kirkham, L.

Strange, B.

Knight of Collingtree, B.

Strathclyde, L.

Laing of Dunphail, L.

Taylor of Warwick, L.

Laird, L.

Tebbit, L.

Lamont of Lerwick, L.

Tenby, V.

Liverpool, E.

Thatcher, B.

Lucas, L.

Thomas of Gwydir, L.

Luke, L.

Trefgarne, L.

Lyell, L.

Trumpington, B.

McColl of Dulwich, L.

Vivian, L.

Mackay of Ardbrecknish, L.

Waddington, L.

Mackay of Clashfern, L.

Walker of Worcester, L.

MacLaurin of Knebworth, L.

Wilberforce, L.

Mancroft, L.

Wilcox, B.

Marsh, L.

Williamson of Horton, L.

Mason of Barnsley, L.

Willoughby de Broke, L.

Mayhew of Twysden, L.

Young, B.

Miller of Hendon, B.

Younger of Leckie, V.

NOT-CONTENTS

Acton, L.

Bach, L.

Addington, L.

Barker, B.

Alton of Liverpool, L.

Barnett, L.

Amos, B.

Bassam of Brighton, L.

Andrews, B.

Beaumont of Whitley, L.

Ashley of Stoke, L.

Berkeley, L.

Ashton of Upholland, B.

Bernstein of Craigweil, L

550

Blackstone, B.

Layard, L.

Borrie, L.

Lea of Crondall, L.

Bradshaw, L.

Lipsey, L.

Bragg, L.

Lockwood, B.

Brennan, L.

Lofthouse of Pontefract, L.

Brett, L.

Longford, E.

Brooke of Alverthorpe, L.

Macdonald of Tradeston, L.

Brookman, L.

McIntosh of Haringey, L. [Teller]

Bruce of Donington, L.

Burlison, L.

McIntosh of Hudnall, B.

Carter, L. [Teller]

MacKenzie of Culkein, L.

Chichester, Bp.

Mackenzie of Framwellgate, L

Christopher, L.

McNally, L.

Clarke of Hampstead, L.

Maddock, B.

Cledwyn of Penrhos, L.

Mallalieu, B.

Clinton-Davis, L.

Massey of Darwen, B.

Cocks of Hartcliffe, L.

Merlyn-Rees, L.

Cohen of Pimlico, B.

Mishcon, L.

Crawley, B.

Mitchell, L.

Dahrendorf, L.

Morris of Manchester, L.

David, B.

Newby, L.

Davies of Coity, L.

Northover, B.

Davies of Oldham, L.

Oakeshott of Seagrove Bay, L.

Dean of Thornton-le-Fylde, B

Paul, L.

Desai, L.

Peston, L.

Dholakia, L.

Plant of Highfield, L.

Dixon, L.

Prys-Davies, L.

Dubs, L.

Puttnam, L.

Eatwell, L.

Ramsay of Cartvale, B.

Elder, L.

Randall of St. Budeaux, L.

Evans of Temple Guiting, L.

Rea, L.

Falconer of Thoroton, L.

Redesdale, L.

Falkland, V.

Rennard, L.

Farrington of Ribbleton, B.

Richard, L.

Faulkner of Worcester, L.

Rodgers of Quarry Bank, L.

Filkin, L.

Roper, L.

Gale, B.

Russell, E.

Gibson of Market Rasen, B.

Sainsbury of Turville, L.

Gilbert, L.

Sawyer, L.

Goodhart, L.

Scotland of Asthal, B.

Goudie, B.

Scott of Needham Market, B.

Gould of Potternewton, B.

Serota, B.

Gregson, L.

Shepherd, L.

Grenfell, L.

Shutt of Greetland, L.

Hamwee, B.

Simon, V.

Hardy of Wath, L.

Smith of Gilmorehill, B.

Harris of Greenwich, L.

Stone of Blackheath, L.

Harris of Haringey, L.

Strabolgi, L.

Harris of Richmond, B.

Symons of Vernham Dean, B.

Harrison, L.

Taverne, L.

Haskel, L.

Taylor of Blackburn, L.

Hayman, B.

Thomas of Walliswood, B.

Hilton of Eggardon, B.

Thomson of Monifieth, L.

Tomlinson, L

Hogg of Cumbernauld, L.

Tope, L.

Hollis of Heigham, B.

Tordoff, L.

Howells of St. Davids, B.

Turnberg, L.

Hoyle, L.

Turner of Camden, B.

Hughes of Woodside, L.

Uddin, B.

Hunt of Kings Heath, L.

Varley, L.

Irvine of Lairg, L. (Lord Chancellor)

Wallace of Saltaire, L.

Walmsley, B.

Islwyn, L.

Warner, L.

Jacobs, L.

Weatherill, L.

Janner of Braunstone, L.

Wedderburn of Charlton, L.

Jay of Paddington, B. (Lord Privy Seal)

Whitaker, B.

Whitty, L.

Jenkins of Putney, L.

Wilkins, B.

Judd, L.

Williams of Elvel, L.

King of West Bromwich, L.

Williams of Mostyn, L.

Kirkhill, L.

Woolmer of Leeds, L.

Resolved in the affirmative and amendment agreed to accordingly.
4.37 p.m.
Clause 2 [Disqualification for Ministerial office in Northern Ireland]:
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton) moved Amendment No. 3:
Page 1, line 15, at end insert (", or
() be nominated under paragraph 7 of Schedule 1 to the Police (Northern Ireland) Act 2000 (members of the Northern Ireland Policing Board drawn from the Northern Ireland Assembly),").
The noble Lord said: My Lords, after the feast, we come to a small part of the menu. This group of amendments precludes Ministers, committee chairmen or deputy chairmen in the Irish Parliament who are also Members of the Northern Ireland Assembly from being political appointees to the police board.
This amendment has been tabled in response to a point raised by the noble Lord, Lord Rogan, in the Lords Committee stage of this Bill and a subsequent amendment which he presented for inclusion at the Report stage of the Police (Northern Ireland) Bill. Noble Lords will recall that my noble and learned friend Lord Falconer undertook to consider the amendment tabled by the noble Lord, Lord Rogan, in the context of the Disqualifications Bill rather than the police Bill. This amendment has no effect on independent applications or nominations to the police board by office holders in the Irish Parliament. I beg to move.
Lord Molyneaux of Killead: My Lords, in the absence of my noble friend Lord Rogan, I thank the noble and learned Lord for his response and the fact that he has taken heed of the valid case put forward by my noble friend.
On Question, amendment agreed to.
Lord Molyneaux of Killead Lord Molyneaux of Killead moved Amendment No. 3A:
Page 1, line 15, at end insert ("or

(d) stand for election as Presiding Officer or as Deputy Presiding Officer, or to be elected as such, or

(e) be nominated as a Chairman or Deputy Chairman of a statutory committee or ad hoc committee").

The noble Lord said: My Lords, in moving Amendment No. 3A, I wish to speak also to Amendment No. 3B. We have been over this ground before. Therefore, given that there are other matters to attend to today, I do not intend to take up the time of the House.
The amendments have an important effect. They add to the positions within the Northern Ireland Assembly which cannot be held by a person who holds a "disqualifying office". In Committee the noble and learned Lord, Lord Falconer, indicated that the position of the presiding officer is not subject to the potential conflict of interest to which other positions are subject because the presiding officer has no role in policy development or initiating policy. I wonder whether the noble and learned Lord was suggesting
552
that a potential conflict of interest does not arise unless both roles in question involve policy—either the development or initiation of policy. I believe that that is a clear distinction. Does such a suggestion adequately explain the intrusion of the Northern Ireland Assembly Commission? If the presiding officer is a member of the commission, will he not be excluded anyway from being a member of that commission? If that is so, why do the Government not wish to include this position as one of the exclusions on the face of the Bill?
The issue of deputy chairman and deputy chairman of committees raises its head again. On this issue we have been straightforward in asking if the holding of the position of a Minister in the Northern Ireland Assembly and the position of a committee chair in the legislature of Ireland raises a potential conflict of interest. We would be grateful for any clarification that the noble and learned Lord can supply.
I wonder why it is that a Minister in the Government of Ireland holding a position of committee chair in Northern Ireland does not provide the same potential conflict of interest, because, on the face of it, there appears to be some contradiction. If it is conceded that a potential conflict of interest does exist, why has such a position been permitted to appear in the Bill?
All I am suggesting in these amendments is a very small measure of consistency on the three points I have mentioned, which is admittedly a small request in the context of what we all have to regard as a rather shoddy and undesirable piece of legislation. I beg to move.
Lord Falconer of Thoroton: My Lords, this amendment is concerned with the position of Presiding Officer or Deputy Presiding Officer: They have not been added to the list of disqualifying offices because they are elected. Unlike Ministers in the Executive, the Presiding Officer and Deputy Presiding Officer are elected by the Assembly voting together. The Assembly may vote to replace the Presiding Officer at any time. Consequently, the Government do not believe it to be right or necessary to legislate to restrict the Assembly's discretion to elect the person whom they believe to be the most appropriate man or woman for the post.
The Bill has now been extended to preclude chairmen and chairmen of statutory committees in the Assembly from holding one of the disqualifying offices in the Irish Parliament. The Bill does not include the chairmen and deputy chairmen of ad hoc committees simply because they are neither appointed by the d'Hondt process nor do ad hoc committees carry out the same role in making policy and legislation as statutory committees. I can confirm the point raised by the noble Lord, Lord Molyneaux, at the outset of his remarks that a role in policy initiation could give rise to the sorts of conflict that have been referred to before.
The noble Lord, Lord Molyneaux, also raised a question in regard to the Presiding Officer's position as head of the Assembly Commission: that is, if

553
commission members have been excluded, why has not the Presiding Officer? The Presiding Officer's position as head of the Assembly Commission will not be affected by the amendment relating to commission members because, as we have said on previous occasions, the Presiding Officer is elected by the Assembly, and it should be for Assembly Members to decide on who the postholder should or should not be. By virtue of Section 40 of the 1998 Act, the Presiding Officer must be a member of the Assembly Commission, and Members of the Assembly will be able to assess not only a candidate's suitability for the position of Presiding Officer but also for any other post that is automatically awarded to that position, the head of the Assembly Commission included.
The Assembly is also entitled to elect a new Presiding Officer at any time it wishes. This means that, should there be a change in the circumstances of the Presiding Officer, such as having been chosen to join the Irish Government, say, the Assembly itself would decide whether or not this constituted a clash of interests.
Lord Molyneaux of Killead: My Lords, in the light of the clarification provided by the noble and learned Lord, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3B* not moved.]
4.45 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 4*:
Page 1, line 18, at end insert—
("() A person holding office as a member of the Northern Ireland Policing Board in accordance with paragraph 7 of Schedule 1 to the Police (Northern Ireland) Act 2000 ceases to hold that office on becoming the holder of a disqualifying office.").
On Question, amendment agreed to.
[Amendments Nos. 5 to 7 not moved.]
Lord Molyneaux of Killead Lord Molyneaux of Killead moved Amendment No. 7A*:
Page 2, line 9, at end insert ("; or
() a member of the legislature of Ireland"").
The noble Lord said: My Lords, although this amendment covers what has already been referred to and that which has been spoken to on other occasions, I think there is a need for this to be looked at again and perhaps for some consideration to be given to the points in the amendment, but I will not make a long speech on this matter. However, I raise it if only to discern whether the noble and learned Lord has had some further thoughts on this subject. I beg to move.
Lord Falconer of Thoroton: My Lords, very briefly, this amendment seeks to make it impossible for a Back-Bench Member of the Irish Parliament to take up office in the Northern Ireland Assembly. I and my noble friend Lord Bassam have already explained the Government's view on this point a number of times. We do not believe that there is an automatic conflict of interest involved if an individual is a Minister in one
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place and a Member in another, or if an individual is a Member in one place and a committee chairman in the other. In neither circumstance is that individual required to make executive decisions for two separate jurisdictions but only in one: just as Members of the other place can also be Ministers in any of the devolved legislatures.
The quite reasonable and understandable amendments that the Government have so far made to the Bill have been consistently concerned with situations where there is no discretion in the selection of candidates for certain offices because of the use of d'Hondt. In all other cases the electorate, the legislature or the head of government has the discretion to select the most able individual concerned. The Government do not believe it is right to remove that discretion and I would ask the noble Lord to withdraw his amendment.
Lord Molyneaux of Killead: My Lords, I was travelling hopefully, but I am happy to beg leave to withdraw the amendment.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Brougham and Vaux): Amendment No. 8. I have to inform your Lordships that if this amendment is agreed to, I cannot call Amendment No. 9.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 8:
Page 2, line 10, leave out from beginning to first ("chairman") in line 14 and insert—
("() In section 29 of the Northern Ireland Act 1998 (statutory committees) after subsection (5) insert—
"(5A) A member of the Assembly who is—

(a) a Minister of the Government of Ireland, or

(b)")

The noble Lord said: My Lords this is a redrafting amendment and it achieves the same result as the current draft, but in a rather more straightforward manner. As currently drafted, the Bill defines who may not be the chairman or deputy chairman of a statutory committee of the Assembly. It precludes a Minister of the Government of Ireland or the chairman or deputy chairman of certain committees of the Irish legislature from holding such offices. It does so at present by requiring Standing Orders to be made by the Assembly to make such provision. On reflection, we consider it better to make this provision directly on the face of the Bill rather than by the more cumbersome method of including provision in the Bill to require such provision to be made by standing order. I beg to move.
On Question, amendment agreed to.
[Amendment Nos. 10 and 11 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 12:
Page 2, line 23, at end insert—
("() In section 40 of the Northern Ireland Act 1998 (which makes provision as to the Northern Ireland Assembly Commission), after subsection (3) insert—
"(3A) A member of the Assembly who is—

(a) a Minister of the Government of Ireland, or

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(b) chairman or deputy chairman of—

(i) a committee of the Dáil Éireann (House of Representatives of Ireland),

(ii) a committee of the Seanad Éireann (Senate of Ireland), or

(iii) a joint committee of the Oireachtas (National Parliament of Ireland),

may not be appointed as a member of the Commission." ").
The noble Lord said: My Lords, my noble and learned friend, Lord Falconer gave an undertaking to consider further the amendments proposed by the noble Lord, Lord Laird, in Committee to add membership of the Northern Ireland Assembly Commission to the list of disqualified offices at Clause 2.
This we have done, and on the basis that the present membership of the Commission is unelected and the commissioners hold positions of responsibility in the Assembly. Such membership is not open to Assembly Ministers, or indeed the chairman and deputy chairman of Assembly statutory committees. The Government agree that the bar should apply to certain office holders in the Irish Parliament who, if elected to the Assembly, might otherwise have been qualified. Consequently, this amendment ensures that no Assembly member who is also a Minister, a committee chairman or deputy chairman of the Irish Parliament would qualify for membership of the Assembly Commission.
Amendment No. 16 is simply a consequential amendment to the Title. We ask your Lordships' House to reject Amendment No. 17 on the basis that the amendments I have outlined will have exactly the desired effect as those moved by the noble Lords, Lord Laird and Lord Molyneaux. I beg to move.
Lord Molyneaux of Killead: My Lords, in the unavoidable absence of my noble friend Lord Laird, I express thanks to the Minister for taking on board some of the points we made. We understand that it is not always easy to concede entirely what we want. However, we are grateful to the noble and learned Lord for the way in which he has endeavoured to meet us on this point.
On Question, amendment agreed to.
In the Title:
[Amendment No. 13 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 14:
Line 4, leave out ("Ministerial office in Northern Ireland") and insert ("certain offices which may be held by members of the Northern Ireland Assembly").
The noble Lord said: My Lords, this amendment to the Title is consequential to the government amendments including membership of the Police Board and the Assembly Commission in the list of disqualified offices at Clause 2. I beg to move.
Lord Cope of Berkeley: My Lords, I rise only to say that there will be other amendments to the Title, consequential on the earlier decision of the House, which we shall pursue at Third Reading.
On Question, amendment agreed to.
[Amendment No. 15 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 16:
Line 10, at end insert ("or a member of the Northern Ireland Assembly Commission").
On Question, amendment agreed to.
[Amendment No. 17 not moved.]

Political Parties, Elections and Referendums Bill
4.52 p.m.
Report received.
Schedule 1 [The Electoral Commission]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 1:
Page 122, line 25, leave out sub-paragraph (1) and insert—
("(1) There shall be paid to an Electoral Commissioner such remuneration, and any such allowances or expenses, as may be specified in a resolution of the House of Commons.
(1A) If a resolution of the House of Commons so provides in the case of any person who is an Electoral Commissioner or former Electoral Commissioner—

(a) such amounts shall be paid towards the provision of superannuation benefits for or in respect of him as may be specified in the resolution:

(b) (in the case of a former Electoral Commissioner) such pension shall be paid to or in respect of him as may be so specified.").

The noble Lord said: My Lords, this amendment and those grouped with it make a number of essentially technical adjustments to the provisions of Schedule 1. The amendments are concerned with the remuneration of electoral commissioners, deputy electoral commissioners and assistant electoral commissioners. They provide, first, that pension benefits do not have to be paid in every case. Indeed, we envisage that only the full-time chairman of the commission will receive a pension. The second purpose of these amendments is to provide for the payment of expenses in addition, or as an alternative, to the payment of allowances. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 2 to 5:
Page 122, line 45, after ("paragraph") insert ("(other than by way of expenses)").
Page 122, line 46, at end insert—
("() Any amount payable under this paragraph by way of expenses shall be paid by the Commission.").
Page 123, line 19, leave out sub-paragraph (4) and insert—
("(3A) The Commission shall pay to a Deputy Electoral Commissioner such remuneration, and any such allowances or expenses, as may be provided for by or under the terms of his appointment.

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(4) If the terms of his appointment as Deputy Electoral Commissioner so provide, the Commission shall—

(a) pay towards the provision of superannuation benefits for or in respect of a Deputy Electoral Commissioner or former Deputy Electoral Commissioner such amounts as may be provided for by or under those terms;

(b) pay such pension to or in respect of a former Deputy Electoral Commissioner as may be so provided.").

Page 123, line 44, after ("allowances") insert ("or expenses").
On Question, amendments agreed to.
Lord Bach Lord Bach moved Amendment No. 6:
Page 124, line 13, leave out from ("Commission") to end of line 14 and insert ("by virtue of section 15(1) or by an order under section 17(1), 18(1) or 19(1).").
The noble Lord said: My Lords, this second group of amendments starts with government Amendment No. 6. I shall speak also to 20 other government amendments; namely, Amendments Nos. 8, 16, 31 to 34, 36, 37, 39 to 46, 268, 270, 273 and 275. I shall speak also to two opposition amendments: Amendment No. 35 tabled in the name of the noble Lord, Lord Mackay of Ardbrecknish, and Amendment No. 38 tabled in the name of the noble Lord, Lord Rennard.
The House will recall that in Committee a number of amendments were made to the Bill to clarify the relationship between the electoral commission and its four boundary committees. These further government amendments address the equally important relationship between the electoral commission and the Secretary of State, or his Scottish or Welsh counterparts.
Clauses 17, 18 and 19 provide for the transfer to the electoral commission of the functions of the Local Government Commission for England, and the Boundary Commissions for Scotland and Wales. If these functions were transferred without further ado, the electoral commission would be required to undertake reviews in accordance with directions made by the Secretary of State, or the equivalent, as is the current position.
We have made clear on a number of occasions that the electoral commission should be as independent of the government of the day as our constitutional arrangements will allow. The purpose of these amendments is therefore to set the parameters for the review of local government electoral and administrative boundaries and structural issues and then to leave it to the commission to get on with the job with minimum interference from Ministers.
Amendment No. 37 is the key provision. New subsection 1A of Clause 17 provides that an order made under subsection (1) may make provision for transferring to the commission any relevant function of the Secretary of State or for terminating or modifying any relevant function of the Secretary of State. We propose to exercise the order-making power in such a way as to confer full responsibility on the electoral commission for keeping under review electoral boundaries and, as appropriate, for giving effect to any changes to such boundaries. That will entail not only terminating the Secretary of State's powers of directions in respect of electoral reviews, but
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also transferring to the commission the Secretary of State's function of making statutory instruments to give effect to the conclusions of such reviews.
In the case of the review of local authority administrative boundaries or structure, we envisage that under the new arrangement the electoral commission would provide advice or undertake such reviews at the request of the Secretary of State. There will be no power to direct the commission to carry out these reviews. We would expect the Secretary of State and the commission to come to a proper understanding on the timing of any such advice or reviews. But, ultimately, it would be open to the commission to turn down a request if, for example, it had been given insufficient notice to build a particular review into its forthcoming work programme.
Once the commission had completed an administrative boundary or structural review of a particular local government area, it would submit its recommendations to the Secretary of State and it would continue to fall to him or her to give effect to recommendations. We believe that these matters are central to ensuring that there is effective local government with councils which are well placed to discharge their twin roles of community leadership on the one hand and delivery of local services on the other. As such, traditionally, and in our view properly, they have been matters in which the government of the day, whether the party opposite or ourselves, have a proper and legitimate interest. Orders changing the structure of local authorities should, as is now, be matters on which Parliament itself has the final say. It is for those reasons that we are not making provision in these amendments to change the current arrangements for the making of these orders.
That is not to say that the electoral commission, with its expertise in boundary matters, and with the force that its independent scrutiny can bring, should not have a role. Our intention is that no order relating to structure or boundaries should be able to be made by the Secretary of State, or indeed a draft of such an order laid before the House by the Secretary of State, unless he has sought and obtained the electoral commission's advice on the changes concerned.
Moreover, it is our intention to use our order-making powers provided for by these amendments to so modify the existing legislation that it would not be possible for the Secretary of State to propose to Parliament a structural change, or to make a boundary change, which was contrary to the advice he or she had received from the electoral commission.
In that way we seek to maintain the right balance: on the one hand, providing for an appropriate input into decision making on these matters by the Secretary of State and, on the other, ensuring equally that, as appropriate, the independent electoral commission, and indeed this House and another place, can make their input. Our intention therefore is that nothing can be done which runs counter to the advice of the commission or the will of Parliament.
We recognise that as a result of these changes the scope of the order-making power in Clause 17 is such as to warrant the affirmative resolution procedure. Amendment No. 268 makes the appropriate adjustment to Clause 153.
The amendments to Clauses 18 and 19 make broadly equivalent provision in respect of Scotland and Wales. I should emphasise that whether or not the functions of the Local Government Boundary Commissions for Scotland and for Wales are transferred to the electoral commission will be a matter for the Scottish Executive and the Welsh National Assembly respectively.
The amendments to Schedule 3 are in a similar vein. As Section 3 of the Parliamentary Constituencies Act 1986 stands, the Secretary of State may modify the recommendations of the Parliamentary Boundary Commissions before laying a draft order before Parliament giving effect to those recommendations. Again, it would not be in keeping with the independent status of the electoral commission if this power to modify its recommendations in respect of parliamentary constituencies were retained. Accordingly, the amendments to Schedule 3 have the effect of requiring the Secretary of State to lay before Parliament a draft order which gives effect to the committee's recommendations without modifications.
The other government amendments in this group are essentially consequential upon the ones I described. I hope that the noble Lord, Lord Rennard, will accept that our amendments achieve much the same end as his Amendment No. 38, although perhaps not going as far as he would like. Similarly, I hope that the noble Lord, Lord Mackay, may be prepared not to move his amendment in favour of our Amendment No. 34, which addresses the same drafting point left over from Committee. I beg to move.
5 p.m.
Lord Mackay of Ardbrecknish: My Lords, we are grateful to the noble Lord, Lord Bach, for that explanation, and perhaps for slowing down the tempo of the beginning of this Report stage which was just beginning to run away with at least government Ministers as to exactly where we were.
Perhaps I may dispose of my amendment first. It was tabled because we noticed that the Government had omitted to table an amendment in similar terms. That has now been corrected with the tabling of Amendment No. 34, and I am content. I hope that I receive a letter of thanks for reminding the Government of the need to table this amendment.
I want to make just one point, which is not really one for the noble Lord, Lord Bach, but for others to read. It is that I hope that the Scottish Executive and the Welsh Assembly will transfer the same powers to the electoral commission. I fully understand why it is up to them to make those decisions for themselves, but I hope that the powers will be transferred. That would be a sensible way to have a more uniform position on looking at electoral boundaries throughout the United Kingdom.
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It is also important because so often decisions about local government boundaries—I am not talking about the boundaries of local authorities, but about the electoral boundaries within local authorities—are followed by the Parliamentary Boundary Commission, sometimes mistakenly. That can lead to considerable numerical imbalances between one constituency and another, which I feel is wrong.
It is important therefore for the electoral commission to have overall responsibility for parliamentary boundaries. It is important also for it to have responsibility for local government boundaries. It will have that in England. I hope that my friends in Scotland and Wales will read what I say and follow suit.
Lord Rennard: My Lords, I welcome the amendments in this group which were tabled by the Government and which concern the relative powers of the electoral commission and the Secretary of State in relation to local government boundary reviews. That relationship is, of course, subject to Amendment No. 38 in my name and that of my noble friend Lord McNally.
As originally drafted, the Bill was inconsistent in giving the electoral commission powers over parliamentary boundaries, but leaving the Secretary of State with responsibility for local government and ward boundaries. It is generally agreed that the electoral commission is intended to have substantial independence. Its role will be supervised not by the Government, but by the proposed Speaker's committee. It would therefore have been somewhat incongruous for the committee to be subject to the direction of the Secretary of State with regard to its local government electoral functions.
In the previous Parliament we witnessed manipulation by the Conservative government of local government boundaries in Scotland in a vain attempt to secure for the Conservative Party control of at least one Scottish council and perhaps the parliamentary seat if parliamentary boundaries were then to be redrawn along the lines of local government boundaries.
Lord Mackay of Ardbrecknish: My Lords, perhaps the noble Lord will explain exactly what he means by his last few sentences. Can he explain where, when and how, if he does not mind?
Lord Rennard: My Lords, I am happy to do so. There was a great deal of controversy about the local government boundaries in Scotland prior to the previous general election campaign and the creation of the new unitary councils in Scotland, and the one based largely around the Eastwood constituency was clearly being created by the then Conservative government to try and create one council which the Conservative Party might be able to hold. Indeed, it failed to do so in the Scottish councils elections, despite the fact that the boundaries had been arranged in such a way as to favour the Conservative Party.

561
My point is simply that the rearrangement of local ward boundaries should not be in the hands of any specific Secretary of State, but in the hands of the electoral commission.
Lord Mackay of Ardbrecknish: My Lords, I notice that the noble Lord is introducing a party-political slant to this debate. But will he accept that that particular local authority was already a district council authority and therefore the provision was not as illogical or as politically motivated as the noble Lord seems to think?
Lord Rennard: My Lords, I believe that it is right that at the time there was a suggestion that the Conservative government were interfering with the boundaries in a way that would be improper and it is only right that in future the electoral commission should deal with those issues rather than a government of any party. It would not be right if the commission did not have such powers and it continued to be responsible to the Secretary of State for these matters.
At present the Secretary of State has considerable powers over the local government commission. At present he has the power to direct the commission to undertake reviews and to have regard to guidance he or she may issue, and has the ultimate power to approve, reject or amend the commission's proposals without reference to Parliament. The new commission, established with a wide remit over electoral matters, should not have its work on local government reviews subject to the direction of, and approval by, the Secretary of State.
The Secretary of State does not have such powers in relation to the Parliamentary Boundary Commissions. So if modifications to the Parliamentary Boundary Commission proposals are proposed by the Secretary of State, for which there is no known precedent, he or she must not only explain the reasons for them, but also the draft order must be debated and approved by both Houses of Parliament. The same principle should now apply for local government.
I thank the Government for thinking again about this issue and changing the commission's remit in this area. I confirm that I shall not move Amendment No. 38.
Lord Bach: My Lords, I am grateful to noble Lords who have spoken. As to the issue between them, the Government could not possibly comment—or chooses not to on this occasion. Indeed, it is something of a relief for the Government not to have to comment on such an issue.
I am grateful to both noble Lords, with their experience of local government and elections generally. I am sure that the noble Lord, Lord Mackay of Ardbrecknish, will be heard and read in Scotland; and we are grateful for the support of the noble Lord, Lord Rennard.
On Question, amendment agreed to.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 7:
Page 124, line 33, leave out ("3(4)(b)") and insert ("3(4)(a)").
The noble Lord said: My Lords, we discussed in Committee and agreed that the electoral commission should be and should be seen to be independent of political parties. The whole House will agree with that proposition. That is why in Committee the Government inserted provisions into the Bill which disqualify a person from being appointed an electoral commissioner if he is a member of a political party, or if he is, or has recently been, an officer of, or a large donor to, a political party.
Schedule 1 extends those disqualifications to the chief executive of the commission, who will be the senior paid public official in charge of elections in the whole of the United Kingdom, and to members of the commission staff. The post of chief executive will be significant and will carry significant powers and responsibilities. It is right that whoever holds those posts should be politically neutral, as should the staff of the commission.
However, that extension of the disqualifications to the chief executive and the staff is incomplete. It does not include first and arguably the most important element which will apply to the commissioners; namely, current membership of a political party. In this Bill, we are placing restrictions on the electoral commissioners as to their membership of political parties but are not applying the same rule to members of the commission's paid service. That seems strange. My amendment would apply to the chief executive and the staff of the commission the full range of restrictions which will apply to the commissioners.
When I raised the issue on 11th May (col. 1763), the Minister said:
"My understanding is that staff at all levels with: n the organisation, including the chief executive, may be members of political parties".
He went on to say:
"I shall endeavour to take up the point made by the noble Lord, Lord Mackay, with regard to the chief executive having a party affiliation. I take note of the noble Lord's concern. However, I believe that in the real world many chief executives or leading civil servants may have undeclared party memberships. Who are we to say that they should cease to hold party membership?".—[Official Report, 11/5/00; cols. 1767–70.]
I take the noble Lord's point, but I do not believe that there are direct analogies with other areas of the public service and I want to explain why.
To what extent will the staff of the commission be barred from act of involvement in politics? That seems to me to be the main question. It would appear that under the Bill the staff will be able to be members of a political party. Will that allow them to engage in campaign activity or are they to be barred from doing that? It would be preferable for them to be—and, crucially, seen to be—above involvement in party politics.
I hope that the Minister can tell us that during the past six months the Government have given detailed consideration to these issues, as I was promised they would. There is little precedent for the powers that the

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commission will have: powers which on a day-to-day basis will be exercised on the ground by the chief executive and by other members of the commission staff. They will have the power to go through the accounting records of political parties and to question members of their staff. They will have early sight of reports of donations because they will go to them before being made public. Their opinion about those and other issues will influence the way in which commission members are briefed.
I do not believe that it would be perceived as fair by the political parties if they discover that they are giving detailed confidential and privileged information about their finances to people who are members of rival parties and who therefore may be seen to be possibly biased, even if they are not biased in practice.
There is a compelling reason why the analogy drawn by the Minister on 11th May is invalid. In no other area of the public sector service are such sweeping powers of investigation into and regulation of political parties given to officials who may be members of rival parties. That is what the Bill does. The electoral commission will regulate political parties. It will not be doing other work; it will be directly regulating political parties.
I am sure that Ministers agree that this is uncharted territory. It seems to me crucial that the officials of the commission, as well as the commission itself, are seen to be above party politics. I believe that if they are not seen to be above party politics, confidence in the working of the commission will be reduced. The situation which could be created by the Bill as drafted would be very difficult. I hope that the Minister, from his thoughts since the matter was first raised last May, can give me reassurances. However, I am concerned that without the amendment standing in my name, and even with the Minister's reassurance, it will be a distinct possibility that a political party could be giving confidential information to an official of the commission who is a member of another political party. I do not believe that that is a satisfactory position and I commend my amendment to the Government and the House. I beg to move.
5.15 p.m.
Lord Sanderson of Bowden: My Lords, I had not intended to speak in the debate but I want to support my noble friend most strongly. The most important point is that if the electoral commission is to have respect, it must be, and be seen to be, above reproach. I should have thought that my noble friend's amendment does just that. It will not be popular with the public if, as has happened in the United States, there are seen to be political affiliations which can have a bearing on the result of an election.
Lord McNally: My Lords, the noble Lord, Lord Sanderson, is probably right in saying that the amendment has greater strength since events across the Atlantic where election officers are quickly identified as registered Democrats or Republicans and
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doubt is cast on their impartiality. The argument against the chief executive being a registered party member has considerable merit.
My only concern is that in recent years we have tried to encourage the participation of public officials in political parties and tried to remove some of the too restrictive rules in various areas of the public service. I wonder whether the noble Lord's amendment, which would apply to staff at all levels, takes matters too far the other way.
Lord Bach: My Lords, as the noble Lord, Lord Mackay, explained, the amendment is concerned with whether or not a member of the electoral commission staff can be a member of a political party. He has obviously concluded that the staff as well as the commissioners should be barred from belonging to a registered party. After consideration, we believe that that would be going too far and would be an unnecessary and unjustifiable restriction.
One of the reasons for that belief was given by the noble Lord in the Committee debate to which he referred. The noble Lord advised us to check,
"whether saying that they cannot be members of a political party actually breaches the convention".—[Official Report, 11.5.00; col, 1764.]
We had already considered that point and reached the conclusion that there was no necessity to prohibit party membership as regards the staff such as to justify the undoubted restriction that we would be placing on their convention rights.
The noble Lord draws a distinction between civil servants, however senior or sensitive their posts, who can be members of a political party. That is true about senior local government officials, too. We do not believe that there is a sufficient distinction between the role of, say, a junior member of staff at the electoral commission and a senior civil servant such that the first cannot be a member of a political party but the second can. We do not believe that there is sufficient justification to treat the staff of the commission differently.
I remind the House that local authorities, and no doubt also the Civil Service, have already adopted rules which mean that those who are members of a political party cannot play an active role in its activities. That is also true of the electoral staff of local authorities who are not barred from membership of political parties. Their position in some ways will be parallel to that of the staff of the electoral commission when they take up their posts.
We do not believe there is any doubt that the commission will adopt rules similar to those introduced for civil servants to restrict the political activities of its staff, and for their limited part in this the Government will certainly advise it to do so. A balance must be struck here. Many of the points raised

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by the noble Lord are valid, but I believe that on balance the line comes down in favour of allowing staff to be members of political parties, and I hope that the noble Lord will withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, if I heard the Minister correctly—I found it difficult to follow his argument—he confirmed that if the staff of the commission were banned from political membership that would not be a breach of their convention rights.
Lord Bach: My Lords, perhaps I was not as clear as I should have been. We believe that it may be a breach of their rights and that almost certainly the matter will be tested in the courts. We do not go as far as to say that it would definitely be a breach: that is not the advice that we have received.
Lord Mackay of Ardbrecknish: My Lords, if someone who is a member of a political party wants to join the staff of the commission but is not allowed to do so because my amendment is accepted, and he takes the commission, or perhaps the Government, to court because of an infringement of his convention rights, I wonder why such a person is so keen to be a member of staff of the commission.
The Minister tried hard to deal with my points, but he did not answer the real question. This commission is not like any other part of the Civil Service. The commission will send out its staff to obtain information from political parties. It could easily happen that a member of the commission's staff who was also a member of the Labour Party visited the headquarters of the Conservative Party at Smith Square in order to obtain information which might or might not be confidential.
Lord Bassam of Brighton: My Lords, does the noble Lord accept that in some ways members of staff employed in an electoral registration office who were also members of political parties might obtain quite sensitive political information about other political parties? Sometimes they are in a sensitive position but no one has questioned their integrity.
Lord Mackay of Ardbrecknish: My Lords, I do not agree with the Minister. I cannot think of anything that an electoral registration officer wants to discover from a political party that that party may regard as confidential in the sense of its operations, funding or whatever. I do not believe that there is any analogy. I am very unhappy about this matter, especially as I appear to have discovered in passing that the chief executive could also be a member of a political party. I believe that that is beyond the pale. The Government have not thought this through sufficiently carefully. They agree that the members of the commission should not be members of political parties but suddenly stop and do not take the next logical stop. This matter is so important that I must ask the opinion of the House.
5.25 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 108; Not-Contents, 153.

Division No. 2

CONTENTS

Alton of Liverpool, L.

Liverpool, E.

Anelay of St Johns, B.

Lucas, L.

Astor, V.

Lyell, L.

Astor of Hever, L.

McColl of Dulwich, L.

Attlee, E.

Mackay of Ardbrecknish, L.

Blatch, B.

Mancroft, L.

Boardman, L.

Marsh, L.

Brabazon of Tara, L.

Molyneaux of Killead, L.

Brougham and Vaux, L.

Monro of Langholm, L.

Burnham, L. [Teller]

Monson, L.

Butterworth, L.

Montrose, D.

Campbell of Alloway, L.

Moynihan, L.

Campbell of Croy, L.

Murton of Lindisfarne, L.

Carnegy of Lour, B.

Naseby, L.

Chadlington, L.

Noakes, B.

Coe, L.

Northbrook, L.

Colwyn, L.

Northesk, E.

Cope of Berkeley, L.

Norton of Louth, L.

Courtown, E.

O'Cathain, B.

Cranborne, V.

Onslow, E.

Crickhowell, L.

Oppenheim-Barnes, B.

Cumberlege, B.

Palmer, L.

Dean of Harptree, L.

Park of Monmouth, B.

Deedes, L.

Pearson of Rannoch, L.

Dixon-Smith, L.

Perry of Southwark, B.

Dundee, E.

Pilkington of Oxenford, L.

Eccles of Moulton, B.

Prentice, L.

Eden of Winton, L.

Rawlings, B.

Elles, B.

Rees, L.

Elliott of Morpeth, L.

Rees-Mogg, L.

Elton, L.

Renton, L.

Fookes, B.

Roberts of Conwy, L.

Freeman, L.

Rotherwick, L.

Gardner of Parkes, B.

Ryder of Wensum, L.

Geddes, L.

Sanderson of Bowden, L.

Glentoran, L.

Seccombe, B.

Goschen, V.

Selborne, E.

Gray of Contin, L.

Sharples, B.

Greenway, L.

Shaw of Northstead, L.

Hanson, L.

Shrewsbury, E.

Henley, L. [Teller]

Slim, V.

Higgins, L.

Soulsby of Swaffham Prior, L.

Hodgson of Astley Abbotts, L.

Stewartby, L.

Hooper, B.

Strange, B.

Howe, E.

Strathclyde, L.

Howell of Guildford, L.

Tebbit, L.

Hunt of Wirral, L.

Thomas of Gwydir, L.

Hurd of Westwell, L.

Trefgarne, L.

Inglewood, L.

Vivian, L.

Jopling, L.

Waddington, L.

Knight of Collingtree, B.

Wakeham, L.

Laird, L.

Weatherill, L.

Lamont of Lerwick, L.

Willoughby de Broke, L.

Lawson of Blaby, L.

Young, B.

NOT-CONTENTS

Acton, L.

Bach, L.

Addington, L.

Barnett, L.

Amos, B.

Bassam of Brighton, L.

Andrews, B.

Beaumont of Whitley, L

Archer of Sandwell, L.

Berkeley, L.

Ashley of Stoke, L.

Bernstein of Craigweil, L.

Ashton of Upholland, B.

Billingham, B.

567

Blackstone, B.

Lipsey, L.

Blease, L.

Lockwood, B.

Borrie, L.

Lofthouse of Pontefract, L.

Bradshaw, L.

Longford, E.

Bragg, L.

Macdonald of Tradeston, L.

Brennan, L.

McIntosh of Haringey, L. [Teller]

Brett, L.

Brooke of Alverthorpe, L.

McIntosh of Hudnall, B.

Brookman, L.

MacKenzie of Culkein, L.

Brooks of Tremorfa, L.

Mackenzie of Framwellgate, L

Burlison, L.

McNally, L,

Carter, L. [Teller]

Maddock, B.

Chandos, V.

Mallalieu, B.

Christopher, L.

Mason of Barnsley, L.

Clarke of Hampstead, L.

Massey of Darwen, B.

Cledwyn of Penrhos, L.

Merlyn-Rees, L.

Clement-Jones, L.

Mitchell, L.

Clinton-Davis, L.

Morris of Manchester, L.

Cocks of Hartcliffe, L.

Newby, L.

Cohen of Pimlico, B.

Northover, B.

Crawley, B.

Paul, L.

David, B.

Peston, L.

Davies of Coity, L.

Plant of Highfield, L.

Davies of Oldham, L.

Prys-Davies, L.

Desai, L.

Puttnam, L.

Dholakia, L.

Ramsay of Cartvale, B.

Dixon, L.

Randall of St. Budeaux, L.

Dubs, L.

Razzall, L.

Eatwell, L.

Rea, L.

Elder, L.

Rennard, L.

Evans of Temple Guiting, L.

Renwick of Clifton, L.

Falconer of Thoroton, L.

Richard, L.

Farrington of Ribbleton, B.

Rodgers of Quarry Bank, L.

Faulkner of Worcester, L.

Roper, L.

Gale, B.

Russell, E.

Gibson of Market Rasen, B.

Sainsbury of Turville, L.

Gilbert, L.

Sawyer, L.

Goodhart, L.

Scotland of Asthal.B.

Goudie, B.

Scott of Needham Market, B.

Gould of Potternewton, B.

Serota, B.

Gregson, L.

Shepherd, L.

Grenfell, L.

Shore of Stepney, L.

Hamwee, B.

Shutt of Greetland, L.

Hardy of Wath, L.

Simon, V.

Harris of Greenwich, L.

Smith of Gilmorehill, B.

Harris of Haringey, L.

Stoddart of Swindon, L.

Harris of Richmond, B.

Stone of Blackheath, L.

Harrison, L.

Strabolgi, L.

Haskel, L.

Symons of Vernham Dean, B.

Hayman, B.

Taverne, L.

Hilton of Eggardon, B.

Taylor of Blackburn, L.

Hogg of Cumbernauld, L.

Tomlinson, L.

Hollis of Heigham, B.

Tordoff, L.

Howells of St. Davids, B.

Turnberg, L.

Howie of Troon, L.

Turner of Camden, B.

Hoyle, L.

Uddin, B.

Hughes of Woodside, L.

Varley, L.

Hunt of Kings Heath, L.

Walker of Doncaster, L.

Irvine of Lairg, L. (Lord Chancellor)

Wallace of Saltaire, L.

Walmsley, B.

Islwyn, L.

Warner, L.

Jacobs, L.

Warwick of Undercliffe, B.

Janner of Braunstone, L.

Wedderburn of Charlton, L.

Jay of Paddington, B. (Lord Privy Seal)

Whitaker, B.

Whitty, L.

Jenkins of Putney, L.

Wilkins, B.

Judd, L.

Williams of Crosby, B.

King of West Bromwich, L.

Williams of Elvel, L.

Kirkhill, L.

Williams of Mostyn, L.

Layard, L.

Williamson of Horton, L.

Lea of Crondall, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.35 p.m.
Lord Bach Lord Bach moved Amendment No. 8:
Page 126, line 13, after ("by") insert ("the Secretary of State under section 17(6) or").
On Question, amendment agreed to.
Clause 3 [Appointment of Electoral Commissioners and Commission chairman]:
Viscount Astor Viscount Astor moved Amendment No. 9:
Page 3, line 4, after ("officer") insert ("or employee").
The noble Viscount said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 10, 11 and 12. Amendments Nos. 9 and 10 address what appears to be an inconsistency in drafting between Clause 3 and Schedule 1. I hope that the Minister will be able to tell the House that it is an unintended inconsistency rather than anything more sinister.
Paragraphs (a) and (d) of Clause 3(4) provide that a person cannot be appointed an electoral commissioner if he is or has been at any time within the preceding 10 years an officer of a registered party or accounting unit. However, paragraph 3 (3)(b) of Schedule 1 states that an electoral commissioner shall cease to hold office if,
"he takes us any office or employment in or with … a registered party or any accounting unit".
The distinction is made in the schedule between the terms "office" and "employment" but it is not made in Clause 3.
There is certainly a distinction between being an officer of a party, which presumably means someone who holds a quite senior post—perhaps one mentioned in the party's constitution and indeed unpaid—and being an employee. If the noble Baroness, Lady Gould, were in her place, I might say that in the past she had been an officer of the Labour Party whereas Mr Alastair Campbell and Mr Charlie Whelan could have been described as "employees" when the party was in opposition. Under my reading of the Bill, the noble Baroness would therefore be disqualified from appointment to the commission, but Mr Campbell and Mr Whelan, despite their highly political roles, would not be. Are we to conclude that an electoral commissioner may be forced to resign if he takes up employment with a party, but it is all right for him to be appointed a commissioner if he is a party employee, even one with an overtly political role, at the time of his appointment or if he has been employed by a party in the recent past?
I hope that this is just poor drafting and that that is not the Government's intent. I hope that my amendments will be accepted as they seek to make the Bill clearer and more acceptable.
There are other inconsistencies in the Bill which I trust the Minister will address. In the schedule, the list of things that will terminate a commissioner's appointment includes his taking up office or employment with a recognised third party or a permitted participant in a referendum. However, in Clause 3, the disqualification from appointment in the first place applies only to office held in registered

569
parties and their accounting units. Are we to read into that that a commissioner can hold or can have held office with a third party or a referendum participant on his appointment, or is that what I would describe as inconsistent drafting? What about officers of members' associations? Should not they be included in both definitions as well?
Again, the schedule provides that a commissioner's appointment ends if he becomes a candidate at an election. However, there is nothing in Clause 3 to prevent his appointment if he has been a candidate in the recent past; only if he was actually elected would he fall within the provisions of subsections (4)(c) and (4)(d). I should be grateful for clarification from the Minister as to whether he considers that the drafting is correct or whether he considers that there is a loophole.
Amendment No. 11 would extend the disqualification which applies to past political activity to membership of a political party, as well as to that of holding office or donating. We suggest that someone who is a member of a political party should not be appointed, unlike the other criteria for disqualification which do not extend all that far back into the past. The current drafting suggests that it is not necessary for someone to hold office in a party to have a significant political profile, either locally or nationally. For example, someone might be the head of a members' organisation such as the Fabian Society or the Tory Reform Group; that person would not in fact hold office within the party itself. Perhaps the Minister will consider the matter a little further. This amendment is of a probing nature. I wish to understand the Government's thinking here and I seek reassurance that they have drafted this part of the Bill correctly.
I shall turn now to Amendment No. 12. This would provide that no person could hold office as an electoral commissioner for more than 15 years. I accept that that is an arbitrary figure and that commissioners could he appointed for up to 10 years in the first instance in order to achieve the security of tenure intended by the Neill committee. My amendment seeks to establish how long the Government intend that a commissioner should serve and how often he could be reappointed. As the Bill stands, a person could be reappointed for three full terms and thus would serve for 30 years. I am sure that the noble Lord would agree that that is rather a long time for anyone to undertake one job. Obviously we need commissioners who have gained experience, but it is equally important to make available to the commission opportunities to introduce fresh talent and expertise at reasonable intervals.
It is important, when we consider the Bill as a whole, to ensure that the role of the commissioners is properly fulfilled. To that end, Amendment No. 12 seeks to clarify the Government's thinking in this important area. I beg to move.
Lord Hodgson of Astley Abbotts: My Lords, I should like to support my noble friend in these amendments. In particular, I wish to add my support to Amendment No. 12, which deals with the length of service of
570
electoral commissioners. The Bill concerns freshness and transparency. To that end, we should like to receive a clear statement from the Government as regards how long they anticipate that electoral commissioners should hold office.
Given that the Government have refused to accept the cogent arguments put forward by my noble friend on the previous amendment, on which we have just divided, we wish to be able to distinguish clearly the lines drawn between those operating within the commission and outside the commission; namely, what they can and cannot do. I look forward to the Minister's response.
5.45 p.m.
Lord Bach: My Lords, in Committee we discussed the question of whether people should be debarred from being commissioners or members of the commission's staff by reason of political affiliations. The restrictions now contained in subsection (4) of Clause 3, which has been referred to by the noble Viscount, were added to the Bill at our instigation at that stage. Some reservations were expressed about what we are proposing here. However, those reservations seem now to have disappeared.
I shall work through the amendments and explain to noble Lords the Government's thinking on these matters. First, I should say that there is no great gulf between the Government and the Opposition Front Bench as regards the issues raised by these interesting amendments. I shall be suggesting that the majority of the amendments—or perhaps half of them—are unnecessary or mildly undesirable. However, I note that those amendments are of a probing nature in order to establish the Government's point of view on the issues raised. Indeed, it may be that, once he has heard my reply, which will not be overly long, the noble Viscount might not feel the need to press them further if he achieves most of what he seeks here.
Amendment No. 9 would prevent a person from being a commissioner at the same time as being an employee, and not merely an officer, of a registered party. Here, we can change our tune. If I wanted to advise the House to reject the amendment, I would have to explain the difference between an officer and an employee and why one of these things was compatible with being a commissioner but not the other. Both those tasks are well beyond me and therefore I recommend to the House that it should agree with the noble Viscount's amendment.
Amendment No. 10 would make it impossible for a person to be appointed as a commissioner if he or she had been an employee and not merely an officer of a party within the previous 10 years. We have thought a little longer about this amendment because it could be argued that some kind of employment, perhaps as a manager in information technology, for example, would not necessarily connote any real association with the party's political position. However, bearing in mind the generous nature of the Government Front Bench this afternoon, I am not minded to oppose this amendment either.

571
However, as regards Amendment No. 11, I am afraid that the honeymoon is over and I must revert to type; namely, to the posture of the Government defending the Bill—probably rightly so here. The amendment would make it impossible for a person to be appointed as a commissioner if he or she had been a member of a party within the previous five years. We think that that goes too far. We accept that, as the Bill already requires, a commissioner should have to resign from any membership of a party on appointment. We think that that requirement is quite justifiable, for commissioners as opposed to staff members, so as to avoid the possibility of any enduring conflict of interest. But we do not think that previous membership, unaccompanied by the holding of any political office, need be an absolute bar. We think that it would require a great deal of justification to impose a stiffer test in this regard for membership of the commission than, for example, for appointment as a High Court judge, where the same rule would not apply. For that reason, I would ask the noble Viscount not to press his amendment.
I shall turn finally to Amendment No. 12. This would impose an overall limit of 15 years on the period for which a person could serve as a commissioner. I shall say again that there is no great gulf between our attitudes on this point. The Government agree that very long service as an electoral commissioner would be undesirable in most cases. We shall ourselves be following that principle when we put forward those selected for initial appointment. Indeed, if we were to set a statutory maximum—although I should state that we do not support setting such a limit—it might be open to question whether 15 years was not in any event on the long side, as the noble Viscount suggested when he spoke to the amendment. In our view that would certainly send the wrong signal if, as sometimes happens, the maximum came to be regarded as the norm.
On the other hand, there may be cases in which someone has become a lynchpin of the commission and it was agreed all round that it would be of benefit for them to serve longer. We feel that this is a matter best left to the good sense of the government of the day. However, that would apply not only to the government, but to the judgment of another place. I should remind noble Lords that another place has to agree on a reappointment to the commission. Thus, having explained briefly to noble Lords our thinking on this issue, I am sure that it is clear that we are not all that far apart here. However, we do not feel that it is necessary for the maximum period to be set down in law. Given that, I would ask the noble Viscount not to press his amendment.
Viscount Astor: My Lords, perhaps I may start with Amendments Nos. 9 and 10. I am grateful to the Minister for accepting these two amendments. I am glad that I have been able to aid him in the drafting of a Bill and I am delighted with the Government's response.
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I shall turn first to Amendment No. 12. I thought that the Minister's response here was extremely helpful and gave good guidance to noble Lords. I shall not move the amendment because I am happy to accept what he said; it has been most helpful in explaining the Government's position.
As regards Amendment No. 11, I accept that in such instances it is difficult to impose an absolute bar on membership of a political party. I listened carefully to what the Minister said. Perhaps he can help the House on this matter. Often in these cases, membership of a political party may mean only that one gets a card through the post stating, "You are a member of this political party"; on the other hand, it may mean something more. Will there be any guidance in relation to this? Will the Government offer a view of where the cut-off will be? It will be difficult because every instance may be different, but will a person elected to the commission be able to go to someone and say, "This is what I have done in the past; what do you think? Does this go beyond ordinary membership of a party and constitute an active political role?"? It would be useful if the Minister could briefly comment on that issue.
Lord Bach: My Lords, I cannot comment because I have not received any advice on the issue, but if someone had been a member of a particular party and was about to be appointed a commissioner, I think it unlikely that there would not be some questions about what his role had been, when he had resigned from the party, and basically how active he had been. I should have thought that was common sense.
Viscount Astor: My Lords, that is an extremely helpful answer. I am grateful to the Minister.
On Question, amendment agreed to.
Viscount Astor Viscount Astor moved Amendment No. 10:
Page 3, line 9, after ("officer") insert ("or employee").
On Question, amendment agreed to.
[Amendments Nos. 11 and 12 not moved.]
Lord Bach Lord Bach moved Amendment No. 13:
Page 3, line 25, leave out ("(3)(b)") and insert ("(4)(b)").
The noble Lord said: My Lords, in moving Amendment No. 13, I shall speak also very briefly to Amendments Nos. 124, 135, 136, 144, 161, 162, 190, 191, 207, 208 and 213, which are all government amendments.
These amendments, by and large, simply correct a number of erroneous cross-references which appeared in the changes made to the Bill in Committee. The amendment to Clause 67 in Amendment No. 124 is consequential upon the insertion in Committee of paragraph 3 of Schedule 6, which relates to the information about the identity of a donor which parties must supply in weekly donation reports. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 14:
After Clause 3, insert the following new clause—

Political Parties, Elections and Referendums Bill

  PARLIAMENTARY PARTIES PANEL
  (" .—(1) There shall be a panel (to be known as "the Parliamentary Parties Panel") which consists of representatives of qualifying parties appointed in accordance with this section.
  (2) The function of the panel shall be to submit representations or information to the Commission about such matters affecting political parties as the panel think fit.
  (3) Where the panel submit any such representations or information to the Commission, the Commission shall—

  (a) consider the representations or information, and

  (b) decide whether, and (if so) to what extent, they should act on the representations or information.

  (4) Each qualifying party shall be entitled to be represented on the panel by a person appointed to the panel by the treasurer of the party.
  (5) Subject to subsection (6), a person so appointed shall be a member of the panel for such period as the treasurer of the party may determine when making the appointment.
  (6) A person so appointed shall cease to be a member of the panel if at any time—

  (a) his appointment is terminated for any reason by the treasurer of the party, or

  (b) the party ceases to be a qualifying party.

  (7) The panel may determine their own procedure.
  (8) The validity of any proceedings of the panel shall not be affected by any failure by the treasurer of a qualifying party to make any appointment in accordance with this section.
  (9) In this section "qualifying party" means a registered party—

  (a) to which two or more Members of the House of Commons for the time being belong; or

  (b) to which two or more such Members belonged immediately after the most recent parliamentary general election.").

  The noble Lord said: My Lords, Amendment No. 14 is an important amendment, but one which I am confident will be supported across the House.
  I start with why the new clause is being brought forward. On Second Reading, I signalled the Government's intention to bring forward amendments to ensure that the membership of the electoral commission would consist of people who were not associated with political parties. Those amendments, which were very similar to ones moved by the Official Opposition in another place, were duly brought forward in Committee and were passed into the Bill. Essentially, they constitute what is now subsection (4) of Clause 3.
  I might add that, with the passage of time, our conviction that it ought not to be possible to associate members of the electoral commission with any political party has grown stronger rather than weaker. Events on the other side of the Atlantic have reinforced our conviction. At every twist and turn we have seen someone with a party tag to their name and it has not done a great honour to the electoral process as a consequence. We should not go any further in jumping on the grave of an electoral system; nevertheless the point is worth making.
  Having said that, it was clear both at Second Reading and in Committee that noble Lords were not without some qualms. The concern expressed was that the more impeccable the credentials of the electoral commissioners from the point of view of political impartiality, the less likely they were to have hands-on experience of the political process from the point of view of the parties. That point was echoed on all sides of the House.
  The proposed new clause is designed to meet this point, and to meet it head on. It provides a forum and a legitimate opportunity for the political parties collectively to put their points to the electoral commission and to have them considered. The panel will not, of course, be in the nature of a supervisory body; nor is it considered wise to have it as a formal advisory body in the sense that the commission cannot proceed without consulting the panel and, by implication, clearing its proposals through it. The commission will, of course, wish to consult on general matters, but it will obviously cast its net a good deal wider than the handful of political parties represented on the panel. If we were setting up a formal advisory panel, its membership would have to be expanded rather more widely.
  There would also be a risk of appearing to set up almost an alternative electoral commission. It is for this reason that I cannot accept Amendment No. 14A, which has been brought forward by the noble Lord, Lord Norton, as an amendment to the government amendment. The panel is designed simply to allow the parties to discuss matters collectively and to engage with the commission if they wish to do so. No doubt it will take notice of the commission's work programme and decide what input it wishes to make. We have not sought to circumscribe in any way the matters on which the panel can engage with the commission. The commission will have to give due consideration to any points put to it but will not, of course, be bound by them.
  We have not thought it necessary to provide more than a minimal structure for the commission. It will be open to any party with two Members in the House of Commons to nominate a member of the panel. To extend that opportunity to every registered party would make the panel unmanageable. Procedure is to be entirely in the panel's own hands. In the first instance, it would no doubt be helpful if one of the major parties were to get the ball rolling.
  Nor do we think it necessary to provide any logistical or financial support. This is not a new quango. Representatives of the parties get together at present on matters of common concern. The new clause simply provides a new forum for them to do so, and gives a legitimacy to any interaction which they have with the electoral commission.
  I believe that the new clause responds appropriately to concerns expressed at earlier stages of the Bill and I commend it to the House.
  I must also deal with the amendment to the amendment, tabled by the noble Lord, Lord Mackay and the noble Viscount, Lord Astor. Its effect would

  575
  be to exclude from the club, if I may put it that way, parties whose members have not taken the Oath. We have done that in other contexts in other parts of the Bill but we have not included it here. In case anyone should think otherwise, that is not a mere oversight on the Government's part but a deliberate decision. The panel is not primarily a parliamentary body. The requirement to have two Members in the House is primarily a means of limiting the membership of the panel to manageable proportions compared with opening it up to every registered party. So there is no inherent reason why any party which has had Members elected to another place should be excluded. I beg to move.
  Lord Norton of Louth Lord Norton of Louth moved, as an amendment to Amendment No. 14, Amendment No. 14A:
  Line 12, at end of subsection (3) insert—
  ("() The Commission may seek the advice of the panel on matters affecting political parties as the Commission thinks fit.").
  The noble Lord said: My Lords, I welcome the fact that the Government have tabled Amendment No. 14. As the Minister said, it has been brought forward to meet the point made in Committee on 11th May that members of the commission will have no grounding—certainly no recent grounding—in party political activity. I and several other noble Lords made that point and I welcome the amendment brought forward by the Government.
  My amendment to the Minister's amendment is, I think, self-explanatory. Under the Minister's amendment, the parliamentary parties panel will be empowered to submit representations or information to the commission about matters affecting political parties as the panel thinks fit. My amendment confers upon the commission the power to seek the advice of the panel on matters affecting political parties.
  One can see the case for members of the panel wishing to make representations to the commission, but the commission itself may wish to consult on proposals that it is considering. Although the commission is empowered to make reports and to provide advice to different bodies, it is not—at least, not explicitly—empowered to consult other bodies. Contrary to what the Minister said, I believe that it is appropriate to confer such a power, certainly in this case. There may be occasions when members of the commission are considering a proposal on which they would welcome some input from those with knowledge of parties and of fighting elections. The important point is that it may be best for that input to come at the formative stage.
  As I say, my amendment is self-explanatory. The case for it is fairly obvious. I do not recognise the Minister's objection as a compelling one. I do not believe that the commission should be constrained in this way or that it would be in any way tainted by being given the power that I suggest. Such a power is necessary to allow the commission, should it so choose, to consult the panel that is being set up. This is a fairly straightforward and sensible amendment. I beg to move.
  6 p.m.
  Lord Mackay of Ardbrecknish: My Lords, I concur completely with my noble friend. I found the Minister's explanation of why the Government do not like the amendment distinctly unconvincing. Subsection (2) of the Government's new clause states:
  "The function of the panel shall be to submit representations or information to the Commission about such matters affecting political parties as the panel think fit".
  There is nothing wrong with the commission saying to itself, "I wonder what the political parties think". The panel would be the right body to ask the political parties what they think. Frankly, I cannot see why the panel should be able to discuss a matter possibly raised by one of the parties and make a view known to the commission, and yet, amazingly, be unable to ask the panel what it thinks.
  I welcome the fact that the panel is to be set up. As the Minister said, the government amendment reflects the concern expressed in Committee over the fact that the commission would not have anyone who was actively involved in politics. It was felt by many noble Lords that there was a vacancy in the information gathering and advice. That has largely been filled by the Government's new clause, and I welcome it. But I do not see why we should stop short of allowing the commission to ask the panel its view. I am convinced by my noble friend's argument.
  Baroness Gould of Potternewton: My Lords, I, too, am slightly puzzled. It would be perfectly sensible for the commission to be able to seek advice. Surely that is its role. It will not have all the answers. Therefore, I do not understand the objection to Amendment No. 14A. I am sure that the commission will seek advice from all kinds of directions, but this is a particular one in respect of political parties. It answers all the points that were made at Second Reading about the fact that the commission might not be sufficiently experienced in the ways of political parties. I hope that the Minister will give a little more thought to the amendment and perhaps return to the matter at Third Reading.
  Lord Rennard: My Lords, Amendment No. 14A seems at worst harmless and at best extremely useful. The whole purpose of the debate that we had at an early stage of the Bill was that there was a need to involve the parties more in guiding the commission. It was suggested that there was a danger that the commission, working in isolation from the parties, would not know how they worked. I fail to see how the Government can have any real objection to the amendment. As the Minister said, from time to time the Government find it necessary to consult the political parties on matters of election law. Indeed, after every general election the Home Office conducts a consultation among the political parties in relation to lessons that might be learnt from the recent election campaign. I see no reason why the Government should not support the amendment.
  Viscount Cranborne: My Lords, I support my noble friend Lord Norton in his amendment. There is a

  577
  curious assumption through whole rafts of this Government's legislation that there are some sort of Platonic guardians up there who are repositories of all wisdom and who, by definition, are not only experts but whose views are infinitely preferable and more respectable than the views of the elected representatives in Parliament. It is not difficult to move from that assumption to another curious assumption; namely, that such people are wise almost by birth—dare I say it, in this half-reformed Chamber?—and that they somehow distil their wisdom from cerebration and from air.
  I suspect that the accumulated wisdom of this House, while it is of course the result of your Lordships' intellect, is substantially the result of your Lordships' accumulated experience. If the logic of the Government's new clause is that party representatives should volunteer their views based on their own political experience to a body which, by definition, has been accepted to be one of little political experience, the reverse must also logically be the case; namely, that when the commission is deliberating, it may wish to take an initiative and find out what people at the political coal-face feel and what is their experience. As my noble friend said, and as the noble Baroness, Lady Gould, also pointed out, the good sense in my noble friend's amendment is self-evident. The Government's logic has escaped me, as it seems to have escaped other noble Lords who have spoken to the amendment.
  Lord Bassam of Brighton: My Lords, when the noble Viscount, Lord Cranborne, speaks of distilled wisdom, 1 worry. Distilled wisdom usually comes in a bottle late at night and judgments made thereafter do not necessarily improve.
  Turning to the points made during the debate, I do not think that there is a great deal between us. The Government's view is that the panel will be a consultative body. It is not necessary to give the commission a general power to consult it. Consultation will, of course, take place. It will take place not just with the panel but outside the confines of the panel.
  However, I have heard the words of wisdom—distilled or otherwise—from various quarters of the House. While I am not prepared at this point to give way, as I am urged from the Benches opposite, I am more than happy at least to give some further consideration to the point that is made in the amendment. It may well be that it needs to be further thought through and broadened slightly. As I read the amendment, it is a bit "top down" and too instructive. What we are attempting to do in the clause is not to confine the process of consultation but to broaden it and to provide for the panel to have a role in that.
  I am grateful to those noble Lords who have offered support and comfort in regard to Amendment No. 14. I hope that, particularly in view of what I have just said, the noble Lord, Lord Norton, will feel able to withdraw his Amendment No. 14A.
  Lord Norton of Louth: My Lords, I am grateful to the Minister for that response and for having gone
  578
  somewhat further than he did in his earlier remarks. I am gratified by the comments of other noble Lords. As they made clear, there is no reason why the amendment should not be on the face of the Bill. In the context of the new clause, it is logical and sensible.
  However, the Minister has indicated that he will reflect on this matter and perhaps return to it at Third Reading. On that specific understanding, I shall not pursue it at the moment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved, as an amendment to Amendment No. 14, Amendment No. 15:
  Line 29, after ("belong") insert (", who have made and subscribed to the oath required by the Parliamentary Oaths Act 1866 (or the corresponding affirmation) and are not disqualified from sitting or voting in the House").
  The noble Lord said: My Lords, this is a further amendment to Amendment No. 14. Before speaking to the amendment, it may be for the convenience of the House and the Minister if I ask one question about Amendment No. 14.
  I note that in every case the person who is to be appointed is to be decided by the treasurer of the party. When we consider what this panel will do, I wonder whether the treasurer is the best person. I should have thought that the leader of the party would be the best person to make the appointment, not the treasurer. Perhaps the Minister could explain in his response why the Government have decided to make the treasurer the person who nominates an individual to sit on the parliamentary parties panel.
  Amendment No. 15 relates to the parties that will qualify to appoint members to the panel. The Minister drew attention to the contradictions in the Bill that form the very centre of my amendment. Looking at Amendment No. 14, it would appear that the panel could have a nomination from Sinn Fein, as there is no disqualification for members who have not subscribed to the House of Commons Oath. However, in other parts of the Bill Sinn Fein would not be considered because they have not taken the Oath and they would, therefore, be disqualified. As the noble Lord pointed out, there is a disqualification in Clause 3(6) which refers back to subsection (2)(b)—
  "the registered leader of each registered party to which two or more Members of the House of Commons then belong",
  and deals with the question of the appointment of the electoral commissioners. Subsection (6) says that,
  "reference to Members of the House of Commons does not include any Member of that House who at the time in question … has not made and subscribed the oath required by the Parliamentary Oaths Act 1866".
  Similarly, we find exactly the same provision in Clause 11(1)(b) with regard to policy development grants; namely,
  "a registered party is 'represented' if there are at least two Members of the House of Commons belonging to the party who … have made and subscribed the oath required by the Parliamentary Oaths Act 1866".

  579
  The Minister drew our attention to those two parts in the Bill, but he did not seem to give any justification as to why such a provision should be swept aside when considering the parliamentary parties panel. Indeed, parties that would be considered unsuitable to be consulted under other parts of the Bill would be consulted and allowed to have members on this panel. That seems to me to be both inconsistent and strange.
  There can be no party that this provision is aimed at other than Sinn Fein. I do not believe that anyone else has declined to take the oath for membership of the other place. My question is a simple one, and one which I shall no doubt repeat tomorrow: why is an exception being made for Sinn Fein? If its members wish to take part in the parliamentary parties panel, they should subscribe to the House of Commons oath like everyone else. If Clauses 3 and 11 both contain that debar, why should not this new clause have such a provision? I beg to move.
  Viscount Cranborne: My Lords, I rise to express my support for my noble friend's amendment. As was the case with the amendment of my noble friend Lord Norton of Louth, it seems to me that the logic behind this amendment is self-evident in terms of what the Bill contains, as outlined in Clauses 3 and 11. Equally, there is quite an important principle at stake here that the Government seem to have acknowledged in both those clauses. After all, we are told that the whole basis of the Good Friday agreement has been to recognise a government assumption—a heroic one perhaps but, nevertheless, one which the Government have made—that terrorist parties that have been allowed to participate in the new arrangements as a result of the agreement have given up the Armalite in favour of the ballot box. As the noble Lord knows, I am highly sceptical about whether that assumption is justified. However, let us assume that it is; indeed, we all hope that it is.
  It seems logical, therefore, that we should not give comfort in this clause, any more than we do in other clauses, to parties that have not agreed to the rules to which the rest of us in parliamentary government have subscribed. Indeed, unless everyone plays by those rules, those who resort to violence, bombs and the Armalite tend to have an advantage which is denied to the rest of us and which destroys the body politic in the polity in which we live.
  A commission whose accumulated political wisdom is the reason for its existence should be a body that represents parties that subscribe wholly to the rules to which the rest of us are subject. If the Government do not subscribe to the sentiments expressed in my noble friend's amendment, the logic of that will be even less easy to follow than the logic originally put forward by the noble Lord in his justification—initially at least—for rejecting Amendment No. 14A.
  6.15 p.m.
  Lord Bassam of Brighton: My Lords, the noble Lord, Lord Mackay, asked me a question at the
  580
  beginning of his remarks. I always try to provide him with a straight answer. If I do not always do so on the first occasion, I sometimes do so on the second; but I certainly do so on the third occasion. The noble Lord asked why the treasurer should be the person to make the nomination. If one considers the scheme of things in the Bill, it will be seen that the treasurer is the central player. I have no doubt—indeed, I believe that it is beyond question—that the treasurer of the party would want to consult the "registered leader". That is how I believe the process will work. Indeed, that is how most people expect it to work, and I have no doubt that that is how it will work.
  I turn to the matter of substance before us, as outlined in Amendment No. 15. I indicated earlier what had led us not to include the restriction contained in this amendment. I believe that our line was and is valid. As it stands, the government amendment is what we intended to commend to the House. The reason behind that is the fact that the panel is not a government body but one belonging, quite properly, to the parties. They will have to work together to make the panel work.
  However, I have listened to what noble Lords opposite have said. I believe that the panel has a very important task to complete and that it must work. Noble Lords have made the point that the Government's amendment would add a degree of inconsistency to the Bill. For those reasons, and bearing in mind the fact that this matter needs to be approached both sensitively and practically, I am prepared to accept the noble Lord's amendment as drafted. It is certainly correct as drafted. I am happy to acknowledge that point this evening and to concede on this issue. That is the position of the Government.
  Lord Mackay of Ardbrecknish: My Lords, I was a little concerned earlier that my noble friend Lord Astor would be the only person this evening to receive a concession from the Government—that is to say, to be fair, other than the many concessions contained in the Government's amendments to the Bill, which are concessions or re-thinks arising from the Committee stage. However, I am delighted to see that I, too, have actually scored a concession. Indeed, as the noble Lord pointed out, if consistency is what we are about, if he is prepared to be consistent with me on the Parliamentary Oaths Act, I must be prepared to be consistent with him on the treasurer point. Therefore, I accept the noble Lord's point in that respect. I am delighted to accept his acceptance of my amendment.
  On Question, Amendment No. 15, as an amendment to Amendment No. 14, agreed to.
  On Question, Amendment No. 14, as amended, agreed to.
  Clause [5 Reviews of electoral and political matters]:
  Lord Bach Lord Bach moved Amendment No. 16:
  Page 4, line 8, after ("17(1)") insert (", 18(1)").
  On Question, amendment agreed to.
  Lord Norton of Louth Lord Norton of Louth moved Amendment No. 16A:
  Page 4, line 20, leave out ("whether or not").
  The noble Lord said: My Lords, this amendment seeks to limit the powers of the Secretary of State. As drafted, Clause 5 lists the matters that the commission,
  "shall keep under review, and from time to time submit reports to the Secretary of State on".
  Subsection (2) stipulates that the commission shall review and submit a report on,
  "such matter or matters (whether or not falling within subsection (1)) as the Secretary of State may specify".
  I have no problem with the Secretary of State being empowered to require a report on any matter listed in subsection (1). The matters listed there are all within the competence of the commission. Indeed, as far as I can see, the list is comprehensive in encompassing those matters within the competence of the commission. Paragraphs (a) to (g) within subsection (1) are couched in broad terms. Why, therefore, should the Secretary of State be empowered to require the commission to review and report on matters not falling within subsection (1)?
  Apart from the matters specified in subsection (3), the Secretary of State may require a report on any matter that he chooses, regardless of whether or not it is strictly within the competence of the commission. Indeed, he could require a report on any topic that does not fall within the competence of the commission at all. That would be clearly perverse but, as the clause is presently drawn, the Secretary of State would be perfectly entitled to do so.
  I am wary of conferring broad powers on Ministers, especially where there is no clear, and certainly no compelling, case to do so. I cannot see a compelling case for the broad power conferred by subsection (2). Under my amendment the Secretary of State would be empowered to require the commission to review and report on any matter or matters listed in subsection (1). That in itself is a considerable power but I think a perfectly acceptable one. I cannot see a case for going beyond that; hence my amendment. I beg to move.
  Viscount Astor: My Lords, I support my noble friend's amendment. The commission appears to have an extremely broad power under Clause 5(1)(a)—which I think is right—to report on,
  "such flatters relating to elections to which this section applies as the Commission may determine from time to time".
  As I say, the commission has an incredibly broad remit in this regard; it is not fettered in any way. Therefore the concept of giving the Secretary of State power to go beyond that seems to be perverse because one cannot imagine in what circumstances the Secretary of State would need that power, unless he were in dispute with the commission over its powers and role. If that were the case, should he have the power we are discussing? That is the matter that the Minister needs to address.
  Lord Bassam of Brighton: My Lords, I suspect that too much is being read into the wording here. I am grateful to the noble Lord, Lord Norton, for the
  582
  explanation of his amendment. I reassure the noble Lord that there is nothing sinister in the words "whether or not" in subsection (2) of Clause 5. The Home Secretary will not ask the commission to review a matter that is wholly outside its sphere of operations. However, there may be matters which we have riot thought of to list in subsection (1) which, in time, might perfectly properly be matters that could be put to the commission to examine. It would be a loss to the Bill to take out these words and thereby prevent Ministers tapping into the knowledge and experience that the electoral commission could bring to bear on a particular issue. I hope that with that assurance the noble Lord will withdraw his amendment.
  Viscount Cranborne: My Lords, before the noble Lord sits down, I hope that he will explain something to the House, or rather to me as I have not understood it. This is perhaps a relatively minor matter, but is he not advocating something of a Henry VIII power here if a power is added, perhaps by ministerial order, and therefore amends something which is embodied in primary legislation?
  Lord Bassam of Brighton: My Lords. I do not think that we are advocating a Henry VIII power here. We are providing no more and no less than some necessary flexibility. It is certainly not my intention to introduce a Henry VIII power here; that would be wrong and improper. However, we may not have listed fully all the kinds of matters that might properly fall to the commission to consider. The wording in the Bill provides some small measure of flexibility which should enable that position to be covered. It is no more and no less than that.
  Lord Norton of Louth: My Lords, I am grateful for the Minister's response, but I am not altogether persuaded of the argument that he advanced. We had similar discussions in respect of the Freedom of Information Bill when the Minister advanced exactly the same argument with regard to flexibility. He argued that circumstances might arise which we cannot envisage. That is a dangerous argument. I accept what my noble friend Lord Cranborne said. The measure gives Ministers a broad power in whatever circumstances they think may justify the use of that power. However, the Minister is unable to say what those circumstances may be. Therefore, the broad power is conferred to cover the position. As I say, we heard exactly the same argument with regard to the Freedom of Information Bill. I was not persuaded of the validity of the argument on that Bill. I am not persuaded—
  Lord Wedderburn of Charlton: My Lords, does not the noble Lord agree that the amendment assumes a burden of proof; namely, of proving that there could not possibly be anything which did not fall within the list in the clause, and that that burden of proof has not been discharged?
  Lord Norton of Louth: My Lords, I understand the noble Lord's point, but the clause is so broadly drawn that it is comprehensive in terms of what the commission is expected to do and I can see no reason for going beyond that. It is in many respects, as the Minister argued, a small point in the context of the Bill, but I do not necessarily think that it is a small point in terms of the principle that is involved. It is that principle on which we ought to take a stance. I therefore wish to seek the opinion of the House.
  6.26 p.m.
  On Question, Whether the said amendment (No. 16A) shall be agreed to?
  Their Lordships divided: Contents, 84; Not-Contents, 147.

  Division No. 3

  CONTENTS

  Anelay of St Johns, B.

  Jopling, L.

  Ashcroft, L.

  Knight of Collingtree, B.

  Astor, V.

  Lamont of Lerwick, L.

  Astor of Hever, L.

  Lucas, L.

  Attlee, E.

  McColl of Dulwich, L.

  Blackwell, L.

  Mackay of Ardbrecknish, L.

  Blatch, B.

  Marsh, L.

  Boardman, L.

  Monro of Langholm, L.

  Brougham and Vaux, L.

  Monson, L.

  Burnham, L.

  Montrose, D.

  Campbell of Alloway, L.

  Moynihan, L.

  Campbell of Croy, L.

  Murton of Lindisfarne, L.

  Carnegy of Lour, B.

  Northbrook, L.

  Chadlington, L.

  Northesk, E.

  Colwyn, L.

  Norton of Louth, L. [Teller]

  Cope of Berkeley, L.

  O'Cathain, B.

  Cranborne, V.

  Onslow, E.

  Crickhowell, L.

  Park of Monmouth, B.

  Cumberlege, B.

  Pearson of Rannoch, L.

  Dean of Harptree, L.

  Prentice, L.

  Deedes, L.

  Rawlings, B.

  Dixon-Smith, L.

  Rees-Mogg, L.

  Eden of Winton, L.

  Renton, L.

  Elliott of Morpeth, L.

  Roberts of Conwy, L.

  Elton, L.

  Rotherwick, L.

  Fookes, B.

  Sanderson of Bowden, L.

  Fraser of Carmyllie, L.

  Seccombe, B.

  Freeman, L.

  Selborne, E.

  Gardner of Parkes, B.

  Sharples, B.

  Geddes, L.

  Shrewsbury, E.

  Glenarthur, L.

  Soulsby of Swaffham Prior, L.

  Glentoran, L.

  Taylor of Warwick, L.

  Goschen, V.

  Tebbit, L.

  Greenway, L.

  Thomas of Gwydir, L.

  Hanson, L.

  Trefgarne, L.

  Henley, L. [Teller]

  Vivian, L.

  Higgins, L.

  Wakeham, L.

  Hodgson of Astley Abbotts, L.

  Warnock, B.

  Howe, E.

  Weatherill, L.

  Howell of Guildford, L.

  Willough by de Broke, L.

  Hurd of Westwell, L.

  Windlesham, L.

  Hylton, L.

  Young, B.

  NOT-CONTENTS

  Acton, L.

  Archer of Sandwell, L.

  Addington, L.

  Ashley of Stoke, L.

  Amos, B.

  Ashton of Upholland, B.

  Andrews, B.

  Bach, L.

  584

  Barnett, L.

  King of West Bromwich, L.

  Bassam of Brighton, L.

  Kirkhill, L.

  Beaumont of Whitley, L.

  Layard, L.

  Bernstein of Craigweil, L.

  Lea of Crondall, L.

  Billingham, B.

  Lipsey, L.

  Blackstone, B.

  Lockwood, B.

  Blease, L.

  Lofthouse of Pontefract, L.

  Borrie, L.

  Longford, E.

  Bradshaw, L.

  Macdonald of Tradeston, L.

  Bragg, L.

  McIntosh of Haringey, L. [Teller]

  Brennan, L.

  Brett, L.

  McIntosh of Hudnall, B.

  Brooke of Alverthorpe, L.

  MacKenzie of Culkein, L.

  Brookman, L.

  Mackenzie of Framwellgate, L

  Brooks of Tremorfa, L.

  Maddock, B.

  Burlison, L.

  Mallalieu, B.

  Carter, L. [Teller]

  Massey of Darwen, B.

  Chandos, V.

  Merlyn-Rees, L.

  Cledwyn of Penrhos, L.

  Mitchell, L.

  Clement-Jones, L.

  Molloy, L.

  Clinton-Davis, L.

  Morris of Manchester, L.

  Cocks of Hartcliffe, L.

  Newby, L.

  Cohen of Pimlico, B.

  Perry of Walton, L.

  Crawley, B.

  Plant of Highfield, L.

  David, B.

  Prys-Davies, L.

  Davies of Coity, L.

  Puttnam, L.

  Davies of Oldham, L.

  Ramsay of Cartvale, B.

  Desai, L.

  Randall of St. Budeaux, L.

  Dholakia, L.

  Razzall, L.

  Dixon, L.

  Rea, L.

  Dubs, L.

  Rennard, L.

  Eatwell, L.

  Renwick of Clifton, L.

  Elder, L.

  Richard, L.

  Evans of Temple Guiting, L.

  Richardson of Calow, B.

  Falconer of Thoroton, L.

  Rodgers of Quarry Bank, L.

  Farrington of Ribbleton, B.

  Roper, L.

  Faulkner of Worcester, L.

  Russell, E.

  Filkin, L.

  Sainsbury of Turville, L.

  Gale, B.

  Sawyer, L.

  Gibson of Market Rasen, B.

  Scotland of Asthal, B.

  Gilbert, L.

  Scott of Needham Market, B.

  Goodhart, L.

  Shepherd, L.

  Goudie, B.

  Shutt of Greetland, L.

  Gould of Potternewton, B.

  Simon, V.

  Grabiner, L.

  Smith of Gilmorehill, B.

  Grenfell, L.

  Southwark, Bp.

  Hamwee, B.

  Stoddart of Swindon, L.

  Hardy of Wath, L.

  Stone of Blackheath, L.

  Harris of Greenwich, L.

  Strabolgi, L.

  Harris of Haringey, L.

  Symons of Vernham Dean, B.

  Harris of Richmond, B.

  Taverne, L.

  Harrison, L.

  Taylor of Blackburn, L.

  Haskel, L.

  Thomas of Walliswood, B.

  Hayman, B.

  Tomlinson, L.

  Hilton of Eggardon, B.

  Tordoff, L.

  Hogg of Cumbernauld, L.

  Turnberg, L.

  Hollis of Heigham, B.

  Turner of Camden, B.

  Howells of St. Davids, B.

  Varley, L.

  Howie of Troon, L.

  Walker of Doncaster, L.

  Hoyle, L.

  Wallace of Saltaire, L.

  Hughes of Woodside, L.

  Walmsley, B.

  Hunt of Kings Heath, L.

  Warner, L.

  Irvine of Lairg, L. (Lord Chancellor)

  Warwick of Undercliffe, B.

  Wedderburn of Charlton, L.

  Islwyn, L.

  Whitaker, B.

  Jacobs, L.

  Whitty, L.

  Janner of Braunstone, L.

  Wilkins, B.

  Jay of Paddington, B. (Lord Privy Seal)

  Williams of Crosby, B.

  Williams of Elvel, L.

  Jenkins of Putney, L.

  Williams of Mostyn, L.

  Judd, L.

  Woolmer of Leeds, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  6.37 p.m.
  Clause 6 [Commission to be consulted on changes to electoral law]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 17:
  Page 5, line 28, leave out paragraph (i).
  The noble Lord said: My Lords, the amendment arises out of our discussions a year ago about the free delivery of election addresses at elections to the Greater London Authority. Some of your Lordships may think that I am simply trying to revisit the scene of my past victories, but that is not the point of the amendment. We were immediately suspicious when we saw that the provision was included in Clause 6 and tabled amendments to move it to Clause 7. That may not seem a staggering change, but it is significant.
  Before I continue, I should congratulate the noble Lord, Lord Bach, on his translation from the Whips Office to be the Parliamentary Under-Secretary of State to the Lord Chancellor, no less. I did not know about the change initially. The Government clearly do not believe in the Freedom of Information Bill and were trying to keep the fact a secret. However, it has slipped out and I am sure that the whole House offers the noble Lord our congratulations and best wishes.
  I am sorry that I have to argue with the Minister on this first occasion, but he will remember that your Lordships' House forced the Government to climb down on a free post for the London mayoral elections. The other place had decided that there should be no free post. I suspect that the Government had realised that any free post would only do even more damage to their preferred candidate, Mr Dobson. In the event, poor Mr Dobson was resoundingly beaten and Mr Livingstone was declared the mayor. As far as I can see, the sky has not yet fallen in, although I suspect that it could happen any day.
  The eventual compromise was that there would be a free post in the first London mayoral elections. The noble Lord, Lord Rennard, and I negotiated with the Government on the issue. We heard a lot of arguments about the idea being unaffordable and impossible to organise in time and many other excuses, but in the end the Government gave in and we came to a compromise. It may not have been what the noble Lord, Lord Rennard and I preferred, but it was at least an option. It gave the London electorate a piece of paper which explained what the election was about and who the candidates were. I shudder to think what the turnout might have been if there had been no free post delivery. Many electors in London would not have been acquainted with what was going on.
  As an aside, it seems very unfair that poor Mr Livingstone is still outside the Labour Party, considering that Mr Dennis Canavan, who left about the same time and for largely the same reason, now appears to have been readmitted to the party. If Mr Livingstone reads the proceedings of the House of Lords, which I am sure he does—at least, those parts which refer to Mr Livingstone—I can advise him that the clear course of action is to follow Mr Canavan and threaten to cause a by-election. The moment that one
  586
  threatens to do that, as Mr Canavan found out, suddenly one becomes acceptable again and the by-election threat is withdrawn. Perhaps London is different, as there is no Scottish National Party here, but it certainly might be worth Mr Livingstone having a try.
  The Bill, as drafted, states that the question of the delivery of a free election address at elections to the Greater London Authority would be one of the matters where the authority would consult the commission. That implies that it could consult the commission and, if it said that it thought that there should be a free post, the authority could still decide otherwise. By moving the paragraph from Clause 6 to Clause 7 I have put it into one of the places where the powers would only be exercisable on the commission's recommendation. So, if it recommended a free post, that would take place, but, if it said no and that there was no need for it, the Government could achieve its original purpose. That would be quite sensible here.
  I shall be interested to hear what the noble Lord has to say about it because he will remember the difficulties that the Government had. I am not sure whether I should tempt the Liberal Democrats. I shall be interested to see what support I may get from them for this amendment, which is very small and consistent with previous outings today. I am quite sure that the Government could quite easily accept it, I beg to move.
  Lord Bach: My Lords, I thank the noble Lord, Lord Mackay, for his very kind words. His arguments were not quite so kind. I am sorry that he felt bad about arguing with me today. I would not know him if he were not arguing with me. I am very grateful for the very kind remarks that he made. Indeed, if I shut my eyes and listen to the noble Lord—I never do that when the noble Lord is speaking—I could have been taken back 12 months or nine months, which seems like an age ago. We were discussing similar points about forthcoming elections that saw the triumphant return to the Greater London Authority of my noble friend Lord Harris and some noble Lords from the Liberal Democrat benches as well.
  The effect of Amendments Nos. 17 and 18 would be, as the noble Lord said, to make the order-making power under Section 17A(3) of the Greater London Authority Act 1999, which relates to the free delivery of election addresses at elections to the Greater London Authority, exercisable only on the recommendation of the Electoral Commission. As the Bill stands, that could only be made after consultation with the commission. The question of a free post provoked a good deal of debate and excitement in your Lordships' House. We are not entirely surprised that the noble Lord sees some minor attraction in taking the matter wholly out of the hands of the Secretary of State.
  We do not entirely agree. The provision of free post facilities may involve considerable sums of public money. The commission should be consulted and its view taken extremely seriously as regards the proposed arrangements for a free postal delivery of an election address. However, it must be right that the

  587
  government of the day, of whatever political persuasion, is able to take account of the cost implications, which may be very large for such arrangements, before making such an order. Therefore, we believe that the government of the day must be able to modify any recommendation made by the commission if they see fit.
  Having been consulted, if the commission were to come to a certain view and the government did not, I do not believe that it would be very long before your Lordships' House had something to say about it which might be fairly unpleasant for whichever government was in power at the time. As regards the noble Lord's amendment, that may be a real safeguard against what he fears is in the Bill at present. I hope that the noble Lord will withdraw his amendment
  6.45 p.m.
  Lord Mackay of Ardbrecknish: My Lords, I am sorry to dispute with the noble Lord after congratulating him. I was not greatly convinced by that argument. It may be that the Government will get their will on there being no free post without having to come before the House. Therefore, the opportunities which arose earlier in the year which allowed your Lordships to deal with the issue in the way we did, will not arise again. Not only was there some secondary legislation, which, very unusually, we voted against, but there was the Representation of the People Bill in which the Government included the clause which resolved the dispute between your Lordships' House and the Government. Two things happened in a fortuitous way; one a statutory instrument and the other the fact that the Representation of the People Bill was before your Lordships at the same time. I do not see such things happening so fortuitously the next time, if we come to such a position. I do not believe that your Lordships would be in the same position as we were earlier this year.
  I noticed that the noble Lord congratulated his noble friend Lord Harris on his election and other noble Lords, looking towards the Liberal Democrat Benches. It may be I am becoming hard of hearing, but I did not hear the noble Lord congratulate Ken. However, as the noble Lord has just been made a Government Minister, no doubt he wants to hang on to that position and knows what is good for him.
  Lord Bach: I was talking about the Greater London Authority elections. I do not know whether the noble Lord was listening to me. I was not talking about the mayoral election. Indeed, I am not sure whether this particular amendment is about the mayoral election at all, although the noble Lord spoke about it at length.
  Lord Mackay of Ardbrecknish: My Lords, I believe that this matter is about election to the Greater London Authority and I suspect that the Mayor had something to do with that. If my amendment was technically flawed, I am sure the Minister would have told me. I have learnt that from Ministers. All the answers appear to be the same as the earlier ones;
  588
  namely, the involvement of considerable sums of public money and so on. It would be better if we moved this particular paragraph from Clause 6 to Clause 7. As the Liberal Democrats have been silent on the matter, I cannot resist the temptation to see which Lobby they will enter on this issue. I seek the opinion of the House.
  6.48 p.m.
  On Question, Whether the said amendment (No. 17) shall be agreed to?
  Their Lordships divided: Contents, 92; Not-Contents, 109.

  Division No. 4

  CONTENTS

  Addington, L.

  McColl of Dulwich, L.

  Anelay of St Johns, B.

  Mackay of Ardbrecknish, L.

  Ashcroft, L.

  Maddock, B.

  Astor, V.

  Marlesford, L.

  Astor of Hever, L.

  Marsh, L.

  Attlee, E.

  Montrose, D.

  Beaumont of Whitley, L.

  Murton of Lindisfarne, L.

  Blatch, B.

  Newby, L.

  Boardman, L.

  Northbrook, L.

  Brougham and Vaux, L.

  Northesk, E.

  Burnham, L. [Teller]

  Norton of Louth, L.

  Campbell of Alloway, L.

  O'Cathain, B.

  Carnegy of Lour, B.

  Oakeshott of Seagrove Bay, L

  Chadlington, L.

  Onslow, E.

  Clement-Jones, L.

  Park of Monmouth, B.

  Colwyn, L.

  Pearson of Rannoch, L.

  Cope of Berkeley, L.

  Rawlings, B.

  Cranborne, V.

  Razzall, L.

  Cumberlege, B.

  Reay, L.

  Dean of Harptree, L.

  Rennard, L.

  Deedes, L.

  Renton, L.

  Dholakia, L.

  Roberts of Conwy, L.

  Dixon-Smith, L.

  Rodgers of Quarry Bank, L.

  Eden of Winton, L.

  Roper, L.

  Elles, B.

  Rotherwick, L.

  Elliott of Morpeth, L.

  Sanderson of Bowden, L.

  Elton, L.

  Scott of Needham Market, B.

  Ferrers, E.

  Seccombe, B.

  Fookes, B.

  Selborne, E.

  Freeman, L.

  Shrewsbury, E.

  Gardner of Parkes, B.

  Shutt of Greetland, L.

  Geddes, L.

  Soulsby of Swaffham Prior, L.

  Glenarthur, L.

  Strange, B.

  Glentoran, L.

  Taylor of Warwick, L.

  Goodhart, L.

  Tebbit, L.

  Harris of Richmond, B.

  Thomas of Gwydir, L.

  Henley, L. [Teller]

  Thomas of Walliswood, B.

  Higgins, L.

  Tordoff, L.

  Hodgson of Astley Abbotts, L.

  Vivian, L.

  Howe, E.

  Wallace of Saltaire, L.

  Hunt of Wirral, L.

  Walmsley, B.

  Hurd of Westwell, L.

  Warnock, B.

  Jacobs, L.

  Williams of Crosby, B.

  Knight of Collingtree, B.

  Willoughby de Broke, L.

  Laird, L.

  Windlesham, L.

  Lamont of Lerwick, L.

  Young, B.

  NOT-CONTENTS

  Acton, L.

  Barnett, L.

  Amos, B.

  Bassam of Brighton, L.

  Andrews, B.

  Bernstein of Craigweil, L.

  Archer of Sandwell, L.

  Billingham, B.

  Bach, L.

  Blackstone, B.

  589

  Borrie, L.

  Jenkins of Putney, L.

  Bragg, L.

  Judd, L.

  Brennan, L.

  King of West Bromwich, L.

  Brett, L.

  Kirkhill, L.

  Brooke of Alverthorpe, L.

  Layard, L.

  Brookman, L.

  Lea of Crondall, L.

  Burlison, L.

  Lipsey, L.

  Carter, L. [Teller]

  Lofthouse of Pontefract, L.

  Chandos, V.

  Macdonald of Tradeston, L.

  Clinton-Davis, L.

  McIntosh of Haringey, L. [Teller]

  Cocks of Hartcliffe, L.

  Cohen of Pimlico, B.

  McIntosh of Hudnall, B.

  Crawley, B.

  MacKenzie of Culkein, L.

  David, B.

  Mackenzie of Framwellgate, L

  Davies of Coity, L.

  Mallalieu, B.

  Davies of Oldham, L.

  Massey of Darwen, B.

  Dean of Thornton-le-Fylde, B.

  Mitchell, L.

  Desai, L.

  Molloy, L.

  Dixon, L.

  Morris of Manchester, L.

  Dubs, L.

  Plant of Highfield, L.

  Elder, L.

  Puttnam, L.

  Evans of Temple Guiting, L.

  Ramsay of Cartvale, B.

  Falconer of Thoroton, L.

  Randall of St. Budeaux, L.

  Farrington of Ribbleton, B.

  Rea, L.

  Faulkner of Worcester, L.

  Renwick of Clifton, L.

  Filkin, L.

  Richardson of Calow, B.

  Gale, B.

  Sawyer, L.

  Gibson of Market Rasen, B.

  Scotland of Asthal, B.

  Gilbert, L

  Shepherd, L.

  Goudie, B.

  Simon, V.

  Gould of Potternewton, B.

  Stoddart of Swindon, L.

  Grabiner, L.

  Stone of Blackheath, L.

  Grenfell, L.

  Strabolgi, L.

  Hardy of Wath, L.

  Symons of Vernham Dean, B.

  Harris of Haringey, L.

  Taylor of Blackburn, L.

  Harrison, L.

  Tomlinson, L.

  Haskel, L.

  Turnberg, L.

  Hayman, B.

  Turner of Camden, B.

  Hilton of Eggardon, B.

  Varley, L.

  Hogg of Cumbernauld, L.

  Walker of Doncaster, L.

  Hollis of Heigham, B.

  Warner, L.

  Warwick of Undercliffe, B.

  Howells of St. Davids, B.

  Wedderburn of Charlton, L.

  Howie of Troon, L.

  Whitaker, B.

  Hoyle, L.

  Whitty, L.

  Hughes of Woodside, L.

  Wilkins, B.

  Hunt of Kings Heath, L.

  Williams of Elvel, L.

  Islwyn, L.

  Williams of Mostyn, L.

  Janner of Braunstone, L.

  Williamson of Horton, L.

  Jay of Paddington, B. (Lord Privy Seal)

  Woolner of Leeds, L.

  Young of Old Scone, B.

  Resolved in the negative, and amendment disagreed to accordingly.
  6.58 p.m.
  Clause 7 [Powers with respect to elections exercisable only on Commission recommendation]:
  [Amendment No. 18 not moved.]
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 19:
  After Clause 8, insert the following new clause—

  COMMISSION TO GIVE ADVICE ON WORDING AND FAIRNESS OF QUESTION IN A REFERENDUM
  (" .—(1) The Commission shall, before any Bill containing provisions for a referendum under section 99 of this Act is held—

  (a) give advice as to the question, or questions, to be asked;

  (b) make a statement as to the fairness of the wording of such a question, or questions, and the capacity of such a question, or questions, to be easily understood by the electorate.

  (2) Any advice given under this section shall be made public prior to the date on which a Bill for a referendum under section 99 of this Act is laid before Parliament.").
  The noble Lord said: My Lords, noble Lords will realise that with Amendment No. 19 we are discussing government Amendment No. 171. In Committee, we discussed the issue of the question. Quite clearly, the question is one of the most important items in any referendum. It is not so much that both sides must agree on the fairness of the question, but proponents for both sides of the argument must feel that the question is fair. Then the result will be considered to be fair. The way in which the question is put is obviously of great significance. Anyone who studies opinion polls and examines results which are obtained by tweaking questions one way and another can see how important the question is in a referendum.
  I tabled Amendment No. 19 after we discussed the Bill in Committee. The amendment would ensure that, when a government decided to proceed with a referendum, they would take the mind of the commission and publish its opinion. Therefore, when the detail of the referendum, including the quest ion to be asked, was discussed in a Bill before your Lordships' House and the other place, Parliament would know the commission's view on the question. I do not believe that any government would be able to ignore the view of the commission in relation to the referendum question. If they were to do so, there would be such a fuss that their position would simply be untenable.
  The Government have tabled Amendment No. 171, which seeks approximately the same outcome but perhaps does not go as far as we would wish. It goes some way, but it does not make it mandatory for the government of the day to obtain the commission's approval of the wording of the question. As I said, if the commission were to tell a government that it did not consider the question to be fair, I do not believe that any government would be able to continue with it through both Houses of Parliament.
  The Minister will explain to your Lordships exactly what his amendment seeks. I say only that noble Lords will note that the government amendment is three times longer than mine. I suspect that that tells us everything about this Bill, which is now 50 pages longer than it was when we started the Committee stage. I look forward to counting by how many pages it increases following this stage. I make no complaint about this extra page. However, I beg to move my amendment in order that we may discuss the Government's amendment.
  Lord Norton of Louth: My Lords, I rise briefly to welcome Amendment No. 171, which has been tabled by the Government in response to our discussion on this particular issue at an earlier Committee sitting. I made the point then that, given the expertise of the commission, this could be made use of as regards the wording of any referendum. The point I made was that not only has one to look at a referendum question in terms of whether it is fairly put but also whether it is unambiguous. That is an extremely important point

  591
  because referendum questions may often appear to be unambiguous to those who draft them but when put to electors they are capable of being interpreted completely differently. Research in the United States has shown that sometimes there can be a high level of mistaken voting by people who have misinterpreted the question.
  Lord Lamont of Lerwick: My Lords, perhaps I may interrupt my noble friend. As someone who has just looked at these two amendments, I see that the Government's amendment—no doubt the noble Lord will address this point—is all about intelligibility. The amendment posed by my noble friend Lord Mackay was about the fairness of the question. These seem to me to be rather separate matters. Perhaps my noble friend would address that point, because it is possible to word a question in a way which is more likely to receive an answer "yes" or "no".
  Lord Norton of Louth: My Lords, I thank my noble friend for his intervention. The point I made at an earlier stage was about the importance of ensuring that questions were unambiguous and that the commission had a role to play in that respect. I very much welcome any move towards the question of intelligibility.
  I was about to deal with the very point that my noble friend Lord Lamont has raised—the question of fairness. As my noble friend said, that is a different and separate point, in terms of making sure that the question is both balanced and unambiguous. I was going on to invite the Minister to address this matter.
  The amendment itself is comprehensive in relation to intelligibility and it covers all the relevant circumstances that might be envisaged in this particular context. I very much welcome the amendment so far as it goes but, like my noble friend, I would invite the Minister to address the matter of equity as well as that of intelligibility. The government amendment is to be welcomed because it goes a long way towards meeting the point and I am interested to know whether the Minister would be prepared to go that little extra distance on the very point that has been raised.
  Viscount Cranborne: My Lords, I am pleased that the Government have given us half a loaf, although disappointed for the same reasons as my noble friend Lord Norton. I wonder whether the Government would also consider something else. It seems to me that no matter how wise the commission may be—and we have discussed its wisdom almost ad nauseam during these proceedings—that wisdom will always be a matter of judgment one way or the other as far as it is concerned. Of course, the members of the commission are there as wise men and women but not as elected wise men and women. They are there because of the rather curious 21st century view that wise men and women are better than elected men and women. That is a view to which I have never subscribed, as your Lordships who have had the misfortune of hearing me over many years will no doubt have realised.
  592
  I wonder whether the Government have ever actually considered that they might have avoided all this trouble in the first place if they had postulated that it should be impossible to hold a pre-legislative referendum. If they were to say that all referendums should be post-legislative, it would be very difficult for any government of the day then to emasculate parliamentary scrutiny of any proposal by means of the rather ghoulish accusation that anybody who disputed a piece of legislation introduced after a pre-legislative referendum was going against the will of the people.
  I suspect that it would have been much better had we provided in this Bill that referendums should always pose the question: "Do you approve of this piece of legislation or not?" Then the matters of definition would not arise. However, as the Government have not taken that route, we must be grateful for small mercies.
  Lord Bassam of Brighton: My Lords, on the first day of Committee—it seems a long time ago—we debated the question of involving the electoral commission in settling the referendum question. The debate was good-humoured, penetrating and very thoughtful and I thought we had discovered a degree of consensus. I indicated that the Government were likely to bring forward an amendment, and this has how been done. The Official Opposition indicated that they were not likely to let the matter go and they too, very fairly, have brought forward their own amendment.
  The two new proposed clauses are clearly alternatives and the Committee has to choose between the two. I have no doubt at all that the Government amendment is to be preferred and I hope to be able to convince your Lordships of that. Indeed, I hope I might even be able to convince the noble Lord, Lord Mackay, of that and to invite him to withdraw his amendment in favour of our own.
  There are two main points of difference between the proposed new clauses. The first concerns the procedure for engaging the commission, and here I hope to convince all sides The procedures in the two new clauses are different but I do not believe that on reflection anyone could hold up the procedure proposed in the Opposition amendment as being superior to our proposal.
  The procedure set out in the government amendment is simple and straightforward. The commission will notice that a Bill with a referendum question has been introduced into Parliament and will, of its own motion, publish its opinion. The procedure set out in the Opposition's new clause is rather more complicated and, for that reason, perhaps less satisfactory. Its essential feature is that, somehow, the commission must give its advice before a Bill is introduced. The obvious inference is that the Government or a Member of Parliament, when intending to bring forward a Bill, should at least give the commission an opportunity to comment, and perhaps even ask the commission to frame a proposal before the Bill is introduced. That proposal, I suggest, is unsatisfactory. Its effect is that a Bill cannot be

  593
  introduced unless and until an outside body—in this case, the electoral commission—has opined on it. It would, I think, be the first instance in which Parliament had effectively bound itself in such a way. It would also provide rich opportunities for confusion. How is the matter to be put to the commission if there is not yet a Bill? Will the commission disclose that it has been approached? Will people have an opportunity to make representations to the commission to influence the advice it gives? I daresay that noble Lords, with their forensic skills, could find some sort of answer to those questions if there was anything really at stake. But they do weigh against the Opposition's new clause when there is a simple, straightforward and, I would argue, transparent alternative on offer, as in the government amendment.
  The second main difference between the two clauses lies in the scope of the matters on which the commission is asked to give its opinion. I accept at the outset that this may be more contentious than the procedural aspect. Even here, however, I am not without hope. I thought that, in Committee, there was a good degree of consensus that the intelligibility of a proposed question was a matter on which it was preeminently sensible to engage the commission. I think that that is probably an opinion shared by most Members of your Lordships' House. It is in everyone's interest that if a question can be put in a clearer form, and we can reduce the risk of people voting for an outcome that they do not want, we should do it. That seems to be common ground. However, I should add that the intelligibility of a question also seems to the Government to be a matter on which the engagement of the commission is cost free. No government, I hope, will propose a question which is deliberately obscure; and no government, I hope, will feel that their honour is impugned if the commission is able to suggest some modest improvements.
  Beyond that point, however—and the Opposition's amendment goes a good way beyond that point—we get into much deeper waters. I am uneasy about asking the electoral commission for advice on, "The question to be asked". I am equally doubtful about asking it for an opinion on the "fairness" of the proposed question. That may be a surprisingly candid comment, but it will be stuck to resolutely on this side. Whether a particular question should be asked, and whether it is a fair question, are matters which, as I think most Members of your Lordships' House would and should readily accept, are very much in the political arena.
  If a government propose that a question should be asked, that will be because they believe that it should be asked. A government will, almost by definition, believe that it is a fair question to put. The opposition, whatever their political colour at the time, will, frankly, have a duty to oppose, should they wish to do so.
  It is highly likely that the opposition of the day will look to find something to quarrel with in the form of the question. I would argue that that is part of the cut and thrust of our political process. I do not think that there is anything wrong with that. It means, inevitably, that the commission will be commenting on a matter
  594
  which will, in due course, become one of party-political controversy. I would argue that that is not a good position in which to put the commission; nor—again, very frankly—would the commission necessarily have any special expertise in that area.
  Lord Norton of Louth: My Lords, I am grateful to the Minister for giving way. I understand the point he makes. However, perhaps I may draw his attention to the fact that there could be a methodological aspect to the question, rather than a partisan aspect. The commission could be looking to ensure—this is where expertise is involved—that there is no bias in terms of the wording of the question. I do not necessarily mean looking for deliberate bias in terms of those drawing it up. However, a wording may be constructed which might have a built-in bias, of which those drafting may be unaware. That would not necessarily be deliberate. I am not thinking in terms of an attempt to gain advantage by those drafting the question; I seek to ensure that the question, which might come under the broad heading of being unambiguous, is unbiased in the sense that the wording does not point people in a particular direction.
  There is a technical aspect to this, which I mentioned in Committee. A noble Lord suggested that we should have a straightforward question which could he answered "yes" or "no". My understanding is that that is problematic because there is a bias towards saying "yes" in response to a question. That is the sort of thing of which I was thinking in terms of consulting the commission to avoid bias in the question.
  Lord Bassam of Brighton: My Lords, again, one person's bias may be another person's equity. The commission could find itself drawn into a political aspect which would be profoundly uncomfortable. That is not what we want from the commission. We have all set out our stall very much in terms of the commission being free and independent of the political process, although from time to time advised by it. However, I believe that that is where the commission properly sits. It is for that reason that I do not think we should taint the process.
  As a politician, putting myself in that position, I am not sure on what basis I would want to respond to a request for advice on fairness or bias on a referendum question. I could only respond on the basis of what I personally happen to think about the issue in question. I do not think that there is an off-the-shelf technical answer to, for example, the question of whether referendum questions should be cast in positive or negative form, provided that they are intelligible. The Government's amendment looks after that.
  I therefore suggest to the House that if your Lordships accept the Government's new clause, they will have the matter pretty much where they want it. For that reason, the Government's new clause is greatly to be preferred to the one tabled by the Opposition. I recognise that the issue is important, as I am sure will all Members of your Lordships' House. However, because of the political nature of any debate

  595
  about fairness, equity, bias and so forth, it would be wrong to place those as questions for the commission to consider in giving its advice on intelligibility.
  I am grateful for the support for the amendment we have moved, which I thought was a fair reflection of the debate in Committee, long ago though that was, and of the points raised then by the noble Lord, Lord Norton of Louth. I think we have it about right. We have gone as far as we possibly can on that question. I accept that the question of fairness is a legitimate one for debate, but that debate should be had politically.
  7.15 p.m.
  Lord Mackay of Ardbrecknish: My Lords, I indicated, perhaps over-generously, that I was pleased to see the government amendment on this issue. I fully accept the procedural points raised by the Minister; that is, that his amendment covers a situation in which the question would be in a Bill or in an affirmative order. Indeed, although I cannot understand or even conceive of it ever happening, it covers the situation in which the question might be in a negative order, which I find rather unbelievable. However, I accept that the amendment covers all eventualities about how the question would be addressed or dealt with in Parliament.
  The problem comes down to the use of the word "intelligibility" instead of "fairness". The noble Lord came a little close to us when he said that certainly it should not be obscure. That is a little progress, at least towards the fairness attitude. However, as my noble friend Lord Cranborne rightly pointed out, these matters come into play only when we are not dealing with a post-legislative referendum. If we were, the question would be simple; for example, "Do you wish the Scotland Act to come into force: yes or no?" That is straightforward. However, the bias comes in if we are dealing with a pre-legislative referendum and are therefore not asking whether an Act should come into force.
  The Minister seemed to find it hard to believe the point raised by my noble friend Lord Norton, that there could be an unintended bias in the question simply by virtue of the nature of the question. Such bias could work against the interest of the Government. Therefore, the electoral commission might well have a view about whether or not there was that kind of bias in the question. To put it perhaps at its most extreme, let us assume for the moment that at some date in the future enough of my fellow countrymen decide to elect the Scottish National Party to the Scottish Parliament, and on that basis look for a referendum to make Scotland free or to break up the United Kingdom.
  I have to say to your Lordships that those two questions would receive quite different answers in Scotland. I believe both would get negative answers from the SNP; but the question phrased, "make Scotland free", would be likely to gain a bigger "yes" vote—though not perhaps a majority—than would the question phrased, "break up the United Kingdom".
  596
  That is an illustration in bold terms of where bias can come in. Noble Lords can be assured that if the Scottish National Party was devising the question, it would go for the "make Scotland free" form. Perhaps if my party or the governing party here were devising the question, we might be more tempted to go for, "breaking up the United Kingdom". That is the essence of the problem. Both are intelligible but they both also contain bias. If I can step aside for a moment from the position that I would take on those questions, I can see that the one question is as biased as the other; and that is what we are getting at.
  However, we have made progress with the Government in these amendments and for that I am grateful. Without being churlish, I hope that the noble Lord will understand when I say that we will study carefully what he says and study his amendment as it appears in the Bill. I am not sure whether my noble friends agree with me on this, but we may well come back to the issue of fairness as well as intelligibility at Third Reading. However, I welcome the Government's amendment. It arises out of our debate. Whether or not it could have gone further is something we shall ponder between now and next week. For the moment, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 9 [Giving of advice and assistance]:
  Viscount Astor Viscount Astor moved Amendment No. 20:
  Page 7, line 2, at end insert—
  ("() Advice given under subsection (3), other than in confidence, shall be made public and available in a format that the Commission thinks fit to any relevant body to which this section refers.").
  The noble Viscount said: My Lords, Amendments Nos. 20 and 21 relate to separate points in regard to the advice that the commission may give out.
  We believe that non-confidential advice given by the commission to a political party should be made available to any relevant body whom it may concern or directly affect. The publication of such advice would be of benefit to both the other registered parties and to the political process because it would assist those bodies with their duty to comply with the provisions of this Bill and help to ensure that they were acting in accordance with the same information.
  That would be helpful to the commission because it would avoid multiple applications for the same information and save other parties from having to "reinvent the wheel", as it were, on every occasion when general advice was required. In the distribution of such advice, the commission would be able to take advantage of current technology and limit any expense by sending out information electronically by e-mail, via circulars or in similar ways. Over time, the body of advice built up as a result of that distribution would constitute a valuable source of readily available knowledge to which all could refer without the need to return unnecessarily to the commission.
  Amendment No. 20 does not seek to expose sensitive information which might prejudice the standing of either the commission or the body to which it gave the advice. It requires only that the commission publish open information and leaves the form and consequently the content of that publication to the discretion of the commission. Amendment No. 20 is in keeping with the general principle of clarity and openness that lies behind the Bill. It would be of benefit to the commission and help to make its life easier.
  Amendment No. 21 concerns a slightly different point. It seeks to clarify the status of advice given by the commission. It is unclear whether following the advice of the commission would constitute a "reasonable excuse" defence to many of the offences created by the Bill—of which there are many. An individual may be placed in a position where he had followed the advice of the commission to the letter but that advice was subsequently ruled wrong by the courts. If that is so, we should look again at whether or not that individual should be guilty of an offence.
  Indeed, what will be the legal status of advice given by the commission? Will the courts have to have regard to that advice or can they ignore it? But that would not be helpful; it would make it difficult and discourage people from going to the commission to ask for advice, which is presumably what we want. So Amendment No. 21 seeks clarification on the nature of advice, particularly on its status, and I should be grateful if the Minister could elucidate that point. I beg to move.
  Baroness Gould of Potternewton: My Lords, on the face of it, Amendment No. 20 seemed very sensible. One should be able to learn from the advice given by the commission to one political party; for instance, on one occasion we had read out to us letters that had come from the Home Office in respect of the electoral register—letters from both the Labour and Conservative Parties—and that seemed OK. One could also say that any information given by the electoral commission should be impartial and therefore there is no problem. That seemed fine to me and I thought it was an amendment I could support.
  Then I looked at the amendment again and realised that the wording, rather than the principle, is somewhat flawed. It says,
  "Advice give under subsection (3)".
  When we look at that subsection it refers to advice given to,
  "registration officers [and] returning officers at relevant elections".
  It may well be that a returning or registration officer is asking advice about a specific area. The request may not be confidential, but neither is it relevant to everybody else. Yet the wording says "shall be made public", implying that all such information shall be made public. That seems to me to be nonsense.
  598
  The wording,
  "Advice given … other than in confidence",
  means that anybody who does not want the information disclosed has to remember to say, "This matter is in confidence". So the whole process, as the amendment is worded, is completely unworkable.
  Lord Hodgson of Astley Abbotts: My Lords, I rise to speak to Amendment No. 21, which raises an important point.
  We discussed in Committee the fact that this Bill will reach further down into the political structure than ever before and that local political parties will find themselves in the front line in a way that hitherto has been unheard of. We have referred to, discussed and agreed that the difficulty of persuading individuals to take on these posts at local level is considerable. If the posts carry with them other anxieties about prosecution and so forth, that difficulty will be greatly increased.
  Amendment No. 21 at least offers individuals locally and political parties some shelter. It is important that we have a clear understanding from the. Government tonight as to what the position of advice given by the commission will be. That will affect individual local associations considerably. The passage of information will often take place at high speed. People will want to know what their position is and whether they can use the commission's advice as an air raid shelter inside which they can crouch. For the sake of those who run local associations, it is important that the Minister makes it clear that the commission's advice will provide them with considerable protection under the law.
  7.30 p.m.
  Lord Bassam of Brighton: My Lords, Clause 9 is concerned with the provision of advice and assistance by the electoral commission to other bodies and authorities. Subsection (3) would enable the commission to act as a central point for the provision of advice and guidance on best practice to electoral administrators and to provide guidance to political parties, third parties and referendum campaign organisations on the arrangements they should make in order to comply with the controls on funding and expenditure set out in the Bill. Amendment No. 20 would require that such advice, except where provided in confidence, be made public and available to any body to which that section refers.
  I am not at all persuaded of the desirability of such a provision. It goes without saying that any written advice or guidance in the form, for example, of circulars to registered parties should be generally available. There is no argument about that. But the amendment seems to have far more than that in its sights. It appears to propose that if party X or Y seeks advice from the commission on a particular matter, that advice should be made public and available to other political parties and campaigning groups.

  599
  I have no doubt that, like any regulatory body, the electoral commission will receive numerous requests for advice in relation to compliance with the Bill. Parties will seek advice on the framing of financial schemes; on how they should report changes as to their registered officers; and on whether particular donations or items of expenditure need to be accounted for. Some inquiries may simply be a matter of a telephone call. Others may involve an exchange of complex correspondence. The commission might also arrange meetings with party representatives or seminars for their benefit. I do not see that all of this should, or even could, be made public. What does the noble Lord have in mind? Are all these exchanges to be published in a report or posted on a website?
  Furthermore, it seems to me that parties and campaign groups may be more reluctant to seek advice if they know that the advice given in relation to a matter of particular and perhaps sensitive concern to them will be made generally available. I note that the amendment provides for an exclusion where advice is sought in confidence. I suspect that it would simply become the norm for advice to be sought in confidence as parties and campaign groups tried to hide behind that, which would probably undermine the point of the amendment.
  Amendment No. 21 would make it a defence for a person charged with an offence under the Bill or in connection with a relevant election to prove that he acted in accordance with the advice given by the commission. I should say, first, that I have every sympathy with the proposition that it would be rough justice if a person acted in accordance with advice given by a public authority and subsequently found himself prosecuted. In practice, I have little doubt that a prosecution would not be proceeded with where it was clear that such advice unwittingly encouraged the commission of an offence. Clearly, the onus will be upon the electoral commission to provide advice that is consistent with the provisions of this Bill.
  I am not persuaded that it would be right to place this general defence on the face of the Bill. First, it begs questions about what constitutes "advice". Clearly, such a defence would have substance if the advice in question took the form of written guidance such as a circular letter to registered parties. But such a defence might be based on an unrecorded telephone conversation with a member of the commission's staff. There might be no way of establishing whether the commission was in full possession of the relevant facts before the advice was given. And there would be issues about whether advice given in such a situation could ever be assumed to be authoritative. Judicial proceedings would no doubt take account of such considerations but it seems difficult ground on which to frame a statutory defence.
  There is, however, a more fundamental reason of principle why such a defence should not be at large. I say "at large" because there may be particular instances where it is appropriate to provide for such a defence. The Bill provides a case in point. Clauses 77(3) and 115(3) already make it a defence for a person
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  charged with exceeding limits on campaign expenditure to show that they complied with a code of practice issued by the commission under Schedules 8 and 13. The relevance of such a defence in the context of those schedules is clear. In providing for the issue of such a code of practice, Parliament will be indicating that the provisions of Part I of those schedules, which by their nature cannot be wholly exhaustive, are likely to require interpretation and clarification in terms of detail. Since any such guidance will be in the nature of a gloss on the provisions of the Bill, it is quite proper to provide that it should be a defence to show that one acted in accordance with the guidance.
  However, it would be quite another matter to provide that every offence in the Bill should attract such a defence. In creating a statutory offence, Parliament is asserting its intention that a particular course of action should result in liability to prosecution. It would be odd then to provide that Parliament's intention should be contingent upon whether the regulatory body interprets the Bill correctly. Ultimately, the question of whether an offence has or has not been committed must be for the courts.
  I apologise for the length of my reply. I have tried to be thorough and cover all the issues raised. I hope that having heard my reply noble Lords will feel able to withdraw their amendment.
  Viscount Astor: My Lords, I am sorry that the noble Baroness thought that my amendment was unworkable. When I tabled it I thought that it was eminently workable. However, what is important is the Minister's comment about how the commission will disseminate information. That is helpful to the process. I accept that it is always difficult to know where the cut-off point is, but we know that the commission will look to see what was said as the Bill went through Parliament. It can look to see what the Minister said and that will be taken into account by the commission when deciding how to act. Therefore, the Minister's reply went a long way to satisfy my concerns.
  Amendment No. 21 raises an important issue and I am grateful for the Minister's lengthy but helpful and clear advice. He said that written guidance must be taken into account by the court. It would be a defence and it is important that everyone knows that. As he said, any informal advice would be a different matter.
  The Minister has given helpful answers to both points and I am grateful to him. I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
  Moved accordingly, and, on Question, Motion agreed to.
  [The Sitting was suspended from 7.40 to 8.30 p.m.]
  [Amendment No. 21 not moved.]
  Clause 11 [Policy development grants]:
  Lord Rennard Lord Rennard moved Amendment No. 22:
  Page 8, line 13, at end insert—
  ("() "a policy promotion grant" is a grant to a represented registered party to assist the party with the promotion of policies for inclusion in any manifesto on the basis of which—

  (i) candidates authorised to stand by the party will seek to be elected at an election which is a relevant election for the purposes of Part II, or

  (ii) the party itself will seek to be so elected (in the case of such an election for which the party itself may be nominated);").

  The noble Lord said: My Lords, Amendments Nos. 22 to 26 set out an alternative to the proposals for assisting the financing of democracy put forward by the Neill committee. This alternative removes the Government's principal objection to the proposals of the Neill committee. The alternative will cost the Chancellor of the Exchequer no more than the Conservative Party's proposals. It should, therefore, be a compromise between the two cases to be argued shortly between Government and Conservative Front Benches over the proposed tax concession scheme.
  It is clear that the Government do not want the tax concession scheme. The absence from the Bill of measures to implement the Neill committee's proposals to give tax relief to political donations of up to £500 is the single greatest departure by the Government from the report on which they have relied very heavily to justify implementation of most of the Bill. It was made plain earlier in the debate that the Government's principal objection was simply that a tax concession scheme would mean more money going to those parties which were able to raise the most money from donations of up to £500. I said in Committee that I shared that reservation. The tax concession scheme could have the opposite effect to the Neill committee's intention to create a more level playing field in our democracy.
  By these amendments the Government's principal objection is overcome. An equivalent sum of money to that which the Treasury estimates to be the cost of the tax concession scheme would be distributed instead by the electoral commission, not on the basis effectively of topping up the Inland Revenue donations of up to £500 but on the same basis as the commission distributes the policy development grants. With all-party agreement, the Bill already provides for policy development grants of up to £2 million per annum to be paid to the main parties in accordance with the specific recommendation of the Neill committee. It is not a huge step from the distribution of £2 million policy development grants to say that the commission should distribute up to a further £4 million in policy promotion grants. That figure could be varied to any level up to £4 million, which is the same cost as that estimated by the Treasury if the tax concession scheme was implemented.
  If this is an alternative to the tax concession scheme, as I believe it should be, the Conservative Party should not be able to object on the grounds of cost. The costs are the same as the tax concession scheme which that party advocates; indeed, the sums are similar to those currently claimed from the public purse by the Conservative Party for financing the activities of the so-called war room in Conservative Central Office and the Leader of the Opposition.
  The Government may also try to claim that £4 million is too much or is not the right priority, but: the sum is no more than they spent last year on promoting the fact that elections would take place for the London Mayor and Assembly. That figure is but one-hundredth of 1 per cent of the extra £43 billion which the Government repeatedly say is about to put into public services. If the argument is really about funding for schools and hospitals or paying for democracy, the Government should reconsider the £4 million per annum spent on their special advisers. I do not resent that expenditure because I am sure that the Government need that advice. We should recognise that democracy does not come free and that the Government already have a considerable role in paying for it. A little more government support is essential if we are to reduce the dangerous over-reliance of all the parties on a few millionaires. Faced with the options of the status quo or a tax concession scheme, I believe that this is the best way forward which will most certainly be recognised in time to come, if not immediately. I beg to move.
  Lord Mackay of Ardbrecknish: My Lords, I have listened with interest to the words of the noble Lord, Lord Rennard. The noble Lord appears to seek a compromise with the Government. I am opposed to the direct funding of political parties. There is a significant difference between the direct funding of political parties and tax relief. Clearly, the latter depends on how much financial support one receives from the electorate and one's supporters. That is a different issue from receiving financial help on the basis of the previous election, or the one before that. I understand that in Sweden one political party which has ceased to exist still gains funding because of the way that the system works. Clearly, that would not be possible if there was tax relief. While I admire, as always, the ingenuity of the noble Lord, I prefer tax relief, which was recommended by the Neill committee.
  Lord Bassam of Brighton: My Lords, the noble Lord, Lord Rennard, has been open and honest as ever about his party's support for a general system of state funding for political parties. These amendments provide for such funding to be made by means of a policy promotion grant. The amendments seek to ride on the back of the scheme for policy development grants recommended by the Neill committee and provided for in Clause 11 of the Bill. But there is no disguising the fact that policy promotion grants are of an altogether different character. These amendments provide for nothing less than a state subsidy of

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  £4 million per annum to help parties meet their election campaign costs. If these amendments were accepted the taxpayer would pay for the Liberal Democrat posters and newspaper advertisements at the next general election. I believe that there are more than a few people outside your Lordships' House who would find that a rather unattractive proposition.
  The noble Lord clearly sees the scheme of policy promotion grants as an improvement on the Official Opposition's proposals for tax relief for political donations, which we shall no doubt discuss further tomorrow. It could be argued that these amendments address some of the rougher edges of the tax relief scheme. But among the objections to such a scheme is that it would be expensive to administer relative to the benefit involved and it would benefit disproportionately those parties whose supporters were in a position to make donations of up to £500 or more. A system of policy development grants disbursed by the electoral commission would overcome those objections. There would be no administrative costs for the Inland Revenue or the political parties to worry about and any costs to the commission would be unlikely to be significant. Fairness in the allocation of the £4 million fund would be assured as the money would be distributed by, and in accordance with, the scheme recommended by the commission.
  Those advantages, however, do not do anything to address the fundamental point that a system of policy promotion grants would yet more clearly constitute state funding of political parties. No doubt there are solid public interest arguments for the disbursement of public money to help parties to fulfil their parliamentary functions or develop long-term policies. I do not believe, however, that the same kind of case can be made in relation to meeting campaigning costs. Nor does the proposal address the question of broadening political parties' sources of funding which was the rationale for the Neill committee's proposal in respect of tax relief. I believe that such an arrangement would provide political parties with even less incentive to encourage larger numbers of small donations. I put it to the House that a convincing case for any scheme providing for a general state subsidy for political parties has yet to be made out. I hope that the noble Lord will withdraw his amendment so that we can deal with another part of the main debate tomorrow.
  Lord McNally: My Lords, before the noble Lord sits down, is it not time that we stopped having this competition in humbug between the two Front Benches about state funding? The pass on state funding was sold almost a quarter of a century ago with the Short money.
  Lord Bassam of Brighton: Oh!
  Lord McNally: My Lords, the noble Lord lets out a groan from a sedentary position. What does he think Short money is other than state funding? Of course the pass was sold with the Short money intervention, and
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  it was intentionally sold. It fed money directly into the coffers of the political parties. At the moment we see the Conservatives using some money for Central Office and some for other purposes. It seems to me that the Neill committee missed a glaring open goal by not cutting through the mutual humbug and saying that state funding is not a matter of lifting the skirts as though one had seen a mouse but is something to be welcomed as far preferable to an over-reliance on the big donors. Yet once again both Front Benches have missed the opportunity.
  We will return to this matter because the tax concession is perhaps a worse second best. But for Ministers to condemn state funding as some great vice misses an opportunity. My noble friend is absolutely right. Within a decade, we shall be returning to this matter. The way the matter is dealt with in the Bill leaves in place all the temptation for abuse.
  Lord Bassam of Brighton: My Lords, the noble Lord invites a response from the way in which he made his point. I ask him this question in response. We do not often fall out over these matters, but does he think that the case that was revealed last week during the discussion before the Committee on Standards in Public Life of the Conservatives using £3.8 million of public money to fund the campaign bunker was the right use of public funds? Does he support that contention? That is the logic of the position being put forward by noble Lords on the Liberal Democrat Benches. I would seriously question whether that is right. It seems to me that in their admission last week that that is how some of the Short money had been used the Conservatives themselves were not entirely happy with what they had done and that they had gone to the whole trouble of asking advice as to whether they should be using the money in that way. That seemed to be accepting that that was an inappropriate use of Short funds. If that is the case, the argument being advanced by the noble Lords, Lord Rennard and Lord McNally, is somewhat shot through with holes.
  Lord McNally: My Lords, perhaps I may respond. I am not as shocked as some people about what the Conservatives were doing. The state funding that already exists displaces other funding to be used. We have always tried clever ways of funding. We have done it right from the beginning. We have done it with MPs' expenses and with other aspects of funding. We have always tried clever ways of doing it, often finessing it past taxpayers so they do not realise that some of these funds are going for political purposes. We have always said that it would be far better to give a block grant to political parties to use transparently at their discretion than to have all these rules and regulations which will add confusion and invite parties either to bend these artificial rules or to mistakenly bend them. However, it is an opportunity which the Government for their good reasons have fluffed, as the Labour government in 1974 fluffed it. As I said before, until the matter is faced up to, until we openly see the rationale of state funding of our political parties, we

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  will have to run the risk of the other sources of funding perverting and distorting the political system. But we have had this argument and we will have it again.
  Lord Rennard: My Lords, I thank the Minister for his earlier remarks and, in particular, for summarising so effectively the case for the amendments. He said that his only reservation or objection was that it may not he popular to use public funds to promote Liberal Party posters in a future election campaign. I fail to understand why a voter may object to paying for parties promoting their policies but is quite happy to pay for the research into those policies which will come from the policy development grants which the Government are happy to provide to the parties. Indeed, it is a wholly artificial distinction to say that you are prepared to use government money for policy development and not use government money to pay for the promotion of those policies. Once the Government have entered into the era of paying towards policy development, as they are about to do, that will allow the parties to free up resources for the promotion of those policies. We are dealing with an artificial divide.
  I listened with interest to the noble Lord, Lord Mackay. I failed to hear, unless he made a point I did not note, the fundamental distinction between the £4 million or so provided from the public purse—the so-called Short money—to Conservative Central Office for the payment of a press team and a war room to campaign for the Conservative Party and the kind of grants which I am suggesting would legitimately be used for parties to promote their own campaigning purposes. I fail to see the distinction.
  However, as at this stage I hear little support for my argument, I shall withdraw the amendment on the basis that what it proposes used to be Labour Party policy—I am sure that it will again be Labour Party policy—and that I believe it to be Conservative Party policy in practice, even if it is not said so openly at the moment. On that note, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 23 to 26 not moved.]
  Clause 12 [Education about electoral and democratic systems]:
  8.45 p.m.
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 27:
  Page 9, line 15, leave out paragraph (c).
  The noble Lord said: My Lords, we now come to Clause 12 of the Bill, to which I have tabled a number of amendments. We discussed these issues in Committee on 10th October and they were also discussed in another place. The issues concern the duties given to the commission about "public awareness". Indeed, the clause heading states:
  "Education about electoral and democratic systems".
  We are concerned, as we said in Committee and in another place, about some of the aspects of the duties given to the commission by the clause.
  On 10th October the noble Lord, Lord Shore, said:
  "Is it wise to hand over that responsibility"—
  he was referring to education—
  "to the electoral commission? I doubt it and I urge my noble friends to rethink our position on the matter.—[Official Report, 10/10/2000; col. 190.]
  The noble Lord summed up the position quite well. I should like to draw his words to the attention of his noble friend Lord Bassam. Perhaps I may also draw to his attention the powerful words of the noble Lord, Lord Neill, in the same debate. My recollection is that what he said was not warmly welcomed by the Government Front Bench, who seem happy to accept those parts of the deliberations of the noble Lord, Lord Neill, whether they be the report we are discussing or regarding last week's efforts, when it suits them but when it does not suit them and they do not want to listen they become rather irritated if he speaks. The noble Lord said:
  "My opinion is that it is a wholly inappropriate role to give to the electoral commission as we conceived it. I cannot see how it could carry out the duties conscientiously under Clause 12 without being drawn into political controversy …One has to think for only about two seconds about the role given to the commission to see that it is one which would get in the way of the other very serious obligations it has under other parts of the Bill".—[Official Report, 10/10/2000; col. 196".]
  The Government seem intent on keeping this clause. I have therefore tabled amendments to correct what I believe are the worst defects within it. Amendment No. 27 seeks to leave out paragraph (c) of subsection (1). At present the subsection reads:
  "The Commission shall promote public awareness of … the institutions of the European Union".
  Perhaps I may say that the institutions of the European Union seem perfectly capable of promoting themselves. Even the most neutral observer, which I would not pretend to be in this case, would think that to ask the commission to promote public awareness of the institutions of the European Union is likely to drag it at least into the margins of political debate, if not right into the mud of it. I believe that the inclusion of this duty is unnecessary. Worse than that, I think that it is wrong.
  The Minister could help me greatly here. In the debate on 10th October, the Minister stated:
  "People will be more inclined to vote if they believe that the body they are being asked to elect is relevant to them and will make a difference to the community in which they live. That applies as much to the European Parliament as it does to local councils. Without paragraphs (b) and (c) of subsection (l) … the commission's ability to make any meaningful impact on the level of participation in our democratic institutions will be severely constrained".—[Official Report, 10/10/00; col. 206]
  In his defence of these parts of the clause, the Minister referred only to the European Parliament and to democracy. If that was all that was stated in the Bill, I am not sure that I should have tabled these amendments. Explaining to the electorate the European Parliament and how it is elected would be totally consistent with explaining how the other place is elected, as well as the Scottish Parliament in "Scottish only" terms, the Welsh Assembly in Wales and the Northern Ireland Assembly in Northern

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  Ireland. It would be totally consistent, and I could at least understand that proposition. We decided, in Parliament, on the means to be used to elect the European Parliament. As the noble Lord will recall, it was an extremely complicated issue and a complex method was chosen which proved to be so difficult that in the end the electorate did not bother to turn out to vote in that European parliamentary election. Contrary to what the propagandists for proportional representation said would happen, when put to the test it failed to happen.
  I can quite understand the noble Lord's argument. The noble Lord said that, once Parliament had passed the Bill which meant that in this country the European Parliament would be elected using the list system and that the order of the list would be determined entirely by the party machinery, it was clear that any electoral commission should have a hand in explaining to the electorate what it needs to do. I do not know whether such a commission should be deeply involved in explaining the merits of that system over other systems proposed to noble Lords when we discussed the European Parliamentary Elections Bill, but I understand the argument that the commission is well placed to explain to the electorate the method eventually chosen by Parliament.
  However, that is not what is says in Clause 12(1)(c). It refers to,
  "the institutions of the European Union".
  That is a good deal wider than what we have been discussing. Perhaps the electoral commission would be used to explain the thinking of the European Commission. That might lead it into extremely dangerous territory. For that reason, I believe that this needs to be clarified. If the only institution being referred to here is the European Union's democratically elected European Parliament, that should be what it says in the Bill. That is the only institution which is democratically elected, other than perhaps the Council of Ministers, where at least the Ministers are democratically elected.
  The electoral commission should not have to get involved in arguments about the European Commission. If it did that, it might get involved in arguments currently raging as regards the number of Commissioners and whether countries such as the United Kingdom should continue to have two Commissioners where other, smaller countries have only one. One would not have to be on either side of the argument to recognise that this would present dangerous territory for the electoral commission without it going down exactly the kind of road against which the noble Lord, Lord Neill, warned your Lordships' House.
  I should like to know exactly what the noble Lord means by,
  "the institutions of the European Union".
  If he is referring only to the European Parliament, surely we should introduce at Third Reading an amendment to make that clear on the ground that legislation should say exactly what it means.
  Amendment No. 28 addresses the possibility that the commission could, or a grant made by the commission to another body could be used to, promote a type of devolved government in one area of the United Kingdom. Devolved regional government could be promoted in England, for example, because devolved government is already in place in Wales, Scotland and Northern Ireland. I do not think that the commission should be doing that; indeed, I do not think that any body which is in receipt of public money should do that. These are issues which need to be decided by politicians rather than by the electoral commission. Amendment No. 28 attempts to remove a pothole into which the commission could easily fall.
  I shall not speak to Amendments Nos. 29 and 30, because, in our enthusiasm to probe this clause, we have tabled two amendments which were decided in Committee. I apologise for that. I shall not speak to them at all.
  My noble friend Lord Norton of Louth has tabled Amendment No. 30A, which I might describe as the "nuclear option". His amendment has much to recommend it; indeed, I am sorry that I did not table it myself. Earlier I reminded noble Lords of the words of the noble Lords, Lord Shore and Lord Neill. Perhaps I may end by quoting from the report of the Neill committee at paragraph 11.4:
  "We would only make the obvious point that the Election Commission cannot, as some of our witnesses seem to believe, solve all problems and be a panacea for all ills. It is tempting, but not sensible, to say whenever in difficulty, 'Leave it to the Commission'. That is an approach we have sought to avoid in this report. Government, Parliament and others have to accept their responsibilities".
  We are concerned to ensure that the commission is independent and above the political debate. That was the concern of the Neill committee and we could have no clearer indication of that than the words of the noble Lord, Lord Neill, and his committee's report. I hope that the Government will address the issues that I have raised and, no doubt, that others will raise later in this debate. I must say that the more that I read this clause, the more I am tempted to vote in favour of the amendment tabled by my noble friend Lord Norton of Louth. I beg to move.
  Lord Norton of Louth: My Lords, I wish to speak to my Amendment No. 30A, which has been grouped with those tabled in the name of my noble friend. In Committee we debated at some length the wording of Clause 12. Various objections were raised to the provisions that it contains. I sought then to amend the wording of subsections (1) and (2) while my noble friend Lord Mackay of Ardbrecknish sought to delete paragraph (c) of subsection (1). The Government resisted all the amendments that were tabled.
  At the time of the debate in Committee, my noble friend Lady Carnegy of Lour said that, having heard the contributions made by my noble friends Lord

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  Cranborne and Lord Mackay of Ardbrecknish, and that of the noble Lord, Lord Neill of Bladen, she felt that it would be better,
  "to leave the clause out of the Bill and to arrange for the education of people in these matters to be done by another body".—[Official Report, 10;10/00; col. 198.]
  That is the conclusion that I have reached. Given that the Government have not accepted the amendments that would have improved the clause and given the choice between the clause as it stands and no clause, think that we should opt for no clause at all.
  In Committee, the Minister made no convincing case for the clause as it stands. Much of the discussion that took place was tangential to the issue. Several noble Lords seemed to think that the amendments were prompted by distrust of educating citizens about politics. As I pointed out at the time—several times, in fact—the need for political education was not at issue. My professional life has been spent educating people about politics. I support the teaching of citizenship in schools. Where politics is taught at A-level, it tends to be taught well. It is taught well because those teaching it are trained in the subject and are keen to impart knowledge. Teaching politics entails informing people about politics and, in schools and universities, teaching students how to think, not what to think.
  As far as I am concerned, the principle is not at issue. What does concern me is how to give effect to the principle. In Committee, I argued that the electoral commission was not the body to teach people about systems of government, be it local, national or supranational. It is not equipped to undertake the task, either directly or as an enabling agency. Several noble Lords, including the noble Lord, Lord Neill, argued in Committee that seeking to undertake such a role may drag the commission into the realms of controversy. It would be covering topics that are contentious. That may be so, but my objection is more fundamental. The clause confers on the commission tasks that do not fall within its competence.
  The competence of the commission encompasses the registration and financing of political parties and the conduct of elections and referendums. That is clear from the Long Title and from the provisions of Clauses 4 and 5. In respect of political parties, it is, in effect, a regulatory body. In respect of elections and referendums, it is a regulatory and an advisory body. There is nothing in the Bill, in terms of the composition of the commission or in the specific tasks that are adumbrated in Clauses 4 and 5, that establishes it as an educational body.
  I was prepared in Committee to go some way to meet the Government by retaining paragraph (a) of subsection (1), allowing the commission to promote public awareness of electoral systems, at least subject to some amendment. The Government were not prepared to accept that, arguing the case for retaining the clause as it stood. The arguments advanced for the clause were not persuasive.
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  In Committee, the Minister explained what the clause sought to achieve. As I say, I have no objection to the objective of the clause. The Minister argued that the commission was an appropriate body to meet that objective. He said that the commission should,
  "be empowered not only to promote understanding of the mechanics of the electoral systems used in this country, but also to promote awareness of the value of voting".—[Official Report, 10/10/00; col. 206.]
  The problem is that the commission is not qualified to undertake that particular task. The Minister seemed to think that because the commission was a body specialising in electoral matters, it was therefore qualified to educate people—or to buy in bodies to educate people—about electoral systems and, as electoral systems did not exist in a vacuum, that it was also qualified to teach them about political systems generally. I do not think that I am doing the Minister an injustice by expressing it thus.
  By so arguing, the Minister was undermining the importance of that which he wants to achieve—that is, political education. If we believe in educating citizens about political processes, we need to undertake the task in a serious way. We do that by creating or drawing on those bodies that have the professional training and capacity to undertake the task. We do not achieve it by tacking it on to the functions of a body that is established for a completely different purpose. This function jars with those listed in Clauses 4 and 5.
  I argued in Committee that it fell outwith the Long Title of the Bill. My noble friend Lord Cranborne raised the point and put various questions to the Minister as to its compatibility with the Long Title. The Minister said in response that he thought that the Long Title was adequate. He went on:
  "Functions are, after all, part and parcel of the establishment of the commission, and the Long Title refers to its establishment".—[Official Report, 10/10/00; col. 207.]
  I do not think that the establishment of the commission can be read as independent of what follows in the Long Title. Clauses 4 and 5 adumbrate the functions that are clearly compatible with the Long Title and I think it appropriate to avoid doubt by sticking exclusively to those functions.
  In my view, Clause 12 does not fit with the remaining provisions of the Bill. As my noble friend mentioned, it confers a function that was not envisaged by the Neill committee. That point was made by the noble Lord, Lord Neill, in Committee. Indeed, the noble Lord expressed the personal view, to which my noble friend Lord Mackay has referred, that it was,
  "a wholly inappropriate role to give to the electoral commission as we [the Neill committee] conceived it".—[Official Report, 10/10/00; col. 196.]
  This is not then something to which the Government have signed up as part of the recommendations made by the Neill committee. It is an initiative of the Government—a well meaning initiative, but one that I believe is fundamentally flawed.
  If we want to educate citizens about electoral processes, we should address the issue separately from this Bill. It is too serious an issue to be dealt with by

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  some incidental addition to the recommendations of the Neill committee. The issue of teaching citizenship in schools was addressed by the Crick commission, of which my noble friend Lord Baker of Dorking was a distinguished member. This issue needs to be considered in a similarly serious, and constructive, manner.
  For all these reasons, I believe that Clause 12 is inappropriate. It should be taken out.
  Lord Hodgson of Astley Abbotts: My Lords, I find myself moved to join the root-and-branch option that has been so powerfully argued by my noble friend. I notice that page 9 of the Bill contains the words "public awareness". That is a weasel set of words—to which no one can object—beloved by the Civil Service.
  As my noble friend Lord Mackay said, this is a matter of education. As has been said already, education is a very important and vital task, but it has nothing to do with regulation. The danger is that once education and regulation are put into the same body, various inherent conflicts of interest come to the surface.
  Two immediately spring to mind. The first, is that the commission will necessarily have limited resources, and the disposition of those resources will have to be decided upon and divided between education and regulation. We were debating earlier how regulatory matters are likely to be fast moving and require instantaneous decisions; in such circumstances, if resources have been devoted to education with a lack of resources being devoted to regulation, those of our fellow citizens who are concerned with the undertaking of elections may well find themselves unable quickly to get the necessary advice and support.
  The second immediate conflict of interest is that between the promotion of change and the maintenance of the status quo. As we begin the educational process, to what extent will this body be responsible for encouraging people to think about the options and for encouraging the debate on electoral reform, and to what extent is its duty to uphold the system as it presently stands?
  I feel strongly about this issue. Earlier in the summer the Financial Services and Markets Bill passed through your Lordships' House. I am a member of the board of the Securities and Futures Authority and we are about to be subsumed into the new FSA. When that Bill was passed, tacked on to it was an educational requirement. That has already begun to make itself felt in the way in which the SFA has operated. Resources are now being moved inexorably towards educating the public at the expense of some of the disciplinary and enforcement procedures of that authority. The manpower and financial resources devoted to the market awareness side have increased quite considerably in the budget and are now under way within the FSA. I can foresee similar difficulties and problems with this authority. I see no way of avoiding
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  it. Therefore, I believe that my noble friend Lord Norton has provided the only sensible option on this occasion.
  Baroness Gould of Potternewton: My Lords, I am slightly puzzled at the venom with which Clause 12 is being opposed. I find it difficult to accept. Two of the major electoral commissions—those of Australia and New Zealand, both of which I have visited—see it as a major part of their role to provide education for the public and to create public awareness. Their role is similar to that of the electoral commission as proposed in the Bill. Therefore, if it is suitable for them, I cannot see why it would be unsuitable for the electoral commission here.
  There seems to be a fear that the electoral commission will examine matters such as electoral reform and that it will advocate different electoral systems. I thought that we had covered that point in Committee when we discussed the whole question of "pending". I believe my noble friend said that "pending" referred to arrangements which are on the statute book but which have not yet come into force. That cannot, therefore, mean looking at a future electoral system for the House of Commons. I believe that is the fear behind objections to this clause.
  I have a slight problem. The noble Lord, Lord Norton, is rightly adamant about the need for political education. The noble Lord devotes his life to that. The Crick report has established the principle of citizenship in schools. But a whole group of people have not received such teaching, either because it did not take place at university or because the teaching of citizenship was not allowed in school for a long period of time. Those people are electors and they should be given the opportunity to find out more about the way in which the country and the administration operate.
  The noble Lord, Lord Mackay of Ardbrecknish, has perhaps accepted that there is a role for the commission in that regard—although he may withdraw his amendment in favour of that tabled by the noble Lord, Lord Norton. Again, I find it strange specifically to rule out the question of Europe. It rather implies that this country has no connection with Europe. Whether we like it or not, and whether we are pro-Europe or anti-Europe, it is a fact of life. We have connections with Europe and they will continue. Any voter education programme should explain the role of this Parliament vis-à-vis the institutions of the European Union as well as explaining the mechanics of voting.
  The noble Lord, Lord Mackay, asks what is meant by "institutions". To me, it means not what the Commission says, but how it works—how it functions, what its relationship is with the European Parliament, and how that functions. That is what we are talking about when we talk about the "institutions" of Europe. I do not accept that information cannot be provided factually. With the greatest respect, to say so is absolute nonsense. So many commissions, including the Neill commission, have been impartial in their consideration. I cannot see why it is not possible for

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  them to explain the institutions of Europe or of this country with the same impartiality. I find the opposite argument very difficult to accept.
  Political education is essential for a healthy democracy. I believe that the previous government accepted that when, for instance, they set up the Westminster Foundation for Democracy in 1992. That was designed to provide advice to institutions and electors overseas. Many of us took part in Westminster Foundation delegations, particularly to the new democracies in eastern Europe doing exactly that, in an impartial and, we hope, professional way. I believe that the electoral commission will be independent, just as the Westminster Foundation for Democracy is independent, and that it should be able to perform that role. I can see no reason why it should not. It is right that any money allocated, whether it is spent by the commission itself or allocated to other bodies, should be used only for education purposes and not for propaganda.
  9.15 p.m.
  Viscount Cranborne: My Lords, I am glad, once again, to follow the noble Baroness, Lady Gould. I believe we had similar exchanges in Committee on this very clause. I am also extremely glad that the noble Baroness mentioned the Westminster Foundation—a body that she acknowledges was set up by the previous government and one that I was privileged to serve on for a very short time before I was translated to this House in a ministerial capacity. Unfortunately, therefore, I was not able to experience the good work undertaken by the foundation for very long. However, I certainly took to heart the message that the foundation was established to propagate, as indeed did the noble Baroness.
  During my time as Leader of the House, I tried in a small way to contribute towards the efforts made by this place, especially in conjunction with another place, to ensure a greater knowledge among the young of how Parliamentand our political system works—or, more accurately, I sometimes think, does not work. When this clause was debated in Committee, I was very struck by the approach taken by a number of speakers, although, I hasten to add, I do not believe that the noble Baroness, Lady Gould, was one of them. On realising that the Government's argument was perhaps rather weaker than they would like, they immediately fastened on to a few of the objections that some of us had raised and accused us of wanting to keep the electorate in ignorance. Indeed, I believe that my noble friend Lord Norton referred to this during the course of his earlier remarks. I do not resent that; it is a perfectly usual political ploy. Those of us who have been around for a bit recognise it for what it is: if you cannot answer the arguments set up against you, you invent one and attribute it to your opponents and then try to ridicule them on that basis.
  As my noble friend said, this is not about a division in your Lordships' House as regards who is in favour of political education and who is not. All of us recognise that this is an area of great importance, especially at a time when people are increasingly
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  uninterested in politics and seem to be unaware of the system that protects, or should protect, their liberties. I hope that we can lay that particular canard to rest. I am sure that the Minister will not be tempted to revive it because it will not fly—it is a canard imaginaire, if ever there was one.
  The truth of the matter was, as usual, immediately spotted by my noble friend Lord Norton. This commission will consist of very great men and women. As we have observed during the passage of the Bill through this House, they will be selected for their enormous wisdom and not, perhaps, for their recent experience at the coalface of politics. We have decided that that would not be a suitable immediate experience for them. But, nevertheless, they will be selected as very great and good men and women of unimpeachable character, neutrality, judgment and wisdom. Of course, they must also be unpartisan and neutral. We are asking them to undertake an extremely difficult job—that is, before we get to the provisions in Clause 12.
  Clearly the commission's job will be extremely complex and difficult—at least, the Government find it so. Indeed, they would not have felt the need to rewrite such a very large proportion of the Bill if that task were simple and easy to define. If it is difficult to define and to lay out in this enormous and weighty piece of paper, I suspect that the task we are asking the commission to undertake will be extremely difficult in itself.
  In Clause 12 we are doing the classic piece of mixing apples and oranges. We have a set of apples into which, suddenly, we have injected an orange; in other words, we are asking the commission to do something completely different from anything else contained in the Bill. As my noble friend explained, we had an argument about the Long Title to the Bill. I do not intend to go into that in detail. However, no matter what the Minister said, it really stretches the imagination a little to suggest that the Long Title in any way covers Clause 12. I can only suppose that the phase, "for connected purposes" is alleged to cover Clause 12. I am not sure that that is exactly the same sort of phraseology as the gracious Speech at the opening of Parliament when everything including the kitchen sink can be put in under the phrase,
  "other measures will be laid before you".
  We are talking about a specific piece of legislation in which highly complex matters of a fairly clear kind are being proposed. What we are now proposing to do is to graft on an entirely new function that really does not bear any relationship to it.
  If I correctly understood the noble Baroness, Lady Gould, she suggested that all the commission had to do was to describe precisely the facts. That is an extremely seductive phrase. The noble Baroness always seems entirely reasonable, as indeed she is known to be. But we are talking here about some of the most contentious issues in modern day British politics, voting systems and constitutional arrangements which this Government have brought to the very forefront of political debate, and, of course, our own favourite

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  great European home, the European Union. If the commission is to venture to describe factually electoral systems and the systems of the European Union, does not our experience suggest that the facts themselves are a matter of subjective judgment?
  Baroness Gould of Potternewton: My Lords, I have lectured on electoral systems throughout the world. I do not think that I indulged in any subjective analysis; I just explained them.
  Viscount Cranborne: My Lords, the noble Baroness gets her own back for when I explained that I thought that when I stood for another place my constituents in south Dorset did not need much explanation of our present electoral system because they knew perfectly well that if I obtained more votes than anyone else I would become their MP.
  One of the extraordinary features of the love of complexity of this Government, not only in matters of taxation but also in matters constitutional, is that because they are addicted to vastly complex systems we have to put in place all kinds of measures to try to explain how they work. My contention is that this is not the place to do it because by asking the commission to undertake that task it is perfectly plain that we are venturing into ground where it would fear to tread. As my noble friend Lord Mackay made perfectly clear, if the noble Lord, Lord Neill, is anything to go by, certainly that kind of member of the great and good would run a mile before undertaking anything so potentially contentious.
  I suspect that the European Union is a good example of that. After all, as my noble friend Lord Mackay pointed out, the European Union spends an enormous amount of what is ultimately our money promoting the European Union. It promotes it, in its own view, entirely neutrally. It says that all it is doing is explaining the facts. As someone who is highly sceptical of its version of the facts, all I can say is that I deeply resent my money being spent by myrmidons of the European Union in Queen Anne Street putting out what they regard as an unspun fact in such a matter that I feel that my money is being filched from me and that I am being asked to pay for an extraordinarily biased spin.
  The facts with regard to the European Union are highly contentious. Just to give one example, we are constantly told that there is no question that the new Euro corps will be a European army. But we also know that we were told back in 1975—I studied the election literature the other day, which only goes to prove this—that if we voted yes, we would only join a free trade area. Yet somehow that fact has been transmogrified into something vastly more complex and more integrated than that.
  I could go on but I shall not. It seems to me that we are asking the commission in one breath in all the other clauses of the Bill to be Olympian, neutral, unpartisan and to act as the great platonic guardians with which we increasingly festoon our constitutional arrangements in this country. However, in the same
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  breath, in Clause 12, we are not tempting but obliging it to venture ever more into areas in which it will find it increasingly difficult to maintain its neutrality.
  If the Government's intention is to ensure that the commission is launched with the seeds if not of its own destruction then at least of the destruction of its reputation, I can think of no better way than Clause 12. Although, as always, I greatly admire the ingenuity of my noble friend Lord Mackay, in trying to improve the clause with Amendments Nos. 27 to 30, I fear that its purpose is so flawed that the only logical conclusion is to delete it, as suggested by my noble friend Lord Norton. Given the choice, I should support Amendment No. 30A.
  Lord Wedderburn of Charlton: My Lords, as we are on Report, I have to make my point before the Minister speaks. I should like to return to the micro level of the amendment. It is all very well the noble Viscount, Lord Cranborne, talking about a teacher exhibiting a point of view, but anybody in the institution in which I have taught for the past 36 years who does not say what is his point of view does not last a week.
  Viscount Cranborne: My Lords, the noble Lord has made my point for me. I should have been very disappointed as an undergraduate if my teachers—poor things, having to try to teach me—had not put across a point of view. One expects that, although very often one is stimulated to reject that point of view. In that case, why ask an allegedly neutral body to do what we all expect teachers to do?
  Lord Wedderburn of Charlton: My Lords, that is exactly the point. By setting out one's point of view at the start, one has a chance of giving what the noble Viscount might call a neutral view of the problem. However, let me return to my micro point.
  The noble Lord, Lord Mackay, suggested that it might be better if, in Clause 12(1)(c),
  "the institutions of the European Union",
  were replaced with a reference to the electoral system and functions of the European Parliament. On that as on all other issues relating to the European Union, one should take a pragmatic view. It is impossible to set out the system of government of the European Parliament without describing its relationship with the other institutions. I might prefer different drafting in the Bill, but what the noble Lord suggests is impossible, because it would not be honest with the audience. It would be essential to explain the place of the Commission—particularly now, with the dual channel—and the place of the Council. That is a small point, but I hope that the noble Lord will consider it.
  Lord Lamont of Lerwick: My Lords, I support the targeted amendments of my noble friend Lord Mackay, but if they are not acceptable, I would prefer to go along the road suggested by the noble Lord, Lord Norton of Louth, with the support of the noble Viscount, Lord Cranborne. My noble friend Lord Hodgson identified the basic flaw in the clause. It is a

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  mistake to ask a regulator to combine its regulatory role with an educative function. It is as though we were to ask the noble Lord, Lord Neill, simultaneously to rule on the way in which Members of this House conduct themselves and declare their interests and also to perform some educational function about the role of the House of Lords or lobbying in Parliament. It might be as though we were to ask the Financial Services Authority to propagandise about the importance of the financial services industry for this country.
  The reason that that is a mistake is because it is a confusion of the main purpose for which the body has been set up. It could only be a distraction and mean that the commission would do its job less effectively. The noble Baroness, Lady Gould, made a very interesting speech. She said—
  Lord Bassam of Brighton: My Lords, is it the core of the noble Lord's argument that regulators should not conduct any form of education or advice for those whom they seek to regulate? If that is the case, there are many regulatory bodies which carry out profoundly important matters of education to achieve a degree of regulation and to make it easier.
  9.30 p.m.
  Lord Lamont of Lerwick: My Lords, it is one thing for the Financial Services Authority to explain to practitioners in the City of London how the rules apply, why conflicts of interest arise and why certain rules are necessary. That is completely different from educating everyone in the country from John O'Groats to Land's End about the City of London. The Minister has given a totally inappropriate analogy.
  Baroness Gould of Potternewton: My Lords, I thank the noble Lord for giving way. I declare an interest as a member of a regulatory body. We see as one of our functions to be able to educate the electors to make sure that they do not face problems in the future if they have them now. I cannot see that there is a divorce between a regulatory body and its educational role.
  Lord Lamont of Lerwick: My Lords, I am not sure to which regulatory body the noble Baroness refers. But, as I have just said, there is a difference between educating the people immediately affected by regulation and trying to educate the whole country. The regulatory commission is essentially a regulator of political parties. It might be legitimate to say that it should explain to political parties what its purpose is and why this or that rule is necessary. That is completely different from taking on the huge burden of educating the whole country, not just about what it is doing but about all kinds of very difficult and contentious political questions.
  In her interesting speech, the noble Baroness said that they do that in Australia so why should we not do it here? It has always seemed to me that one of the worst arguments for extending the role of government in any respect is merely to say that because something
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  happens elsewhere, it ought to happen here. As a legislature it is our job to probe why an extension of functions is necessary and how far that should go.
  I would be more convinced of the case that has been put forward and more reassured that this is not going to be a distraction from the real purpose of the commission if we were to be told something about the scale of the task to be attempted. We are vaguely told that it is to educate the public. What does that mean? How much money is going to be spent? I know the Minister will be unable to answer that question. How many extra staff will be needed and what proportion of the commission's time is to be spent on education?
  If we are to be persuaded that this measure is remotely appropriate, it would be sensible to have some idea of the scale on which this very ambitious task is to be attempted. Otherwise it makes no sense to take away money that might have been spent on the education budget. I would need a lot of persuading that money spent on educating people about the institutions of this country would not he better spent in schools. How much is to be taken away from the education budget if this new provision is competing with that budget?
  The noble Baroness made an interesting point. She said that the teaching of civics had grown up only relatively recently in this country. One of its purposes might be to reach out to that part of the public that had not had the benefit of the increase in civics education in recent years. That is all right, but how is the commission to do it? By what method is it going to reach out to every household in the land? By what methods will it communicate?
  In the absence of, I submit, very reasonable questions of that kind, the whole purpose seems ill-focused, ill-thought out and in conflict with what is a very difficult job. I believe that this is a terrible distraction for the commission. Notwithstanding the interesting remarks of the noble Baroness, Lady Gould, I believe that it is a duplication of what is happening elsewhere in the system. That is why we have an education budget and adult education courses. We all know that many questions relating to the validity of, or alternatives to, our electoral system are discussed endlessly in O-levels, A-levels and in politics courses in universities.
  The noble Baroness wondered why there was so much, as she put it, venom attached to this Bill. The reasons why I believe there to be so much anxiety, rather than venom, in relation to this issue are those given by my noble friend Lord Cranborne; that is, a distrust that these matters will be wholly dispassionately and factually discussed. When my son was studying for his A-levels, inevitably he had many questions about alternative electoral systems. He once asked me what the arguments were in favour of the first-past-the-post, single majority system. To the best of my ability I attempted to explain the issue to him and dealt with the inevitable questions about fairness. At the end of our discussion, he said to me, "Well, I think I'll aim off what you said for the benefit of the examiners". I am sure that for many reasons he was

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  right to do that. We know that certain questions are not simply factual and that certain arguments will not be resolved without resort to debate about different and competing values.
  I agree with the noble Baroness that it is perfectly legitimate to argue that political education in this country should extend to an understanding of the institutions of the European Union. Of course that is right. One cannot separate the European Parliament from other institutions. I have no problem with the idea that pupils in schools or elsewhere in the educational system will be told about the institutions of the European Union, whatever reservations I may have about their effectiveness, their cost and their functioning.
  However, as my noble friend Lord Cranborne said, one worries about how that educational task will be carried out. Will it be carried out factually? Will it be totally divorced from the massive propaganda effort that we already have in this country from the European Union via its office not far from this House where it spends huge amounts of money on so-called factual information? It spends money on such facts as (it is alleged) millions of jobs depend upon the European Union—it took the National Institute of Economic and Social Research to show that that was a totally bogus claim. It also put forward the very arguable claim that the European Union has preserved peace in Europe.
  Therefore, I believe that it is doubtful that we shall receive purely factual information. We have not heard anything about the body's funding, the amount of money involved or where the money will come from. I should like to be assured by the Minister that it will not be simply a distributor of propaganda from the EU and its institutions.
  Lastly, I am grateful to the noble Baroness, Lady Gould, for clarifying and reassuring me about the word "pending". I should be grateful if the Minister would confirm that for my benefit.
  Lord McNally: My Lords, first, I claim one piece of consistency throughout the deliberations on this Bill. I have argued constantly that the Neill committee is not the last word on these matters and that it would be called in aid when one side agreed with it but that, when that was not the case, the committee would be quietly forgotten. As I said before, I believe that some of the work carried out by the Neill committee was excellent. It provided some good grounding for this Bill and for other legislation. However, I also think that it missed some very open goals. I had hoped to get that speech out during my noble friend's absence but I see he has crept back.
  I also think that the noble Baroness, Lady Gould, is absolutely right. Behind some of the silky speeches we have heard this evening are the darker fears that haunt certain Members on the Conservative Benches. One of the hobgoblins they fear is that this clause is a cunning device to allow future campaigns on Europe and proportional representation. That is why every so
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  often during the speeches there is a sudden, swift right turn into a good old piece of Euro-bashing. I do not think that there is in this clause any such intent or any possible use of the clause for such a purpose.
  What has run through statements on both sides is an acceptance of what I would describe as a deficiency in civic education in this country, which in any democracy, becomes a threat to that democracy. It is an interesting thought that probably among the best civically-educated generation were the troops in the Second World War. It has often been said that the Labour landslide of 1945 had more to do with the Army Education Corps than almost any other single body. It made troops aware of their rights and responsibilities.
  I also think that the noble Lord, Lord Norton of Louth, and the noble Viscount, Lord Cranborne, came through with arguments which are often used to resist an idea—"Well, it's a good idea but not in this Bill; not in this way, not here, not now". Then, if that does not work, try, "Not by these people: we like these people and we do not want to burden them with too much work". As I say, they are silky excuses for inaction but they are dodging the real issue. I shall save the Minister making the point if I say that so far as I am concerned these are Conservative "ignorance-is-bliss" amendments. On constitutional reform, the noble Viscount, Lord Cranborne, made the point that this—
  Lord Norton of Louth: My Lords, will the noble Lord give way? I hear what he says and should be grateful if he could identify at what point I fell foul of any of the objections he claims. I am all in favour of action this day; I am in favour of educating all the electors referred to by the noble Baroness; and, if the noble Lord wishes, I could even recommend the books that I think all should read—but modesty forbids. I believe that the arguments can be put in a balanced way, even though one might express a conclusion at the end. My point is that I am not sure that this body has the relevant qualifications. I want its work to be done by people even better qualified, in a way that this commission is not.
  Lord McNally: My Lords, I heard the noble Lord's speech and began to think I had not heard one like that since the AEWU tore up its rulebook. The noble Lord seemed to be arguing that only professors of politics were suitable for imparting this wisdom to the public at large, whereas, as we know, a commission like this would acquire an expertise which would fully enable it to do this job.
  I do not have the fears that have been expressed from these Benches. It is a role which is undoubtedly additional to the main purposes but is in no way contradictory to them. Let us be under no illusion. Perhaps I may say, in answer to the noble Lord, Lord Norton of Louth, that just as, if the commission does the work with the EU, it should not be done, that is way beyond its powers; if the EU does it, it is a sinister operation from Storey's Gate. Let us make no bones about it. If the Government brought forward a

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  separate Bill with a separate body to do that work, some of the same speeches would express the same suspicions.
  I see no reason why Clause 12 should not be adopted and the responsibilities that it gives the commission be carried out with neutrality and independence. Perhaps I may give some advice to the noble Lord, Lord Mackay. He is obviously like one of those guys who wander into a fight in a bar and tries to reason with the two sides. If I were him, I would get out of the way. Let us test whether or not we want Clause 12. We certainly want it.
  9.45 p.m.
  Lord Bassam of Brighton: My Lords, this has been a good and hugely entertaining debate, which I have enjoyed immensely. The issues are those on which we have had a "knock about" before. It seems to me that we have before us a choice between the Exocet and nuclear options. I suppose I am rather tempted to agree with the noble Lord, Lord McNally. Perhaps if Conservative Lords opposite really believe in the strength of their argument on the nuclear option, they should test the opinion of the House at some point—perhaps not this evening—and be honest about it. It seems to me that perhaps that is the right way forward.
  This is an important function for the commission to have and to hold. Let us think about the turnout in Westminster by-elections, some of which are to be held on Thursday; the turnout in local government elections; and the turnout in European parliamentary elections. If we are trying to strengthen the roots of democracy, it must be in all our interests to ensure that we deal with ignorance and lack of knowledge and understanding of political systems.
  We remain convinced that this is a proper function for an independent electoral commission. I believe that the noble Baroness, Lady Gould, made reference to the Australian and New Zealand commissions, which undertake this work properly. It does not seem to compromise their function. I do not accept that this is a dangerous task to give to an electoral commission. I remember when we debated the Representation of the People Act earlier in the year that noble Lords opposite made the argument and put the case for the commission having a far wider remit than the narrow role which some of them seem to have been tempted into suggesting today. They suggested that it should carry out research and development work. That seems to sit side by side with much of this important work. I do not hear a convincing argument from the Benches opposite against us ensuring that the commission can carry out such work.
  The hobgoblins and sinister plots have been conjured up by noble Lords opposite to argue against an independent electoral commission conducting educational programmes. Perhaps I may ask the question: if the commission does not do such work, precisely what sort of body would be appropriate to carry it out? What would be its composition? How would we set it out? How would it relate to the work of the electoral commission? I have not heard any such
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  arguments put convincingly this evening. I listened carefully to the comments made by the noble Lord, Lord Norton of Louth. I could foresee a snatch squad of armed Lords Norton of Louth coming forward professing wisdom in all our schools and places of education, knowledge and wisdom. Perhaps I might even be tempted to trust an armed snatch squad of Lords Norton of Louth doing precisely that work. I believe that most people would benefit from it. But how would that other body be regulated and organised to carry out that work? It seems to me that the work c f the commission is precisely that which should be allied to the important educational role.
  I am entirely with noble Lords opposite when they seek to constrain what the body might do to describing the mechanics and functions of and ways in which bodies such as the European Parliament or systems of election might work without loading that education in some way to add a preferential line of argument to one system or another. That seems to me to be entirely right and proper. These matters must be focused on education and nothing else.
  The idea that the commission itself might be a vehicle to promote public participation in elections simply by talking up the grand European project or promoting the euro is the stuff of fantasy. If it talks about the European Union, it will not talk about the euro or anything else which advances one side as opposed to the other.
  Lord Mackay of Ardbrecknish: My Lords, I thank the Minister for giving way. Perhaps he will list what it is he understands the commission should interpret as,
  "the institutions of the European Union".
  Lord Bassam of Brighton: My Lords, the European Parliament, the Council of Ministers, perhaps the work of the Commission. Those seem to be relevant to consideration of what European institutions might be. No doubt I could come up with a longer list if given time. But the mechanical, functioning, working parts of the institutions of the European Union ought to be known to the general public, particularly if they are involved in an election about them. I am sure the noble Lord will accept that, if we are seeking to provide wider knowledge about political institutions in this country, we might want to run through their mechanical parts. That seems to be entirely relevant.
  Amendment No. 28 would require that any promotional campaign undertaken by the commission in one part of the United Kingdom should not concern itself with electoral arrangements in place confined exclusively to another part of the United Kingdom. I know that the noble Lord thinks this is all about softening up the electorate for a referendum on the voting system—that was certainly the argument put forward by the noble Lord, Lord Hodgson. This point was raised in Committee and I replied then that I thought it was a point on which the commission would wish to tread extremely carefully.
  Having said that, I must again stress that the point of the provisions set out in the clause is not to encourage the commission to proselytise about the

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  merits of particular arrangements. It will simply be concerned with promoting awareness of its existence and purpose. To that extent it would be wrong for material circulated by the commission in Scotland, let alone anywhere else, to dwell on the advantages of the additional member system.
  Lord Lamont of Lerwick: My Lords, is the Minister intending to come to the questions asked about giving us a rough idea of the scale of operations, the amount of money envisaged and the amount of staff involved in this educational effort?
  Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for posing the question again and reminding me of the point. If I do not cover it in my concluding comments now, I shall advise the noble Lord in writing of the approximate thinking of the Government and share that with other Members of your Lordships' House.
  It seems to me to be taking matters a little bit far to require the commission to prepare different leaflets for England, Scotland, Wales and Northern Ireland. That suggestion has the flavour of a Soviet-style news blackout. That a citizen living in one part of the United Kingdom might learn about the diversity of systems of government which exist as a result of devolution seems to me, generally speaking, to be rather a good idea.
  The noble Lord, Lord Lamont, seemed to have difficulty accepting the point that regulators might carry out some functional educational role. I made quite a long list—Oftel, Ofsted, Ofgas, Ofwat (I was tempted to say Ofrail but thought it inappropriate), the Financial Services Commission, the Health and Safety Commission—of bodies which have to involve themselves as regulatory bodies in some form of education or another. Nobody says that that is irrelevant; that it is not appropriate or proper.
  It seems to me that regulatory bodies will, from time to time, need to undertake educational work. Of course, this commission has a broader remit. But properly regulated educational activity by the commission would be of benefit and we might gather reassurance from the fact that a well-organised and regulated body like this which is involved in regulatory work is carrying out such educational functions.
  Lord Lamont of Lerwick: My Lords, the Minister gave the example of Oftel. Would he say what educational function it has other than to telecommunications operators who are directly affected? What wider educational function does Oftel perform?
  Lord Bassam of Brighton: My Lords, no doubt Oftel determines what information it publishes and why and no doubt most of it is directed at those in the business. However, it has a wider role and I am sure undertakes to produce newsletters and information about its activities which are of greater and wider benefit. I am sure that the same will apply to Ofwat and the Health
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  and Safety Commission. Without a wider knowledge of their regulatory role, the public are not so well protected.
  Lord Norton of Louth: My Lords, I thank the Minister for giving way and I appreciate that he has been interrupted several times. He spoke of the education in which the regulatory bodies engage, but surely they are educating people in what they are doing and can deliver. That is separate from the task which is being given to this body.
  Lord Bassam of Brighton: My Lords, the point I am trying to make is that part of being a regulatory body is the function of advising, informing and educating. The noble Lord, Lord Lamont, appeared to be saying that it was not the business of regulators to become involved in advising, informing and educating. I do not accept that, which is why I provided him with the list.
  The breadth of the debate does your Lordships' House great credit. It has been useful and interesting and perhaps has told us more about where noble Lords opposite are coming from; they see a narrower role for the commission, while we see a broader but nevertheless properly circumscribed one.
  I invite your Lordships to reject the amendment. However, I want first to answer the question asked by the noble Lord, Lord Lamont, about the costs and functions of activities. Clause 12(6) provides that the amount spent on the educational function by the commission shall not exceed the sum specified by order made by the Secretary of State with the consent of the Treasury. The funding of that function will therefore be ring-fenced from the commission's general budget. I believe that I gave that answer previously. The sum will not be appreciably more than is spent currently by the Home Office on voter registration and postal voting arrangements at general elections. Perhaps such a bench-mark will help the noble Lord.
  The noble Lord also asked about the term "pending". As I explained previously, "pending" means an electoral system that has been approved by Parliament. For example, the system of elections for the Greater London Authority was pending once the GLA Bill received Royal Assent. I refer the noble Lord to Clause 12(2). I am sure that that is consistent with a previous reply.
  We have had a wide-ranging, entertaining and interesting debate and it is now for noble Lords to make up their minds. I hope that noble Lords opposite feel able to withdraw their amendment.
  Lord Mackay of Ardbrecknish: My Lords, the answer to my noble friend Lord Lamont that departments spend money only with the authorisation of the Treasury will not come as news to him as a former Chancellor of the Exchequer. Many of us

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  complain about the dead hand of the Treasury on everything and the noble Lord has merely confirmed that nothing much has changed.
  Lord Bassam of Brighton: My Lords, I thought that the noble Lord might have more insight into the dead hand of the Treasury, which is why I gave that answer.
  Lord Mackay of Ardbrecknish: My Lords, in many ways this has been not an interesting debate but a worrying debate because it has exposed problems with the clause. I wonder where it came from. Who suggested putting it in the Bill? It was not the Neill committee. I suggest that when the noble Lord, Lord Bassam, returns to his office tonight or tomorrow he should find out. If I were him, I would read the riot act about it.
  The noble Lord was arguing for a clause which provided that the commission shall promote public awareness of its work. That was the argument when it came to Oftel, the FSA and everything else. Clause 12 gives the commission a much wider role. While I was prepared to accept at the beginning, very generously, that the commission should have a role in the electoral systems for countries, the other place, local government and the European Parliament, I did not receive a satisfactory answer about the institutions of the European Union. I do not believe—perhaps I am wrong—that the European Central Bank is an institution. Would the electoral commission become involved in that body, which perhaps would become an institution if everybody joined it? The commission will have more than enough to do.
  While I listened to the debate I read the Long Title to the Bill, which refers to the establishment of an electoral, not an education, commission. The word "education" does not appear anywhere in the Long Title. I am prepared to make a half-concession that the electoral systems for the other place, local government and the European Parliament should form some part of the commission's responsibility, but this goes very much wider than that. I suggest to the noble Lord that he and his government colleagues should consider this matter very seriously. Does the Minister believe that, if the clause promotes such doubt that we have spent l¼ hours debating the matter this evening, it is wise for the electoral commission to embark on any of this stuff in case it casts doubt on its position as the regulator of the way that political parties should behave?
  If I was appointed an electoral commissioner—clearly, that would not happen because I do not fall within the various rules—and decided, as a result, to study these proceedings, the moment that I read the present debate I would not bother with Clause 12 but would leave it sticking to the wall. If one starts down some of these roads one enters into political controversy which detracts from the main purpose.
  I shall, very unhappily, beg leave to withdraw my amendment, but if my noble friend goes for the nuclear option I shall certainly support him.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 28 to 30 not moved.]
  Lord Norton of Louth Lord Norton of Louth moved Amendment No. 30A:
  Leave out Clause 12.
  The noble Lord said: My Lords, I am not convinced that the Government have responded directly to the precise points that I made in support of my amendment. The arguments advanced have been tangential to those points. I am not even sure that the draftsman of the clause has fully understood the issue, as is reflected in the marginal annotation. I say to the noble Lord, Lord Bassam, that there are alternatives to the commission. I am happy to advise the Minister on the routes that could be taken, including through the relevant professional bodies, although the alternative that he himself floated struck me as most attractive! However, because I do not believe that the point has been addressed by the Government, I stick with the arguments that I advanced. The noble Baroness, Lady Gould, at the beginning expressed the opinion that some noble Lords spoke with vehemence. I do not speak with vehemence; I speak as I do because I believe that I am right. I beg to move.
  10.4 p.m.
  On Question, Whether the said amendment (No. 30A) shall be agreed to?
  Their Lordships divided: Contents, 28; Not-Contents, 65.

  Division No. 5

  CONTENTS

  Astor, V.

  Jopling, L.

  Attlee, E.

  Lamont of Lerwick, L.

  Blatch, B.

  Lyell, L.

  Burnham, L.

  McColl of Dulwich, L.

  Cranborne, V.

  Mackay of Ardbrecknish, L.

  Cumberlege, B.

  Mancroft, L.

  Dixon-Smith, L.

  Montrose, D.

  Eden of Winton, L.

  Northbrook, L.

  Elles, B.

  Northesk, E.

  Fookes, B.

  Norton of Louth, L. [Teller]

  Glenarthur, L.

  Park of Monmouth, B.

  Henley, L. [Teller]

  Pilkington of Oxenford, L.

  Hodgson of Astley Abbotts, L.

  Thomas of Gwydir, L.

  Hooper, B.

  Willoughby de Broke, L.

  NOT-CONTENTS

  Amos, B.

  Dixon, L.

  Andrews, B.

  Donoughue, L.

  Archer of Sandwell, L.

  Dubs, L.

  Bach, L.

  Elder, L.

  Bassam of Brighton, L.

  Evans of Parkside, L.

  Blackstone, B.

  Farrington of Ribbleton, B.

  Brennan, L.

  Filkin, L.

  Brett, L.

  Gilbert, L.

  Burlison, L.

  Goodhart, L.

  Carter, L. [Teller]

  Gordon of Strathblane, L.

  Chandos, V.

  Goudie, B.

  Cohen of Pimlico, B.

  Gould of Potternewton, B.

  Crawley, B.

  Grabiner, L.

  David, B.

  Grenfell, L.

  Davies of Coity, L.

  Hamwee, B.

  Davies of Oldham, L.

  Hardy of Wath, L.

  Dean of Thornton-le-Fylde, B.

  Harris of Richmond, B.

  Desai, L.

  Hilton of Eggardon, B.

  627

  Hollis of Heigham, B.

  Ramsay of Cartvale, B.

  Hoyle, L.

  Rennard, L.

  Jay of Paddington, B. (Lord Privy Seal)

  Roper, L.

  Sawyer, L.

  Macdonald of Tradeston, L.

  Scott of Needham Market, B.

  McIntosh of Haringey, L. [Teller]

  Shutt of Greetland, L.

  Simon, V.

  McIntosh of Hudnall, B.

  Smith of Gilmorehill, B.

  MacKenzie of Culkein, L.

  Strabolgi, L.

  Symons of Vernham Dean, B.

  Mackenzie of Framwellgate, L.

  Taylor of Blackburn, L.

  McNally, L.

  Tomlinson, L.

  Maddock, B.

  Tordoff, L.

  Mallalieu, B.

  Warwick of Undercliffe, B.

  Morgan, L.

  Wedderburn of Charlton, L.

  Puttnam, L.

  Williamson of Horton, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  10.14 p.m.
  Schedule 3 [Transfer of functions of Boundary Commissions]:
  Lord Bach Lord Bach moved Amendments Nos. 31 to 33:
  Page 131, line 29, leave out sub-paragraph (7) and insert—
  ("(7) For subsection (5) there shall be substituted—
  "(5) As soon as practicable after the Electoral Commission have submitted a report to the Secretary of State under this Act, he shall lay before Parliament—

  (a) the report; and

  (b) (except where the report states that no alteration is required to be made in respect of the part of the United Kingdom to which it relates) the draft of anOrder in Council for giving effect to the recommendations contained in the report."").

  Page 133, line 2, leave out paragraph 4 and insert—
  ("4.—(1) Section 4 (Orders in Council) shall be amended as follows.
  (2) In subsection (1), for the words from ", whether with or without modifications," to "Boundary Commission" there shall be substituted "to the recommendations contained in a report of the Electoral Commission under this Act".
  (3) Subsection (2) (draft Order implementing recommendations with modifications) shall be omitted.").
  Page 136, line 47, leave out from ("for") to end of line 48 and insert ("the words from ", with or without modifications," to "the Commission" there shall be substituted "to the recommendations contained in a report of the Electoral Commission".").
  On Question, amendments agreed to.
  Clause 16 [Transfer of property etc. of the Boundary Commissions]:
  The Deputy Speaker (Lord Lyell): My Lords, if Amendment No. 34 is agreed to, I shall not be able to call Amendment No. 35.
  Lord Bach Lord Bach moved Amendment No. 34:
  Page 11, line 41, leave out ("in accordance with section (Boundary Commissions: transfer of functions)") and insert ("by virtue of section 15(1)").
  On Question, amendment agreed to.
  [Amendment No. 35 not moved.]
  Clause 17 [Transfer of functions of Local Government Commission for England]:
  Lord Bach Lord Bach moved Amendments Nos. 36 and 37:
  Page 12, line 6, after ("transferring") insert ("(to any extent)").
  Page 12, line 10, at end insert—
  ("(1A) An order under subsection (1) may make provision for—

  (a) transferring (to any extent) any relevant function of the Secretary of State to the Commission;

  (b) terminating (to any extent) any relevant function of the Secretary of State or the English Commission without transferring it to the Commission or the Boundary Committee for England;

  (c) modifying (to any extent) any relevant function of the Secretary of State;

  (d) preventing the Secretary of State from exercising any relevant function (including one so modified) unless he has sought and obtained such advice of the Commission as may be prescribed by the order, or authorising him to seek such advice in connection with the exercise of any such function;

  (e) modifying any relevant or other function transferred by an order under subsection (1) so far as it is to be exercisable by the Commission or the Boundary Committee for England;

  (f) conferring on the Commission functions with respect to electoral areas or other electoral arrangements relating to the Isles of Scilly.

  (1B) In subsection (1A) "relevant function" means (subject to subsection (1C)) a function under—

  (a) any of sections 13 to 15 and 17 of the Local Government Act 1992 (local government changes in England),

  (b) any of sections 13, 14 and 17(4) of the Local Government and Rating Act 1997 (parishes and parish councils) so far as having effect in relation to electoral arrangements within the meaning of Part II of that Act, or

  (c) section 2(4) of the Greater London Authority Act 1999 or Schedule 1 to that Act (assembly constituencies).

  (1C) Nothing in subsection (1A) authorises the transfer to the Commission of any power of the Secretary of State under any of the provisions mentioned in subsection (1B)(a) to make orders other than those effecting electoral changes within the meaning of Part II of the Local Government Act 1992; but, subject to that, the functions which may be transferred by virtue of subsection (1A) include functions with respect to the making of orders by statutory instrument.").
  On Question, amendments agreed to.
  [Amendment No. 38 not moved.]
  Lord Bach Lord Bach moved Amendment No. 39:
  Page 12, line 29, at end insert—
  ("(6) The Secretary of State may pay to the Commission such amount as he may determine to be appropriate by way of reimbursement for any expenditure incurred by them which is attributable to the provision by them of advice to the Secretary of State in pursuance of an order under subsection (1).").
  On Question, amendment agreed to.
  Clause 18 [Transfer offunctions of Local Government Boundary Commission for Scotland]:
  Lord Bach Lord Bach moved Amendments Nos. 40 to 42:
  Page 12, line 31, after ("transferring") insert ("(to any extent)").
  Page 12, line 35, at end insert—
  ("(1A) An order under subsection (1) may make provision for—

  (a) transferring (to any extent) any relevant function of the Scottish Ministers to the Commission;

  629

  (b) terminating (to any extent) any relevant function of the Scottish Ministers or the Scottish Commission without transferring it to the Commission or the Boundary Committee for Scotland;

  (c) modifying (to any extent) any relevant function of the Scottish Ministers;

  (d) preventing the Scottish Ministers from exercising any relevant function (including one so modified) unless they have sought and obtained such advice of the Commission as may be prescribed by the order, or authorising them to seek such advice in connection with the exercise of any such function;

  (e) modifying any function transferred by such an order so far as it is to be exercisable by the Commission or the Boundary Committee for Scotland.

  (1B) In subsection (1A) "relevant function" means (subject to subsection (1C)) a function under any of sections 13 to 21 of, and Schedule 5 and paragraph 1(2) of Schedule 6 to, the Local Government (Scotland) Act 1973.
  (1C) Nothing in subsection (1A)(a) authorises the transfer to the Commission of any power of the Scottish Ministers to make orders under any of the provisions mentioned in subsection (1B).").
  Page 13, line 20, leave out ("of the functions transferred by") and insert ("functions in consequence of").
  On Question, amendments agreed to.
  Clause 19 [Transfer of functions of Local Government Boundary Commission for Wales]:
  Lord Bach Lord Bach moved Amendments Nos. 43 to 46:
  Page 13, line 23, after ("transferring") insert ("(to any extent)").
  Page 13, line 27, at end insert—
  ("(1A) An order under subsection (1) may make provision for—

  (a) transferring (to any extent) any relevant function of the National Assembly for Wales ("the Assembly") to the Commission:

  (b) terminating (to any extent) any relevant function of the Assembly or the Welsh Commission without transferring it to the Commission or the Boundary Committee for Wales;

  (c) modifying (to any extent) any relevant function of the Assembly;

  (d) preventing the Assembly from exercising any relevant function (including one so modified) unless the Assembly has sought and obtained such advice of the Commission as may be prescribed by the order, or authorising the Assembly to seek such advice in connection with the exercise of any such function;

  (e) modifying any relevant or other function transferred by an order under subsection (1) so far as it is to be exercisable by the Commission or the Boundary Committee for Wales.

  (1B) In subsection (IA) "relevant function" means (subject to subsection (1C)) a function under—

  (a) section 30(3) or (4) or 31(3) of the Local Government Act 1972 (restriction on community applications during and after reviews), or

  (b) any of sections 54 to 60, 69 and 71 of, or paragraph 1A of Schedule 11 to, that Act (local government changes in Wales).

  (1C) Nothing in subsection (1A) authorises the transfer to the Commission of any power of the Assembly under any of the provisions mentioned in subsection (1B)(b) to make orders other than those effecting alterations in electoral arrangements within the meaning of Part IV of the Local Government Act 1972; but, subject to that, the functions which may be transferred by virtue of subsection (1A) include functions with respect to the making of orders by statutory instrument.").
  630
  Page 14, line 3, at end insert—
  ("() Nothing in this section shall be read as affecting the generality of subsection (6).").
  Page 14, line 7, leave out ("transferred by") and insert ("in consequence or).
  On Question, amendments agreed to.
  Viscount Astor Viscount Astor moved Amendment No. 47:
  After Clause 19, insert the following new clause—

  COMMISSION TO BE PROHIBITED FROM INSTITUTING CRIMINAL PROCEEDINGS
  (" . The Commission shall not themselves institute criminal proceedings against any person in any court in the United Kingdom.").
  The noble Viscount said: My Lords, in moving Amendment No. 47, I shall speak also to Amendment No. 48. I shall be reasonably brief. They are probing amendments which seek to clarify the position in regard to investigations and prosecutions. I do not think that the position is at all clear a) the moment.
  These issues were raised in Committee. In responding to the points made, the noble Lord, Lord Bach, said:
  "So far as concerns the electoral commission, where a party member complains about possible fraud, either in his or in another party, I imagine that the electoral commission will investigate. It may, as may anyone, bring in the police if it feels that it needs to do so. If it does, then in the normal way the question of whether or not a prosecution takes place will, in the last resort, depend on the Director of Public Prosecutions".
  The noble Lord then went on to say that,
  "powers exist under the Bill to prosecute and the electoral commission will be in a position to do so. The position often changes when the police are brought into matters of this kind".— [Official Report, 12/10/00; col. 528.].
  Those are interesting words. We need clarification on two issues. The noble Lord used words such as "I imagine" and "may", which was perfectly reasonable in Committee. However, I hope that he will be able to go further today. The noble Lord, Lord Bach, said that the police would be involved if the commission felt the need to involve them. Does that mean that the commission could itself investigate criminal offences created by the Bill, such as those of evading restrictions on donations or giving false expenditure reports? Who would prepare a file for the Director of Public Prosecutions? Would it be the commission or would the matter be handed over to the police and it then become the responsibility of the police? Where would the line be drawn?
  Of particular importance, would there be circumstances in which the commission itself would be in a position to prosecute? The Minister's words in Committee gave me that impression and I should like to know whether or not that is the case. What would be the position in regard to prosecutions in Scotland and Northern Ireland? It would be very helpful if the Minister could explain that.
  I assume—I may be wrong—that the commission would not conduct any criminal investigations or prosecutions. It would seem unwise for that to be part

  631
  of its duties. In the light of what the Minister said, I should be grateful if he can confirm the exact situation. I beg to move.
  Lord Bach: My Lords, I am generally grateful to the noble Lord and the noble Viscount for tabling these probing amendments. The position was certainly not clear from my remarks last time. I intervened later to reverse what I had said but the noble Viscount has now given me the opportunity to make the Government's position clear and I shall attempt to do so.
  This group of amendments is concerned with the commission's powers in relation to criminal proceedings and investigations. The general powers of the commission in relation to enforcement of the provisions of the Bill are set out in Part X. Nowhere is it suggested that the commission should have the power to institute criminal proceedings in the same way as, for example, Customs and Excise. The Neill committee made clear its view that prosecutions in respect of breaches of the law relating to controls on donations and election expenses should be placed in the hands of the Director of Public Prosecutions and should not be the concern of the commission. The noble Lord's amendment accords perfectly with that policy. But we believe that the amendment is unnecessary. If it were the intention that the commission should be able to institute criminal proceedings, it would have been necessary to make explicit provision to that effect. There is no such provision; therefore the commission does not have that power.
  While the Neill committee did not intend that the commission should be a quasi-judicial body, it clearly did intend that it should have powers of investigation. The committee recommended that those powers should extend to investigating suspected breaches of electoral law. Against that background, Amendment No. 48 seems to propose a rather narrow role for the commission.
  The noble Lord's proposition in this probing amendment would appear to be that, if a piece of evidence or an allegation comes to the notice of the commission which gives rise to the merest suspicion that an offence may have been committed, it should immediately be referred to the police. It is quite possible that the commission may attract a good number of allegations which may give rise to mere suspicion. We do not think it sensible to require that the commission should immediately place such suspicions at the door of the police.
  The commission will be expert on the law in this area and it would therefore be entirely appropriate for its staff to undertake a preliminary investigation where it has cause for concern. Once it has established prima facie evidence of a criminal offence, it may—I choose that word carefully—then hand over its findings to the police or the Crown Prosecution Service for further investigation. An alternative course would be for the commission to initiate civil proceedings under Clause 144, in which case a reference to the police or the CPS might be inappropriate.
  632
  In short, the commission will be an enforcement authority but not a prosecuting authority. We should allow it space to undertake its proper enforcement role. I hope that my answer has cleared up some of the misunderstandings that may have developed as a result of our debate in Committee.
  Baroness Park of Monmouth: My Lords, perhaps I may ask the noble Lord a question; I hope I shall be forgiven if I am asking it at the wrong moment. Suppose that some strange circumstance arose and an offence was committed that the commission did not want to pass to the police or anyone else. Would it then be open, for example, to Parliament or to the police to pursue the matter? I am not quite clear whether the commission is the be-all and end-all of the decision on whether to take action.
  Lord Bach: My Lords, I do not think that the powers of any other authority or individual are curtailed by the existence of the commission. In other words, other people's rights to investigate and bring charges (to approach the police, at least) remain.
  Viscount Astor: My Lords, I am grateful to the noble Lord for his helpful explanation. It would be wrong for the commission itself to be involved in prosecutions. That would be the wrong role. I am grateful to the noble Lord for clarifying the position. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 48 not moved.]
  Clause 21 [Parties to be registered in order to field candidates at elections]:
  Lord Bach Lord Bach moved Amendment No. 49:
  Page 14, line 17, at beginning insert ("Subject to subsection (4A).").
  The noble Lord said: My Lords, in moving this amendment, I shall speak also to government Amendments Nos. 50, 52 and 81, as well as Amendments Nos. 51 and 80 tabled in the name of the noble Lord, Lord Mackay. Amendments Nos. 49, 50 and 52 respond to an amendment tabled by the noble Lord, Lord Goodhart, in Committee. At that stage, the noble Lord suggested that what is now Clause 21 of the Bill went over the top in applying the restrictions on candidates' descriptions to elections for parish or community councillors.
  I should remind the House that the purpose of these restrictions is to bring organisations that put forward candidates at an election within the controls on parties' income and expenditure. That said, we fully accept that there is no need for such controls to apply to a minor party—that is, one that operates solely at the level of a parish or community council. It follows, therefore, that the restrictions on candidates' descriptions need not apply at that level. Therefore, the amendments modify Clause 21 accordingly. It would remain open to a minor party to register, on a voluntary basis, under Part II of the Bill in order to ensure "copyright" of the party's name.
  Although we can relax the restrictions on candidates' descriptions at parish and community council elections, the Government cannot support a more general relaxation along the lines proposed by Amendment No. 51. As I have already said, these restrictions underpin the controls on donations and campaign expenditure. It has been no easy task to define a political party for the purposes of this Bill. The approach that we have adopted is to identify a political party by reference to what happens at the polls. The key defining feature of a party is that it puts forward candidates for election under a common banner. We know, for example, that a Conservative candidate in Edinburgh is a member of the same organisation as a Conservative candidate in London, or Cardiff. It is through a candidate's description that we can finger, so to speak, the supporting organisation and thereby apply the financial controls that are an important feature of the Bill.
  We believe that Amendment No. 51 would undermine this whole approach. Under the amendment, it would be open to an organisation to put up candidates across the country but without the need to register as a political party. The noble Lord has tabled a number of other amendments for this Report stage with a view to closing loopholes. Whatever the prospect of the loophole in question being exploited, we feel that the noble Lord is putting forward an amendment that has the potential to create quite a large hole in the scheme of controls, never mind a mere loophole.
  If this amendment were made, we could have "Independent against the Euro" or "Independent for one nation conservatism" candidates standing throughout the country in election after election. The organisations that backed those candidates would, at best, be caught by the provisions in Part VI of the Bill, but outside an election period they would not be subject to the accounting requirements in Part III, nor the controls on donations in Part IV. We do not believe that that is a consequence which is acceptable either to the Government or to the noble Lord. Therefore, I ask the noble Lord not to move his amendment.
  Finally, government Amendment No. 81 to Clause 32 addresses a minor drafting point that arises from changes made to the Bill in Committee. We are grateful to the noble Lord, Lord Mackay, for having spotted this point, but I hope that he will accept the Government's amendment in preference to his own. Schedule 23 will, in fact, apply to a minor party. Indeed, it is by making the appropriate declaration required by paragraph 2 of Schedule 23 that an existing registered party will be registered under Part II of the Bill as a "minor party". I hope, therefore, that the noble Lord will not move Amendment No. 80 but that he will support government Amendment No. 81 when we reach that stage. I beg to move.
  10.30 p.m.
  Lord Mackay of Ardbrecknish: My Lords, the point behind this series of amendments is an important one. I shall begin by saying that I am grateful to the Minister and to the Government for bringing forward
  634
  their own amendments relating to candidates for parish and community elections. If we had left the position as it stood in Committee, it would have meant that people who were standing at these lower elections—if I may so describe them—would not have been able to add anything to the word "independent". If they were the independents against filling in the duckpond, or the independents against not filling in the duckpond, they would not be able to say so. That may appear to be a trivial local issue, but I have little doubt that it could be a matter of some heat and contention in various villages. It is important that at local elections people ought to be able to add to the word "independent" up to five other words to describe what they are standing for.
  I am grateful to the Minister for his response. I do not want to sound churlish when I say that I rather regret that the Government did not go a little further. My Amendment No. 51 goes that bit further. It states that a candidate who is an independent and who is standing for an election of any kind and at any level ought to be able to add up to five words to describe what he is standing for. We had a long debate on this matter in Committee and I do not intend to go over that. However, it is fair to point out, as did my noble friend Lord Norton of Louth, that the further description would enable voters to identify what an independent stood for.
  I have no problem with candidates standing as independents, even when they occasionally stand in a way that is designed to try to take votes away from my party. It seems to me that one of the fundamental things about democracy is not just that one can vote freely and in secret but that one can also stand and tell the electorate what one is standing for. I do not want to speak at length at this time of night, but I worry about the kind of restrictions that the Bill occasionally imposes, often for well meaning reasons. However, they are there and they could be sorely abused in the future.
  As I said, I have no problem with independents. I have no problem with an independent adding words to describe what he is standing for. As I understand the position, a Labour candidate could add some words to the description on the nomination paper. At a certain period in history it was popular in Scotland for political parties to coin the phrase, "Labour against the poll tax", for example. I am not sure what that added to the Labour Party's candidature, but they thought that it add something. If that is still allowed under the Bill—I think that it is—I cannot see why someone should not be able to coin the phrase, "independent against the council tax", or independent against whatever the person wants to be an independent against.
  I hear what the noble Lord said about people standing in each constituency as independents against one particular thing and not falling foul—if I may put it that way—of the political parties route. But surely the electoral commission and the courts have some role in that. Members of the Conservative Party could all decide to stand as independent Conservatives and not have to obey any of the spending or the donation rules.

  635
  That cannot be a serious proposition. It would not be allowed—not that we should think of doing it for a minute. I am taking the measure to ridiculous extremes. Why, therefore, are the Government so frightened that a crowd of people will get together and say that they are independents for the euro or independents against the euro and thus manage to evade the rules? I find it hard to understand that argument.
  I accept that the Government have tidied up in their Amendment No. 81 what I attempted to tidy up in my Amendment No. 80. That is fine. However, I should like the Government to go a little further and try to address the matter of why an independent standing in an individual constituency with no connection to anyone else but wanting to make a point should not be able to describe what he is standing for? If the only argument put forward is that it is in case those who are anti or pro the euro decide to use that as a loophole, I believe that there are other ways round that rather than depriving an individual of his democratic right to stand and to describe what he stands for as he sees fit, provided that that does not confuse the electorate.
  Lord Goodhart: My Lords, I am most grateful to the Minister for having put forward an amendment which deals with the point which I raised initially in Committee about the undesirability of forcing small groups which want to put up a slate in a parish council—I refer to my old friends the Ambridge ratepayers—to go through all the rigmarole of registering as a political party in order to be able to do so.
  I am reluctant to look a gift horse in the mouth, but I wonder whether the amendment goes far enough. A candidate can currently stand in parish or community elections in the name of an unregistered party, such as the Ambridge Ratepayers. So why should any group wish to register as a minor party? It was suggested that that might give some copyright protection to the name. The only restriction that I can find in the Bill is that an unregistered party is not entitled to a party political broadcast. I hardly think that the Ambridge Ratepayers are likely to qualify for one anyway. I wonder whether it would not be simpler and better in this over-complicated Bill to go one step further and take out all references to minor parties. We could then get rid of the whole of Clause 32 and parts of many others. However, I am grateful for what the Government have offered. I am merely suggesting further tidying up.
  We support the principle behind the amendment tabled by the noble Lord, Lord Mackay of Ardbrecknish, but there is a risk of abuse as it is currently worded. The Conservative Party is clearly not going to field candidates under the name "Independent Conservative" in every constituency, but there are other risks. The amendment would have allowed the Referendum Party at the 1997 election to have avoided the restrictions in other parts of the Bill by standing under the title "Independents for the Referendum". Without prejudice to any decision that
  636
  we might wish to take if the noble Lord were able to bring the amendment back in a form that did not lend itself to abuse, we feel unable to support him.
  Baroness Gould of Potternewton: My Lords, I understand the Government's argument about the need for descriptions to underpin the controls on donations and expenditure. It is right that the provision is to be relaxed for parish and community council elections. However, I am still anxious about the use of the word "independent", for completely different reasons from those put forward by the noble Lord, Lord Mackay.
  I understand the argument about political descriptions being used to expound a political position, but what is to prevent an independent from having his occupation as a means of identification? I asked what might have seemed a simple and stupid question in Committee about what would happen if somebody changed his name by deed poll to the name of another candidate. The Minister's answer was that the middle name would count. If I went to the trouble of changing my name by deed poll, I would make sure that I did it properly and took the other person's full name. The only way to identify me in those circumstances would be to have some other words added. It would be useful to look at the possibility of adding an occupational title to the word "independent". That would get round a rather stupid anomaly.
  Viscount Cranborne: My Lords, I support my noble friend Lord Mackay. We should be extremely grateful to the Government for their concessions. I wonder whether they could listen sympathetically to what my noble friend has said. For instance, if an independent were to stand in North Dorset for Dorset UDI—an increasingly worthy cause because it is Dorset soil, after all—and at the same time another independent were to stand for continued integration with the rest of the United Kingdom, however loopy those two positions might or might not be, if there were an independent willing to do that and another also standing, it would at least be convenient to know which of those two positions we were voting for if we were minded to vote for an independent.
  I associate myself very much with what my noble friend has said. There is an extremely valuable tradition of independents standing for Parliament. I would greatly regret it if it were restricted in any way, particularly as the main political parties are becoming increasingly institutionalised, not least because of many of the provisions of this Bill. With all the powers that we are giving to this commission, would it not be possible to rely on its own judgment as to whether a party was trying to get around the rules by standing as independent but actually organising itself countrywide? I suspect that we would all recognise it when that happened. My noble friend has already given the example of the Referendum Party. I suspect that we all knew there was one financier for that party. It was extremely well organised during the course of the last general election. I am sure that it would have

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  fallen foul of any independent judgment made by a neutral and Olympian commission. I wonder whether the Government's proposed amendment, although welcome in its way, does not in fact restrict the admirable tradition of independents standing for Parliament. Can we not look to the commission itself to address the very understandable objection that the Minister has put forward?
  Lord Hodgson of Astley Abbotts: My Lords, perhaps I may also add my request to the Minister to have another look at this matter. We had a long discussion about it at Committee stage. I do not wish to rehearse all those arguments again. There is the in-built advantage of major parties; the fact that there is real importance in keeping the roots of local democracy alive for people to be able to believe that they can air a local grievance by standing for Parliament. Such people are perhaps necessarily of modest means and modest experience. They need a descriptive nomenclature as part and parcel of their arrangements.
  When we discussed this at Committee stage I asked the Minister whether or not this matter did not give an in-built advantage to major parties. He was kind enough to say that it did and that that was the price of modern democracy. I would like us to find a way to make sure that that was not the price we had to pay.
  Lord Bach: My Lords, the Government, too, would like to find a way because we also value the independents in an election, whatever stance they take. It is a healthy sign of our democracy. Our problem is exactly as I stated it when I moved my amendment. We have sought ways of trying to prevent parties evading the rules, but we cannot find any. If noble Lords opposite can produce something that avoids destroying the scheme that underpins the Bill, we would be very grateful. It is this provision which prevents, for example, Independents against the Euro-Party from escaping the controls that everyone else has to observe. It is a pity that independents cannot describe themselves, but we believe it is necessary to underpin the Bill's scheme. If I am throwing the matter back to noble Lords, they will understand why I am doing so. It is done more in sorrow than in anger. We do not have a solution to this particular problem and I am not sure that there is one.
  However, I do not believe that that would preclude the commission, once it is up and running, from looking at this matter if it should turn out to be a problem or if in practice it was unfair. I am sure that the commission will be robust in the way that it considers the procedures. We would certainly not be against that. However, we do not believe that we can move on this issue in the context of the Bill.
  On Question, amendment agreed to.
  10.45 p.m.
  Lord Bach Lord Bach moved Amendment No. 50:
  Page 14, line 40, leave out subsection (3).
  On Question, amendment agreed to.
  [Amendment No. 51 not moved.]
  Lord Bach Lord Bach moved Amendment No. 52:
  Page 15, line 11, at end insert—
  ("(4A) Subsection (1) does not apply in relation to ally parish or community election.").
  On Question, amendment agreed to.
  Clause 23 [Office-holders to be registered]:
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 53:
  Page 17, line 1, leave out subsection (4) and insert—
  ("(4) The person registered as a party's treasurer shall be responsible for compliance on the part of the party—

  (a) with the provisions of Parts III and IV (accounting requirements and control of donations), and

  (b) unless a person is registered as the party's campaigns officer in accordance with section (Parties with campaigns officers), with the provisions of Parts V to VII (campaign expenditure, third party expenditure and referendums) as well.

  (4A) In the case of a party with accounting units the person registered as the party's treasurer shall, in relation to the provisions of Part III, be responsible for compliance on the part of the party's central organisation (rather than of the party).").
  The noble Lord said: My Lords, in moving Amendment No. 53, I wish to speak also to Amendments Nos. 55, 57, 64, 71, 73 to 79, 278 and 279. This group of amendments relates to the role of a party's registered treasurer. The government amendments respond to points raised in Committee by the noble Lords, Lord Mackay and Lord Rennard.
  The noble Lord, Lord Mackay, argued that, in order to undertake the key role of compliance officer, it was not necessary for the person registered as the party's treasurer to have overall responsibility for the financial affairs of the party. Indeed, the noble Lord saw a positive advantage in separating the two roles. I would not go so far as that, but in Committee I indicated that I accepted that, for the purposes of the Bill, it was not essential for the two roles to be combined. Accordingly, Amendments Nos. 53 and 57 redefine the role of both a party's registered treasurer and the treasurer of an accounting unit in terms solely of his or her responsibility for compliance with the provisions of the Bill.
  The other amendments address the long-standing concerns of the Liberal Democrats about the impact of the Bill on their federal party structure. The noble Lord, Lord Rennard, indicated that his party's internal structures and lines of accountability could be better accommodated within the framework of the Bill if the person in charge of the party's day-to-day campaigning—namely, himself, as I understand it—instead of the registered treasurer were to be responsible for compliance with the provisions of Parts V to VII of the Bill. As I indicated in Committee, that would add a further complication to the Bill. However, arguably it would be a price worth paying if it helped to resolve the difficulties faced by one of the country's three main political parties.
  The amendments provide that a party may elect to be a party with a campaigns officer. Where a party so elects, the party's registered treasurer will be

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  responsible for compliance with the accounting requirements and the controls on donations under Parts III and IV, while the registered campaigns officer will be responsible for compliance with controls on election and referendum expenditure under Parts V to VII.
  The new clause to be inserted by Amendment No. 55 makes further provision for parties with a campaigns officer. I draw the attention of the noble Lord, Lord Rennard, to subsection (1)(b) of the new clause. That would enable the person registered as a party's campaigns officer also to be registered as the party's leader or nominating officer, or both. I understand that the noble Lord is the Liberal Democrats' nominating officer and that it is his party's intention that he should also be the party's campaigns officer. That would be in order under the new clause and, therefore, that would be all right for the noble Lord, Lord Rennard.
  The amendments to Clause 28 and to Schedules 4 and 23 provide for the submission to the electoral commission of the details of a party's registered campaigns officer and for those details to be kept up to date. The two amendments to Clause 32 make it clear that the provisions in respect of campaigns officers do not apply to minor parties. I beg to move.
  The Deputy Speaker (Lord Lyell): My Lords, I have to advise your Lordships that, if Amendment No. 53 is agreed to, I shall not be able to call Amendment No. 54.
  Lord Mackay of Ardbrecknish: My Lords, in so far as some of these amendments relate to issues which I raised, I am grateful to the noble Lord for heeding them. In so far as they allow the Liberal Democratic Party to continue their federal structure, in a manner entirely consistent with my usual stance during this Bill, I welcome them as well.
  Lord Rennard: My Lords, very briefly, I too welcome these amendments, and thank the Minister for having expressed the case for them so eloquently. They look very familiar to me, as indeed they are markedly similar to those which I put forward at Committee stage, with the exception of the change of title from nominating officer to campaigns officer. I think that is a clear improvement and makes it plain that the burden on myself and my day job will increase markedly as a result of this legislation. The amendments allow greater flexibility to all the parties in the running of their affairs. As the noble Lord the Minister said, it is especially important where responsibilities are organised on federal lines rather than in parties where perhaps the London party dictates to other local parties exactly how election campaigns should be run.
  Lord Bassam of Brighton: My Lords, I have a question for the noble Lord, Lord Rennard, which is: is he on performance-related pay?
  On Question, amendment agreed to.
  [Amendment No. 54 not called.]
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 55:
  After Clause 23, insert the following new clause—

  PARTIES WITH CAMPAIGNS OFFICERS
  (" —(1) In the case of any registered party a person—

  (a) may be registered as the party's campaigns officer, and

  (b) may be so registered whether or not he is also registered as the party's leader or nominating officer (or both).

  (2) The person registered as a party's campaign officer shall be responsible for compliance on the part of the party with the provisions of Parts V to VII.
  (3) So long as a party is registered as a party with a campaigns officer, section 23(5), (7) and (8) shall apply in relation to a person registered as the party's campaigns officer as they apply in relation to a person registered as treasurer of the party, except that in section 23(5) the reference to the appropriate person shall be read as a reference to the person registered as treasurer of the party.
  (4) The person registered as a party's campaigns officer may appoint, on such terms as he may determine, one or more deputy campaigns officers of the party for the purposes of Part V, but not more than 12 persons may hold such appointments at the same time.
  (5) For the purposes of this section—

  (a) the provisions of section 72(2) to (10) shall apply in relation to a party's campaigns officer and the appointment of a person as deputy campaigns officer as they apply in relation to a party's treasurer and the appointment of a person as deputy treasurer, and

  (b) any reference in those provisions to a treasurer or (as the case may be) deputy treasurer shall accordingly be read as a reference to a campaigns officer or (as the case may be) deputy campaigns officer.

  (6) In relation to any time when a party is (or was) registered as a party with a campaigns officer—

  (a) the provisions of Part V (other than section 72) and Parts VI and VII shall apply as if any reference to the treasurer of the party were a reference to the registered campaigns officer, and any reference to a deputytreasurer of the party were a reference to a deputy campaigns officer of the party; and

  (b) the provisions of Part X (enforcement) shall apply in connection with matters relevant for the purposes of Parts V to VII as if any reference to a person who is or has been the treasurer of the party were a reference to a person who is or has been the registered campaigns officer.").

  On Question, amendment agreed to.
  Clause 24 [Financial structure of registered party: adoption of scheme]:
  Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 56:
  Page 18, line 37, leave out ("For the purposes of this section") and insert ("Except for the purposes of Parts V and VII,").
  The noble Lord said: My Lords, I beg to move Amendment No. 56. If I was of a suspicious nature I would say that this amendment takes us back to one of the ways in which the Government deliberately and cynically are rigging this Bill to benefit the Labour Party; but of course as I am not of a cynical nature I could not possibly say that.
  My amendment refers to the position of the trade unions which are affiliated to the Labour Party. Clause 24(4) makes it abundantly clear that they are not to be taken as part of the party for the purposes of the Bill. I do not have a problem, nor am I arguing about the trade unions being affiliated to the Labour Party. That is a matter for them and for the Labour Party. Perhaps I might say that by using the phrase "affiliated trade unions" I am referring only to those unions which have signed a political affiliation agreement with the Labour Party and joined themselves to it.
  Those unions make a conscious choice to join with the Labour Party, support its political aims and policies and participate in its internal decision-making process in a variety of ways, including through the National Executive Committee, the National Policy Forum and elections for the party leader. In fact, there are more trade union NEC members than constituency Labour Party, Parliamentary Labour Party and European Parliamentary Labour Party representatives combined.
  I will not go on, or indeed at the risk of seeming to pun unnecessarily, labour the point I want to make, but affiliated trade unions are an integral part of the machine. In Committee the Minister mentioned organisations in respect of which the Conservative Party had applied for exemptions under Clause 24(8)(c). I would just say to the Minister that these organisations are not involved separately in partisan campaigning, and certainly not to the extent of only affiliated trade unions; nor do they spend a lot of money. I understand that UNISON, which I think is an affiliated union, spent something like £1 million on partisan advertising at the last election.
  The Minister drew our attention to the Conservative Party's evidence to the Home Affairs Select Committee in 1992. That drove me to take another look at it, and I saw there the words of the then General Secretary of the Labour Party, who was giving oral evidence to the Select Committee on 23rd June 1993. He said this:
  "There was obviously agreement between the Labour Party and its affiliated unions as to how we fought that election".
  He was referring to the 1992 General Election. If the Minister thinks I am misquoting, he should perhaps consult the person who said that, namely, Mr Larry Whitty, who is now of course the noble Lord, Lord Whitty, a member of the Government and of your Lordships' House.
  I would also refer your Lordships to the website—just to show how trendy and modern I am—of the Labour Party in the trade union section. Referring to the 1997 election, it said this:
  "The scale of union support before and during the 1997 election was unprecedented and was 100 per cent targeted behind the successful key seat strategy"—
  that was certainly true—
  "The affiliated unions support the drive to make Labour as strong…as possible and continue to pursue many projects, collectively and individually, to this end".
  Undoubtedly the Labour Party and its affiliated trade unions campaign as one. I have no problem with that. However, the Bill makes an exception to that principle.
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  It states that any money they spend on political campaigning for the Labour Party will not count towards the Labour Party's spending limits, either in elections or, indeed, in referendums.
  Under the Bill the Labour Party can spend £20 million in the year before an election. It can spend £5 million in a referendum campaign. According to the Labour Party website, there are 23 affiliated trade unions. Each of those could spend £1 million, in the year before an election and £ £½ million in an election campaign. Therefore, they could spend together an additional £23 million in an election campaign and £11.5 million in a referendum. I recognise that those figures may be a little unrealistic in practice. Some unions may not be able to get anywhere near that level. Nevertheless, it is there in theory. Even if they spend 25 per cent of that amount, that would still be a significant addition to what the Bill states should be the capped expenditure on behalf of political parties. The words, "cake and eat it", spring to mind. That is what the Government are trying to do.
  In Committee noble Lords tried to cover their embarrassment by having one or two other arguments up their sleeve. They argued that the exemption was necessary in order to ensure that money given to the Labour Party by the unions is declared in the register of donations held by the electoral commissioner. Indeed, the noble Lord, Lord Bassam, stated:
  "Far from being a device to obscure these financial and political links, the very purpose of subsection 8 is to ensure that such funding and the relationship are transparent". — [Official Report, 10/10/00; col 291.]
  That is not a good argument. Not only does the Labour Party publish the details of the money it receives from the trade unions in its annual accounts; the details of the political funds of trade unions are regulated and made public at any rate. The unions are already required to make annual returns of the financial affairs available for public inspection. That is made clear in paragraph 6.21 of the Neill report. The argument that if the exemption were not made transparency would not otherwise be ensured simply does not stand up. The second argument was that if the unions were included as part of the Labour Party, the party's annual accounts produced under Part III of the Bill would have to include all the affairs of the affiliated trade union.
  I believe that Amendment No. 56 meets both those arguments. I am perfectly prepared to concede them to the Minister. Trade unions would still be separate from the party for the purpose of donating and accounting. They would be considered as part of a political party only when it came to campaign and referendum expenditure limits. No doubt the Minister will have some more arguments made out by this time and no doubt he will reject my amendments. However, I believe he must address the important central point I make. By going about it the way the Bill does, the Labour Party and its affiliated unions will be allowed to exceed the spending limits as they would otherwise apply. Is that fair, not only in terms of elections but in terms of referendums?
  We have discussed not allowing an independent candidate to put two or three names on the ballot paper if he was standing for parliamentary elections because he just might find a loophole. If that is a good enough argument for a poor old independent to find a loophole, here is a loophole a mile wide. If the Government were being honest to themselves and to the political process, they should consider either my way of closing this loophole or come up with their own between now and next week. I beg to move.
  11 p.m.
  Lord Bassam of Brighton: My Lords, the noble Lord, Lord Mackay, sought to narrow the responsibilities of the registered treasurer. These amendments now seek to add to those responsibilities. The intention is to make the registered treasurer responsible for any campaign expenditure or referendum expenses incurred by a constituent or affiliated organisation which is not to be treated as part of the party by virtue of Clause 24(8).
  I am somewhat surprised that the noble Lord continues to pursue this point. While he seeks to bring Clause 24(8) organisations back within the registered party for the purposes of Parts V and VII, Central Office is working constructively with officials to include a number of organisations affiliated to the Conservative Party within the Clause 24(8)(c) order. There seems to be some confusion in the noble Lord's party about its policy towards this provision.
  The fact is that Central Office at least accepts that it is nonsensical to treat certain affiliated organisations, which are essentially free-standing, independent bodies in their own right, as part of a party. The Labour Party is not responsible in any way for expenditure by affiliated trade unions; nor is the Conservative Party responsible for expenditure by, for example, the Conservative Christian Fellowship or, for that matter, the Association of Conservative Peers. As such, the registered treasurer of either party cannot be held accountable for those bodies. If those bodies incur election or referendum expenditure, they do so on their own behalf and in their own right. It is they who will need to account for it under Parts VI and VII. It would be quite wrong to place any responsibility on the registered treasurer of the party.
  The noble Lord, Lord Mackay, seems to see mischief in all of that. It is argued that the trade unions affiliated to the Labour Party will be able to incur election expenditure on a grand scale on the party's behalf, thus facilitating expenditure above the £20 million limit. Amendment No. 56 seeks to address that by providing that the exclusion for which Clause 24(8) provides does not apply to Parts V and VI.
  There are two strands to that argument. First, the noble Lord suggests that it is perfectly obvious that, given their links, political expenditure incurred by an affiliated trade union should be regarded as expenditure incurred by the Labour Party. However, it should be pointed out that the Neill committee did not see it that way. The committee noted NALGO's
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  campaigns in the early 1990s but adduced the example in support of its argument that controls on third party expenditure were required. That point now goes because it is not affiliated to the Labour Party.
  It did not suggest that those trade unions affiliated to the Labour Party should not be regarded as third parties at all. I do not see how one could come to any other conclusion. The Labour Party cannot compel a trade union to conduct a campaign on its behalf. If a trade union uses its own resources to conduct a political campaign, it is because it believes that such a campaign will be in the interests of its members. Those interests may not always accord with the interests of the Labour Party. I should have thought that some of our disagreements in the past would at least have adduced that point when we sometimes argue between and among friends within the trade union movement. The trade union movement is independent of the Labour Party.
  The noble Lord argues that the Bill offers scope for the subversion of limits on expenditure by political parties. The Labour Party could spend up to its own limit and at the same time conspire with its affiliated trade unions to mount a parallel campaign to promote the election of a Labour government. Not for the first time, the noble Lord sees dangers lurking in every nook and cranny of this Bill. The Conservative Party put forward a number of candidates for inclusion in Clause 24(8)(c), but the noble Lord seemingly does not regard them in the same light as the trade unions, albeit that the same possibilities arise.
  Similarly, how would the noble Lord react if the Conservative Party's corporate donors were to mount a campaign calling for the return of a pro-business government? He would no doubt argue that companies are not affiliated to the Conservative Party, so the same concerns do not arise. But the point is that a trade union has as much right to campaign in its own name and to register as a recognised third party or as a permitted referendum participant as has a company. There must be that equity. The trade unions and the Labour Party are distinct and separate organisations. There is no case for treating them as one for the purposes of Parts V and VII.
  I am sure that the noble Lord, Lord Mackay, having heard those compelling arguments, will feel more than usually obliged to withdraw his amendments.
  Lord Mackay of Ardbrecknish: My Lords, although the argument was not in the least compelling, it certainly was not surprising. If there were equivalent bodies on the Conservative side which would be allowed to spend £1 million each, the noble Lord and his officials would have found a way of ensuring that the capping which the Bill imposes on political parties could not be breached by the use of the bodies affiliated to the political party and well able to spend lots of money.
  I hear his suggestion that the Conservative Party should find friends who will do the same thing. I wonder whether he would be happy to allow those

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  "friends" to drive a coach and horses through the capping expenditure, which is what he wants his friends to be able to do as proposed in the Bill.
  It is unbelievable that the Minister should try to persuade me that the trade unions are somehow separate from the Labour Party. I read out 33 NEC members, 12 of them nominated by the trade unions. I read out what was said by his noble friend Lord Whitty. It is the least convincing argument.
  He could put forward many other arguments. He could say that it would be difficult and bureaucratic—which would not surprise me, given the rest of the Bill—or he could simply say, "We do not believe that this should be done. The trade unions have a right to campaign for who they like and if they are campaigning for us, good and well". I say simply that if they were campaigning for the Liberal Democrats or for the Conservative Party, I would wager that he
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  would take a different view. But it is too late to put that bet to any kind of test and I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Lord Davies of Oldham: My Lords, I beg to move that further consideration on Report be now adjourned.
  Moved accordingly, and, on Question, Motion agreed to.

Insolvency Bill [H.L.]
Returned from the Commons on Friday 17 November agreed to with amendments; the Commons amendments printed pursuant to Standing Order 50.
House adjourned at eight minutes past eleven o'clock.