Scottish Parliament (Elections etc.) Order 2010

My Lords, I support and welcome this order, despite the defects. I am grateful to the Joint Committee on Statutory Instruments for its sixth report and the work it has done in identifying these defects. Together with other Members of your Lordships’ House, I received a letter from a man who has been described in the other place as an SNP lawyer. It contains a briefing that sets out a number of points relating to drafting in areas where this order could be improved. I do not support the general thrust of the argument that we should have taken this opportunity to go beyond consolidation of the legislation and gone into substantial revision in interpreting Mr Gould’s thinking and changing parts of the existing legislation. That would have involved the whole scope of consultation which was not possible in the time that was available. I am pleased that the coalition Government have continued the work that was started under the previous Government—and indeed that I started as Secretary of State. In welcomed Ron Gould’s recommendations in the main, although I did not welcome or accept all of them. I am pleased the coalition Government are setting about the painstaking and difficult work of implementing those recommendations. I cannot avoid making one or two points because I think they have to be on the record. As I have said, I was the Secretary of State who received Mr Gould’s report via the Electoral Commission. I have to say that the environment in which that report was received was unedifying in many ways. Many people in Scottish politics were trying to avoid responsibility for what had happened in May 2007, and there was one particular pretty appalling attempt to load all the blame onto one individual. I will come back to that in a moment. The Gould report, read properly, did not reflect well on Scottish political parties, or on the machinery that existed for conducting elections. It clearly was not able to accommodate the level of complexity that it had imposed upon itself by decisions and was not able to conduct the elections on the day—the joint elections with complicated ballot papers—in a way that ensured that everybody who turned up and properly presented themselves could vote. That was a collective failure, but there were many people who were scattering to the winds and re-writing history to avoid their responsibility for that time. However, problems in the machinery were identified, and I think that those problems were shared by all. I do not exclude the Electoral Commission or any of the other organisations, individual returning officers or some local authorities; everybody bore a share of that responsibility. First, I am concerned at the level and scale of errors in the draft. That is not because of their effect—because, as the noble and learned Lord said, they have no effect and will not in any sense impede a proper or fair election in the next Scottish parliamentary elections. They may be a symptom of an underlying problem and that should be examined. It is now the responsibility of the coalition Government—indeed, of those people who were very quick to try to blame political figureheads but are now the political figureheads of that system—to present again from that process and infrastructure, which is not of the standard that we would expect. Some significant and difficult questions need to be asked of that infrastructure. On my second point, this man who has been referred to as an SNP lawyer has a decent point. There appears to have been a lack of consultation on the draft of the order, although there may have been a consultation on a draft. I have not been able exhaustively to investigate who was consulted about what approximated to the draft that has been presented to Parliament, but coincidentally today, as I was making my way from this House to my office, I bumped into a man who I know very well and who I would call a friend of mine who has for years for the Law Society of Scotland kept an eye on legislation with a Scottish interest as it is presented to this House. We all know Michael Clancy, and we all regard him very highly. He said to me, ““We were not consulted””. I see other noble Lords nodding to indicate that they were told the same thing by him; indeed, he told me that he had been contacted by other noble Lords. If the Law Society of Scotland, which is diligent in these matters, and which could have identified some of the problems, was not consulted, who was consulted on the draft that is now presented to us? The Minister knows that I have the highest regard for him. He has been candid in his admission of those problems, and I am sure that he will respond positively. However, that suggests to me that something is fundamentally wrong here. That may be nearer to what caused the problem in May 2007 than all the stuff that grabbed all the headlines. There should be some calm reflection. We will see this order through, we will see these parliamentary elections conducted as well, I hope, as were the UK elections in Scotland—probably by the same people—but there should be some calm reflection and a period of review before we hand this over through the Scotland Act to the Scottish Parliament, or it will just inherit the same machinery. We should look at the machinery to see if it is performing properly. I suspect that we will find things that could be improved, and I think that, as parties which were in government during the relevant period, we should share responsibility for its existence. I am not seeking to apportion blame to any individual party, but it is the responsibility of the parties now in government, and they have the chance to deal with it. I am slightly at odds with the noble and learned Lord, Lord Wallace, because I am not so sanguine in dismissing the failure to meet the six-month window. Not conducting elections with legislation that is less than six months old was Ron Gould’s fourth recommendation. The recommendation was not that it should be put out in draft form for consultation or discussion; it was that we do not ask the machinery of elections to operate legalisation that it is less than six months old. That was clearly his recommendation. That window has been missed. It may have been missed for very good reason, and I have no doubt that if we tracked it back to my acceptance of Ron Gould’s recommendations, we would discover that some of that delay has its roots in things that happened when I was the Secretary of State for Scotland or when one of my predecessors from my party was Secretary of State. I accept that. However, it is not good enough that a fundamental recommendation that was accepted by government and is now a responsibility borne by this Government has been missed by us collectively. The noble Lord was adept at saying, ““We have kind of met this time limit by doing these things””, although I did not think his heart was entirely in it. However, if it turns out that the draft that was circulated some time ago is significantly different from the draft that became the order, that, although not misleading, does not really help to explain whether we are getting this right, and it feeds back to the first point I made. I shall move on as I do not want to detain your Lordships' House too long in relation to this, but some of my DNA is on this legislation, and I want to make sure that if it is found at the scene of a crime in future, there is evidence to explain my views. In preparation for this short debate, I refreshed my memory about what I said in the other place as Secretary of State in response to Ron Gould’s recommendations and which of them I accepted and which I rejected. I came across this little vignette, which I think I should share with the House because I want to put it on record. In response to my Statement, David Mundell, who is now the Parliamentary Under-Secretary in the Scotland Office and the Minister who dealt with this order in the House of Commons in what I thought then and still think was a comparatively disgraceful way, went hunting the head of my right honourable friend Douglas Alexander, who had been Secretary of State for Scotland in May 2007, and made some unworthy political points. He said: "““The Secretary of State knows that when candidates and agents break the rules for their advantage they go to prison. What sanction does he propose for Ministers who seek to make rules for their partisan advantage?””.—[Official Report, Commons, 23/10/07; col. 168.]" He was wrong to try to heap all the blame on to one man, and he is now living proof of the fact that the assertion that he made was wrong, too. It is not the case, and he knows it, that when candidates break the rules for their advantage, they go to prison. This is a lesson to all of us. What we say in this House and in many other places is now recorded for posterity, and there is a significant degree of irony in this for Mr Mundell which, from reading in Hansard what he said when he introduce the order, was perhaps lost on him, but it should not be. On some occasions, we should exercise a degree of reflection before we let our political heads rule our political mouths. Finally, I regret that, despite the overwhelming advice of Ron Gould, at the Scottish parliamentary elections we are again going to be faced by a complicated and unnecessary double event—if the coalition Government get their way, we are going to have a referendum at the same time. People are very good at cherry-picking Mr Gould’s words. They did this in the other place, and I hope that the Minister will resist the temptation to do this in response to me. It is the case that Ron Gould sent a memorandum to the Scottish Affairs Select Committee in which he said, among other things, that he thought that a contemporaneous referendum and Scottish Parliament election could happen. But if one reads the whole of the memorandum, he is still, in analytical terms and in his advice, in exactly the same position as he was when he reported to the Electoral Commission and, through it, to the Scotland Office and Parliament in 2007. From all his years of experience, he recommends that we do not do this. It is doing a significant disservice to him to have him prayed in aid in support of the quite disgraceful decision by the coalition to breach a principle, which has been a principle of the way in which we have conducted our electoral affairs for a long period of time; namely, that we do not use one set of elections to generate support for, or to uplift the interest in, another electoral decision. I will not crow over this and I will not seek people’s heads if it comes about, but I say to the coalition that if it gets its way and does to Scotland the disservice to their electoral processes that dominating them by a referendum will do, the people of Scotland will take a long time to forgive the parties which make up that coalition. The Conservative Party already knows what it means for the people of Scotland to take a long time to forgive them, but the Liberal Democrats will learn this very quickly. It is still not too late to think again about combining these two events on the one day.