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Lord Callaghan of Cardiff: No!

The Chairman of Committees: My Lords, is it your Lordships' pleasure that the amendment be withdrawn?

Noble Lords: No!

On Question, amendment negatived.

Lord Falconer of Thoroton moved Amendment No. 2:

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

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

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the term "proceedings" in Clauses 2, 14 and 20 is now ambiguous. The purpose of the amendments is to bring clarity to the drafting. I beg to move.

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

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 He said that the matter should be withdrawn from the Marshalled List and then refused to vote.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

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

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

On Question, amendment agreed to.

3.45 p.m.

Clause 3 [Time of ordinary elections]:

Lord Falconer of Thoroton moved Amendment No. 3:

Page 2, line 32, leave out from ("may") to first ("the") in line 37 and insert ("make provision for--
(a) any provision of, or made under, the Representation of the People Acts, or
(b) any other enactment relating to elections of community councillors,
to have effect with such modifications or exceptions as").

The noble and learned Lord said: My Lords, Amendment No. 3 arises from your Lordships' approval at Committee stage of an amendment enabling the

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

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

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

Amendment No. 3 therefore enables the Secretary of State, when making an order under Clause 3(4) of the Bill, to modify or omit provisions of Section 15(4) of the 1985 Act to the extent that where otherwise a cost is to be apportioned equally between elections the order may specify that the apportionment may be different but only to the advantage of a community election. The modifying provision could not re-order the apportionment which fell to the local authorities to be any more than the existing 50 per cent. It could however specify that the apportionment should be set as low as

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nil. The precise level of the apportionment would have to be agreed by the Secretary of State and the other interested authority (the Home Office or assembly if the community council elections were combined with assembly elections) in advance of the order being made. Amendment No. 3 ensures that the Secretary of State is able to take action as appropriate. I repeat that this provision can be used only in circumstances where the Secretary of State has decided to postpone the community council elections and any changes must be appropriate in connection with the postponement. He may not decide to change any provision simply because he may have a mind to. The order-making power will not enable him to re-write the rules governing the conduct of the community council elections. Once the assembly has been established the Secretary of State will be able to exercise that power only if he has first consulted the assembly so that it too would be a party to any proposal to make consequential changes to any related statute procedure.

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

On Question, amendment agreed to.

Clause 4 [Voting at ordinary elections]:

Lord Mackay of Ardbrecknish moved Amendment No. 4:

Page 3, leave out lines 5 to 7.

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

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

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

The point about the Belgian system is that one has the option of voting for a party or an individual. The amendments I have tabled remove the chance to vote for the party. For example, if one wishes to vote for Conservative candidates one must vote for a Conservative candidate and not for the Conservative

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Party as such. After the votes are cast the first action of the returning officer would be to add up all the votes cast for the candidates of each party, and the total vote would then be the total vote for the party. These total party votes would then be used, via the d'Hondt system, to calculate the number of additional members that each party receives.

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

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

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

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

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