HL Deb 06 July 2004 vol 663 cc744-55

8.2 p.m.

Report received.

Schedule 1 [Substitution of Schedule 1 to the Scotland Act 1998]:

The Duke of Montrose

moved Amendment No. 1:

Page 4, line 30, at end insert—

"() For the purposes of sub-paragraphs (9) and (11), references to" Parliament" do not mean the Scottish Parliament (as defined by section 126(1) of the Scotland Act 1998 (c. 46)) but refer to the Parliament of the United Kingdom."

The noble Duke said

My Lords, I thank the Minister for his detailed reply to a large number of my concerns at Committee stage. Perhaps I should beg the forgiveness of your Lordships as, for those who have seen the noble Lord's letter, some of my amendments will seem a little dated. They were tabled before I received his letter, which he sent me on 30 June. This could be partly my fault, as I do not have a secretary in Westminster to check my mail when I am not here. The internal mail seems occasionally to emulate second-class post, and as nothing had appeared by early Thursday afternoon, I caught up with the letter only yesterday.

It was particularly useful that he pinned down for us that the Scottish Parliament will provide accommodation for 105 MSPs and their staff. I am not sure whether there has been a reappraisal of the needs of the staff, but I understand some of the inquiries have shown that the first estimate for the building was for some 16,000 square metres, which later had to be revised to 23,000 square metres, and now stands at 31,000 square metres. Whatever else, it must surely be adequate for the purpose.

The amendment once more raises the issue I brought up at Committee stage as to whether references relate to the Scottish Parliament or to our Westminster Parliament here. On reading the Minister's answer about references to "Parliament", I find myself somewhat perplexed. Clause 3 of the Bill talks about "money provided by Parliament"—that is, as the Minister assured me, this Parliament and not the Scottish one. I then mentioned the reference in Schedule 1 to the laying of the Electoral Commission's report before Parliament. The Minister confirmed that my interpretation was correct, and that the schedule referred to the Westminster Parliament. However, he then went on to explain that, as Schedule 1 replaced Schedule 1 to the Scotland Act 1998, definitions would follow those set out in Section 126 of that Act, where references to the "the Parliament" mean the Scottish Parliament.

These two statements seem to be contradictory, and for the purposes of clarity I have tabled Amendment No. 1 to make absolutely clear how "Parliament" is to be understood in sub-paragraphs (9) and (11). If Section 126(1) of the Scotland Act defines "Parliament" as the Scottish Parliament, surely we need to make certain that, for these references in Schedule 1, it is the national Parliament at Westminster, and not the Scottish Parliament, before which the Electoral Commission should lay its report. I beg to move.

The Earl of Mar and Kellie

My Lords, I regret to say to the noble Duke that I think his amendment is wrong. I am happy with the idea that the expression "the Parliament" means the Scottish Parliament. I also think, in terms of the content, that it would be entirely right for the Electoral Commission to report to the Scottish Parliament about Scottish parliamentary constituencies.

Baroness Carnegy of Lour

My Lords, unfortunately for the noble Earl, what we are discussing is what the Government mean in the Bill, not what the noble Earl would like it to mean. That being the case, the clarity here is extremely important. When we are talking about who does what, and whether one Parliament or the other pays, or has to decide, or has orders laid before it, it is essential that the Bill is completely clear. I think it was the noble Lord, Lord Filkin, who replied at the last stage, and admitted that parliamentary draftsmen often thought things were a bit clearer than other people thought they were, or words to that effect. It is absolutely right to try to clarify this matter. I hope the Minister has had permission to accept this amendment, or to clarify to some extent what is meant, because the answer we had before was fairly convoluted, and this is an important point.

Lord Evans of Temple Guiting

My Lords, I am grateful to the noble Duke, the Duke of Montrose, the noble Earl, Lord Mar and Kellie, and the noble Baroness, Lady Carnegy of Lour, for their comments.

I say at the outset that the letter of the noble Lord, Lord Filkin, was an attempt to clarify what has been a confusing issue. I agree with the noble Baroness, Lady Carnegy, that the matter should be absolutely clear. I hope that during the next couple of minutes I can clarify matters to the satisfaction of the House. I, too, was slightly confused but, after reading carefully my speaking note, I saw the light. I hope that noble Lords will see the light as well.

As I say, we have sympathy with the noble Duke's concern to have clear legislation and ease of reference for those who have to use it. However, on this occasion I believe that some of the apparent difficulties may arise from the nature and purpose of the Bill not being wholly appreciated. The Bill is not a freestanding measure. We have to understand that the Bill simply replaces Schedule 1 to the Scotland Act in its entirety, I should emphasise, rather than by making specific textual amendments to the existing schedule, precisely because the draftsman saw this as the most satisfactory way to achieve clarity and readability. Since the new schedule will substitute the existing one to the Scotland Act, it has to be understood and interpreted within the context of that Act as a whole.

The noble Duke said in Committee that for ease of reference and the saving of time, the Bill's architects should ensure that throughout the Bill reference to "Parliament" should mean Westminster. Otherwise, where it did not, it should be qualified. I can reassure the noble Duke and other noble Lords that that is in fact the approach taken in the Bill, although we concede that it may not be quite as obvious as he would wish.

All references to "Parliament", without the definite article prefixed, are to be understood following established usage in legislation as referring to the United Kingdom Parliament. However, as my noble friend Lord Filkin explained in Committee, under the interpretation provision in the Scotland Act, at Section 126(1), any references to "the Parliament"—that is, with the definite article prefixed—are to be interpreted as meaning the Scottish Parliament.

I know that that may not provide sufficient clarity to assuage the noble Duke, but I hope he will accept that at least there is a system of differentiation in operation within the Scotland Act—without having to look outside the legislation itself—which consistently distinguishes between the Westminster and Scottish Parliaments.

I now turn specifically to the effect of this amendment. I have to point out—in the light of the explanation provided above—that if it were accepted, the amendment would in fact relate both provisions to the United Kingdom Parliament. However, this would defeat the intention of paragraph 3(11), which is to ensure that the Electoral Commission's report is put before the Scottish Parliament at the same time as it is submitted to the Secretary of State. So, if the amendment were accepted, the currently existing duty to inform the Scottish Parliament directly of recommended changes to its constituencies would be deleted. We believe that that would be a most serious discourtesy.

As I said earlier, I understand and have sympathy with the noble Duke's concerns here, but a consistent approach has been adopted in the drafting of this Bill—although perhaps a very subtle one—and the amendment itself would upset the purpose of the provision that it would affect. I hope that with that explanation the noble Duke will feel able to withdraw his amendment.

The Duke of Montrose

My Lords, I am very interested in the noble Lord's reply which, so far as I can see, has given a whole new power and meaning to the word "the". In Committee I suggested that subparagraph (11) should include the words "Scottish Parliament" in order to make it slightly more obvious. Sub-paragraph (11) refers to "the Parliament" but it is interesting to discover that this is a matter of differentiation.

It is a great relief to hear that the Minister was correct in referring us to the definition in Section 126(1) of the Scotland Act, because the way the argument was developing, it sounded horribly as if he had given the wrong definition. However, I believe that rather more notice will have to be taken of the difference between "Parliament" and "the Parliament". In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Duke of Montrose

moved Amendment No. 2:

Page 5, line 27, at end insert—

"Timetable of review

  1. The Boundary Committee shall complete the review within twenty calendar months of the date upon which the Electoral Commission instructed that the review be carried out.
  2. The Boundary Committee shall complete a review which does not involve a local inquiry held in respect of any region or regions within fourteen calendar months of the date upon which the Electoral Commission instructed that the review be carried out.
  3. The Boundary Committee shall carry out any reconsideration under paragraph 5(4)(a) within two calendar months of the request by the Electoral Commission.
  4. The Boundary Committee shall carry out any fresh review under paragraph 5(4)(b) within six months of the request by the Electoral Commission.
  5. Local authorities shall be required to have regard to the need to comply with the timetable laid down in this paragraph."

The noble Duke said

My Lords, we come now to how reviews are to be carried out. This amendment would impose a timetable on the process whereby the Boundary Committee completes its review, or reconsiders its review, at the request of the Electoral Commission. The principle that all government agencies should work to some form of timetable is important. It is not right that decisions which affect the livelihood, home, or education prospects of British citizens should be delayed because those charged with making them have no deadlines.

Doubtless the Minister will assure me that guidelines will be issued to remedy this situation. Guidelines, however, are not subject to review by Parliament—the Westminster Parliament, that is—and in practice are highly variable.

We have no idea from the Bill as it stands how long the procedure will take. It would be helpful at this stage if the Minister could give us some clarification or set out what he sees as the likely timing of the review and the report process.

We believe that it would be in the interests of transparency and accountability for some sort of timescale to be placed on the face of the Bill. The time limits we have suggested are perhaps not totally ideal, but it is the principle behind the amendment which we believe is important. I beg to move.

8.15 p.m.

Lord Monro of Langholm

My Lords, I rise to support my noble friend. I think that the Government have got into a bit of a muddle over timing and we would like, with this amendment, to help them get out of their shambles.

As the Minister knows, we had very little sympathy in Committee and even at Second Reading for the fact that the Government had ended up by having four different methods of voting and representation in Scotland. We will have the local government constituency, the European constituency, the Westminster constituency, and the Edinburgh constituency, each of which may have a different method of voting. Can one imagine anything more complicated for the Scottish public than four systems and four constituencies? The Westminster constituencies will be new ones, of course, so there will be five issues to upset the public in Scotland.

The Deputy Prime Minister and others have spent a great deal of time saying that we should increase the percentage of votes at elections, that we should have postal votes, and goodness knows what else. All they have achieved so far, however, is a monumental difficulty for the average person to know in which constituency, how they are voting, and who their representatives might be. We also have, in the European Parliament, voting for parties rather than individuals—which I think is totally wrong in the modern world.

The key point here is that my noble friend has recommended a timetable. If we look at the present schedule, nothing need happen before 2010, which is six years away. In the light of what I have said about the shambles of the different constituencies and voting systems, I think that we have to get on with it a great deal quicker.

While I do not necessarily say, as my noble friend says, that we have the right timing, the Minister could bring forward an amendment at Third Reading which would speed up all the procedures by the Boundary Committee and the Electoral Commission. Between those two bodies and a general letting things drift, we will find that it will be 2010 before people know where we are in relation to half of the constituencies, boundaries and systems in Scotland.

There is a great deal to be said for getting on with the review after the next election and not letting it drift on to 2010. I should have thought that two years after the next election would be more than adequate. The Government should think of a form of words and an amendment, in order to bring about a little more speed in this regard.

The Earl of Mar and Kellie

My Lords, the timetable proposed by the noble Duke is perhaps desirable, but I doubt that it needs to be on the face on the Bill. The spirit is right, but it could lead to an ill-considered rush to complete the task. Perhaps this amendment would be better placed in guidance.

Lord Gray of Contin

My Lords, I think that we are at a slight disadvantage here. We have not had the opportunity of seeing the letter which the noble Duke received, and it may be that we are wasting the time of the House by raising this issue at all.

If the Minister is to tell us that this is all taken care of in the letter, there is no point in our proceeding further. Assuming that is not the case, however, I would like to associate myself with what the noble Lord, Lord Monro of Langholm, said.

I do not think that it was intended that this amendment should be sacrosanct. It is just an indication of what we would like to see included. If the Minister has a reasonable explanation for why this amendment should not be accepted, I do not imagine my noble friend would wish to press it. We wait with interest to hear what the Minister has to say.

Baroness Carnegy of Lour

My Lords, when the Minister replies, will he bear in mind while these reviews are being undertaken that they are upsetting to local activists, because alterations to boundaries alter the way those people work and change many matters to which they must have regard when they are making submissions and so on? A review of boundaries is not a peaceful affair. The public does not worry as much about it. The Minister may well say that and he may be right, because the public do not realise what happens. But I know what it is like to live in an area which is about to move constituencies. I do not know in which area I shall have to operate during the general election, the election for the Scottish Parliament or how those areas will overlap. That is worrying. It is important to bear that in mind and the questions should not take too long. They should be as speedy as they conveniently can be.

Lord Evans of Temple Guiting

My Lords, I am grateful for the debate and I hope that what I have to say will reassure noble Lords that we are looking at not a shambles or a muddle but a well thought-out policy. The amendment would impose various timetables on the review of Scottish Parliamentary constituencies by the Electoral Commission and its boundary committee for Scotland. As was argued by my noble friend Lord Filkin in Committee, we believe that it would be quite inappropriate for this House, as part of its consideration of the Bill, to start challenging and changing matters that will in due course become part of the core responsibilities of the independent Electoral Commission and its boundary committees.

The provisions in the Bill which relate to the review of constituencies are not some quirky, novel invention. Rather, they closely replicate the well established provisions for the review of Westminster constituencies which are set out in the Parliamentary Constituencies Act 1986, supplemented as necessary by additional provisions regarding the regions for list seats in the Scottish Parliament in the Scotland Act. I should remind noble Lords that the Electoral Commission, which has a wide-ranging remit, was established by the Political Parties, Elections and Referendums Act 2000. It is a UK-wide body, independent of Government and answerable directly to Parliament.

The way in which the commission was set up and the means by which it is funded were designed to emphasise its distance from the government of the day. The 2000 Act provides inter alia for the transfer to the Electoral Commission of the functions of the four parliamentary boundary commissions. The Act requires the commission to establish four boundary committees—one for each part of the United Kingdom. It should be obvious that these four committees need to operate under the same principles and carry out their functions in a similar manner.

However, the present amendments would introduce particular requirements and constraints which would be applied to only one of the four boundary committees—indeed, to only one of the reviews which it would be required to carry out. That cannot be right. Furthermore, the proposed timetables appear far too short and restrictive and would impose controls which the parent legislation—the Parliamentary Constituencies Act 1986—on which these parts of the Bill are based, does not require for any of the Westminster boundary reviews.

I should point out that the current boundary commissions—and in future the Electoral Commission— are required only to submit reports setting out their recommendations on parliamentary constituency boundaries every eight and 12 years between their previous reports. It is important to note that beyond that requirement they have freedom to report when they see fit.

As we said in Committee, if such restrictive timetabling as is proposed in the amendment were to be appropriate—and we do not think it is—it should be imposed on all the parliamentary reviews across the United Kingdom. The Boundary Commission and other interested bodies would almost certainly have to be consulted on both the principle and details before such far reaching changes were considered for adoption. I must repeat that the Government can see no justifiable case for departing unilaterally from the accepted review mechanism, which will continue to operate in relation to Westminster parliamentary constituencies. This is not the time to make such far reaching and important changes to the review of matters that go to the heart of the democratic process. Having heard this explanation, I hope that the noble Duke will withdraw his amendment.

The Duke of Montrose

My Lords, I listened to what the Minister said. I presume that he realises that we have not in any way questioned the timescale for the reviews of parliamentary constituencies being limited to eight to 12 years. We are saying that when the Electoral Commission thinks that there should be a review, it should take place within a certain limited time.

The Minister emphasised that such deadlines are not contained in any of the areas in which the various Boundary Committees will work. It is because of that that we have raised the matter at this time, because it will be felt equally by the public in all the other regions in which Boundary Committees will work.

I suppose that we have the power if we wish to put such a provision in a Bill for the Scottish constituencies, because it would make the people who have to operate the provisions for Scotland far more comfortable. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Duke of Montrose moved Amendment No. 3: Page 6, line 4, leave out "purporting to be The noble Duke said: My Lords, this matter was dealt with to some extent in the letter that the Minister sent me. It probes the drafting of paragraph 6(8) which refers to the validity of Orders in Council. I raised the issue in Committee. When I challenged the Minister about what "purporting to be" meant, he commented: I will check it, but I assume that the phrase takes its natural meaning from the Bill: 'seeming to mean' and 'appearing to mean'.—[Official Report, 21/6/04; col. 1097.]

However, in his letter the Minister brings out the point that "purporting to be" is meant to apply if the order is challenged. There is nothing else in the Bill that deals with the challenging of Orders in Council. Perhaps we are supposed to take that interpretation, but our concern is that "purporting" has the connotation of something appearing to be what it is not. I mentioned in Committee the possibility of a counterfeit order. As paragraph 6(8) is drafted, any counterfeit order could not have its validity called into question in legal proceedings.

According to paragraph 6(8), the Order in Council being challenged would have been approved by a resolution of each House of Parliament and so would already have been open to being challenged there. If the Minister would also like to include in the text, "and purported to have been approved by both Houses of Parliament", that would seem more logical.

I still do not see what case can be made for including the words "purporting to be" in the Bill because the order by that time has been approved. If we remove those words the Bill will be much clearer and easier to interpret. I beg to move.

The Earl of Mar and Kellie

My Lords, the noble Duke's amendment implies that "purporting to be" is an unhelpful expression. I believe that it belongs to the same context as the expressions "pretending to the throne" or "a pretender". The old meaning was clear: the person had a good claim to the throne. Therefore, the phrase "purporting to be" may be rather quaint but it means "is rightfully derived from".

Baroness Carnegy of Lour

My Lords, I did see the letter. I bumped into my noble friend and he very kindly gave me a copy of it. I was fascinated by the part that covered this subject because it almost confirmed what we were saying from this side of the House about the word "purporting". It seems that that word must be used because, if a Minister has a shot at making an order and it is challenged and falls, it is an order that never was. Therefore, it is all right to say that it was "purporting to be" an order. It may be an order which turns into an order. That seems to be what this is all about. I was fascinated by this matter. I have always wondered what the word "purporting" means and that seems to be it—it allows for an order to fall. Will the Minister confirm that that is correct?

Lord Evans of Temple Guiting

My Lords, before I speak to Amendment No. 3 moved by the noble Duke, I meant to say that we would arrange for the noble Lord, Lord Gray, to receive a copy of the letter from my noble friend Lord Filkin. A copy went to the noble Duke, the Duke of Montrose, and to the noble Earl, Lord Mar and Kellie, and a copy was placed in the House Library. But I think that it will be best if tomorrow we arrange for the letter to be sent to everyone who has taken part in this debate. If we need to discuss certain issues further, we shall be happy to do so outside the Chamber or at the next stage of the Bill.

The words "purporting to be made" have caused some confusion. It took two discussions with officials and another one with a QC for me to understand what it meant. I always thought that "purporting" meant pretending or whatever. But I think that we have to consider this matter in a legal context. The word is being used in this clause but it is used in many orders and it has an accepted definition.

I shall try to respond to the concern raised in Committee and again today about the inclusion of terminology which refers to an Order in Council "purporting to be" made. The noble Duke argued that either an order had been made under this schedule or it had not. He raised, as he has done again today, the appalling prospect of "counterfeit" orders which could not be called into question or challenged.

I hope that I can reassure the noble Duke and other noble Lords that there is little or no chance of such a fraudulent or malicious order being passed by this House. If Parliament were ever to pass an order which was in some way wrong, it would always be open to the Government and Parliament to undo that error.

However, that is not the background to this provision. The noble Duke received a letter in which my noble friend Lord Filkin explained why Orders in Council were described as "purporting to be" made. For the benefit of those who have not seen the letter, I shall repeat the reason that it sets out.

As my noble friend indicated, the purpose of a challenge to the validity of an order would be to have it declared invalid. If there were claimed to be an error or some procedural defect in the making of an order, it could be argued that, as a matter of law, the order had not been made and was legally invalid. A tiny error could mean that the order was legally invalid. Therefore, if the amendment were carried, such an order would not be protected from court scrutiny as the amendment would protect only orders. It could be argued that legally the instrument being challenged was not an order.

As orders that have been approved in draft by resolution of each House of Parliament should be above question in legal proceedings, the draftsman is required to protect documents that purport to be an order to prevent this argument being used to introduce scrutiny in legal proceedings. Orders are therefore all described as purporting to be made.

If this phrase were not included, it would open the Order in Council up to—possibly mischievous—legal proceedings in the courts in some circumstances. This could have serious consequences for the conduct of future elections while the matter remained under dispute. The intention therefore is to prohibit such a challenge where the order has been approved by Parliament.

But as I said earlier, if in the very unlikely event that Parliament should ever become concerned about any aspect of an order, then of course we could look into this and rectify the matter. That would be for Parliament to decide upon and not the courts.

I hope that this explanation is clear. I would like to stress that this word is not being used simply in this Bill; it is used with all orders. I hope that the noble Duke, the Duke of Montrose, will withdraw his amendment.

The Duke of Montrose

My Lords, I thank the noble Lord for that reply.

I am sorry if we have bored any lawyers who are present but I found it absolutely fascinating. The noble Lord has answered the misunderstanding that we found in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Duke of Montrose

moved Amendment No. 4:

Page 10, line 2, leave out from beginning to "aim" in line 3 and insert "It shall not be the duty of the Electoral Commission or (as the case may be) a Boundary Committee to" The noble Duke said: My Lords, I can be extremely brief with this final amendment. Again, the Minister has addressed this matter in his letter.

Throughout the Committee stage of this Bill when we queried some of the points of detail in Schedule 1, the Minister returned again and again to the sanctity of the Parliamentary Constituency Act 1986. Interestingly, he said: The electoral arrangements and the ways in which the boundaries of constituencies are reviewed separate from government—dealt with in the Parliamentary Constituencies Act—should not be changed for one part of the United Kingdom on the back of a specific piece of legislation, even when it is about such an important part of the United Kingdom—namely, Scotland".—[Official Report, 21/6/04; col. 1096.]

In reference to the rules which we have in Schedule 1, I now understand that they are based on the same rules contained in the Parliamentary Constituencies Act. Rule 2(2) mirrors rule 5 of that former Act and rule 3 mirrors rule 6. For rule 4, however, the idea is similar but the drafting of the rule differs from that of rule 7 in the 1986 Act.

Our amendment would change the drafting of rule 4 to make it identical to rule 7 of the 1986 Act. In his letter the Minister refers to the change as being in the modern style. Perhaps he could explain to us what difference the variation in the drafting makes? Is there an aversion in the modern style to the wording that mentions the "duty" of the Electoral Commission? I almost expect that soon the wording would include the word "choice" rather than "duty". I beg to move.

The Earl of Mar and Kellie

My Lords, this amendment gives a rather harsh replacement to the original text. It is important that rule 4 be retained as an override over the previous three rules. My previous Western Isles amendment revolved around the powers in rule 4.

Lord Evans of Temple Guiting

My Lords, I appreciate that the wording in the amendment replicates that which is used in paragraph 7 of Schedule 2 to the Parliamentary Constituencies Act 1986. On this occasion I acknowledge that we cannot fall back on the argument that the provisions in this Bill are the same as those in the 1986 Act and therefore must not be changed.

The noble Duke suggested in Committee that rule 4 in the Bill appeared to be a slightly racier version of the similar provisions in the 1986 Act and he thought that not aiming to give full effect was less instructive and produced something that was confusing and nebulous. I am afraid that I have to disappoint him. This provision in the Bill is not materially different from that in the 1986 Act. As my noble friend Lord Filkin indicated to the noble Duke in his recent letter to him, having consulted the draftsman, there is no difference in meaning between rule 4 in the Bill and a similar rule in the 1986 Act. It is, as the letter said—the noble Duke has repeated it—simply drafted in a modern, legal style. I hope, given that there is no difference, that the noble Duke will not press his amendment.

The Duke of Montrose

My Lords, I thank all noble Lords who participated in supporting my amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.