House of Lords - Parliamentary Voting System and Constituencies Bill

Parliamentary Voting System and Constituencies Bill - Constitution Committee Contents

Parliamentary Voting System and Constituencies Bill

Introduction

1. The Constitution Committee is appointed "to examine the constitutional implications of all public Bills coming before the House; and to keep under review the operation of the constitution." In carrying out the former function, we endeavour to identify questions of principle that arise from proposed legislation and which affect a principal part of the constitution.

2. In this report we draw the attention of the House to the Parliamentary Voting System and Constituencies Bill. The Bill was introduced in the House of Commons on 22 July 2010; it received its second reading in that House on 6 September; committee stage took place over five days on the floor of the House of Commons between 12 and 25 October; and the Bill completed its Commons stages on 1 and 2 November. It was introduced in the House of Lords on 3 November and its second reading debate in this House is scheduled for 15 November.

3. The Bill's progress through the House of Commons was controversial. We note in particular that the House of Commons Select Committee on Political and Constitutional Reform published in October a markedly critical analysis of the Bill.[1] In preparing this report we have taken into consideration the evidence received by that Committee, as well as evidence separately received by us from the Deputy Prime Minister, the Rt Hon Nick Clegg MP, and the Minister for Political and Constitutional Reform, Mark Harper MP.[2]

4. We have also taken into consideration the Government's Programme for Government which, under the heading of political reform, stated that: "We urgently need fundamental political reform, including a referendum on electoral reform, much greater co-operation across party lines, and changes to our political system to make it far more transparent and accountable."[3]

5. In his evidence to us the Deputy Prime Minister discussed how all the different elements of the Government's proposals on political and constitutional reform were linked. "[T]here is an emphasis in everything that we are proposing on greater accountability in the manner in which we conduct ourselves and the way in which politics is conducted, greater legitimacy in the political institutions that seek to represent people, and breaking up excessive concentrations of power and secrecy. Whether it is the power of recall, whether it is fixed-term Parliaments, whether it is giving people the right to have a say over the electoral system, whether it is pushing forward with House of Lords reform, whether it is reforming party funding, all those things together represent a significant step towards greater legitimacy, greater accountability and greater openness in the way in which our politics is conducted."[4]

6. He went on to say: "it is an unambiguous judgment on our part that reducing the power of the Executive, seeking to boost the power of the Legislature, making the Legislatures more accountable to people ... collectively introduces the mechanisms by which people can exercise greater control over politicians."[5]

Matters of process

7. The Bill's provisions are concerned with two distinct aspects of constitutional reform: first, a national referendum on the voting system for elections to the House of Commons (Part 1); and second, the number, size and boundaries of parliamentary constituencies (Part 2). The Deputy Prime Minister has described these "as simply two issues that relate to how we are elected to this House".[6] There is no reason in principle why both issues need to be provided for in the same Bill.

8. The Bill is subject to a tight legislative timetable. This is a result of the Government's stated aims of holding the referendum on the voting system in May 2011 and having the review of parliamentary constituencies completed and implemented in time for the next UK general election (which the Government have said will be held in May 2015).[7] The detailed policies contained in the Bill were not subject to any prior public consultation (for example, a Green or White Paper). Nor has there been any pre-legislative scrutiny. We highlight in this report some important issues which in our view should have been subject to consultation and scrutiny before the Bill was presented to Parliament; these issues mostly affect Part 2 of the Bill.

9. The Deputy Prime Minister acknowledged the lack of scrutiny, arguing that if the Government were "to introduce these changes before the next general election, we must move fairly rapidly".[8] However, this rapid pace of change is not supported by an all-party consensus on the major issues of policy contained in the Bill.

10. We recognise that there are circumstances in which the Government does need to move quickly, and that the Government made a judgment about the referendum date which required Part 1 of the Bill to be introduced at the beginning of the legislative session. However, we do not believe that this was appropriate for the more detailed provisions of Part 2.

11. We regret the fact that this Bill has not been subject to either pre-legislative scrutiny, or to prior public consultation.

12. In general, we regard it as a matter of principle that proposals for major constitutional reform should be subject to prior public consultation and pre-legislative scrutiny. We recognise that there may exceptionally be good reasons for departing from this principle, but the perils of doing so are well illustrated in the present Bill. The case for proceeding rapidly with one Part of this Bill is far stronger than for the other.

Part 1: voting system for parliamentary elections

13. Clause 1 provides that a referendum is to be held on 5 May 2011 on whether the current first-past-the-post electoral system used for parliamentary elections should be replaced with the alternative vote system (AV). Clauses 2 to 7 make provision as to entitlement to vote in the referendum and as to the rules under which the referendum is to be conducted. The effect of clause 8 is that the result of the referendum will be binding.

14. The variant of AV proposed is the optional multi-preference system. Under this system voters do not have to vote for more than one candidate (hence, "optional") but, if they wish to do so, they may vote for as many candidates as are on the ballot paper (hence, "multi-preference"). This voting system is not currently used for any other public election in the United Kingdom, although a similar system, the Supplementary Vote, is used for mayoral elections in London and elsewhere.

15. The following issues arise with regard to these provisions: (1) whether there should be a referendum on this issue; (2) the wording of the referendum question; (3) clashes with elections to the devolved institutions; and (4) whether the Bill provides sufficient time for the holding of the referendum by the proposed date. We consider each of these in turn, below.

16. Our analysis of these issues is shaped by the conclusions of our report of last session, Referendums in the United Kingdom.[9] The report was debated in the House on 12 October.[10] In it we made a number of findings and recommendations relevant to the present Bill, as follows:[11]

There are significant drawbacks to the use of referendums. In particular the ad hoc manner in which they have been used in the United Kingdom, often as a tactical device, is to be regretted. Where possible, cross-party agreement should be sought as to the circumstances in which a referendum should be used. (paragraph 62)
Despite these drawbacks, however, there is an argument that if referendums are to be used, they should be used in relation to fundamental constitutional issues. No definitive list of such issues can be compiled, but among them is changing the electoral system for the House of Commons. (paragraph 94)
Referendums should not be held on the same day as General Elections. For other elections, there should be a presumption against holding referendums on the same day as elections, but this should be judged on a case-by-case basis by the Electoral Commission. (paragraph 145)
The Electoral Commission should be given a statutory responsibility to formulate referendum questions which should then be presented to Parliament for approval. (paragraph 154)
The presumption should be in favour of questions posing only two options for voters but we recognise that there may be occasions when multi-option questions are preferable. (paragraph 159)
There should be a general presumption against the use of voter turnout thresholds and supermajorities. (paragraph 189)

Throughout our report we recognised that the statutory framework governing referendums, the Political Parties, Elections and Referendums Act 2000 (PPERA), had not yet been tested in a nationwide referendum and that, after this has happened, thorough post-legislative scrutiny should be undertaken.

SHOULD THERE BE A REFERENDUM?

17. In the light of the above recommendations, while we hold to the view that there are significant drawbacks to the use of referendums, in our judgment reform of the voting system does constitute a fundamental constitutional issue on which a referendum may be judged to be appropriate. We note that there is a general consensus that such an issue should be made subject to a referendum before any change is made.

THE WORDING OF THE REFERENDUM QUESTION

18. We note that the Electoral Commission, in line with its statutory duty under section 104 of the Political Parties, Elections and Referendums Act 2000, considered the proposed wording of the referendum question and that it recommended an alternative wording, primarily to simplify the language used.[12] We welcome the fact that the Bill was amended in the House of Commons to give effect to the Electoral Commission's suggested wording. We continue to hold the view that it should be a legal requirement that the Electoral Commission should formulate any referendum question, and that this formulation be presented to Parliament for approval.

THE DATE FOR THE REFERENDUM

19. The date for the referendum specified in the Bill, 5 May 2011, is also the date on which elections for the Scottish Parliament, for the National Assembly of Wales and for the Northern Ireland Assembly will be held. The Government stressed the importance of the principle of "Communication and Consultation" in the Devolution Memorandum of Understanding between the UK Government and the three devolved administrations.[13] However, following the announcement of the date in the House of Commons, the Deputy Prime Minister did not confirm whether any prior consultation with the devolved institutions took place before the date of the referendum became public.[14]

20. The Scottish Executive have expressed the view that holding the referendum on 5 May 2011 "shows a lack of respect for the devolved administrations", and that it "undermines the integrity of elections to the Scottish Parliament".[15] The Welsh Assembly Government is likewise opposed to holding the referendum on the same day as the Assembly elections.[16]

21. We note the concerns expressed by the Scottish Executive that media coverage of, and public debate around, next year's elections to the Scottish Parliament is likely to be affected by the coverage of the simultaneous AV referendum and this could potentially distort the outcome.[17] It could equally be the case that coverage of the elections to the devolved institutions could suppress coverage of the referendum debate.

22. The Government have stated that it would cost around £30 million of additional public money to hold the referendum on another date.[18] The Deputy Prime Minister argued that there was no justification for doing so and that "it is disrespectful to people to assume that it is too complex to ask them to vote on a referendum on the same day as they are being invited to vote anyway."[19]

23. We note the Government's arguments in favour of combining the two polls. However, we regard it as regrettable that the Government should have failed to consult appropriately with the devolved institutions on the timing of the referendum.

THE DATE OF THE REFERENDUM—ADMINISTRATION TIMETABLE

24. In relation to the administration of the referendum, the Electoral Commission believes that, "on balance … it should be possible to deliver the different polls proposed for 5 May 2011". It is to be noted that this conclusion is expressly contingent upon "the key practical risks" being "properly managed".[20] The Electoral Commission has several times repeated that "the rules on how the referendum will be conducted must be clear from at least six months in advance".[21] It has added that "provided the Bill receives Royal Assent in time to allow a referendum period of at least 10 weeks, there will be adequate time for the Commission to register campaigners and designate lead campaigning organisations, and for campaigners to put the arguments to voters."[22] Given that the Bill was introduced in the House only six months before the proposed referendum date, there is a danger that these deadlines will not be met.

25. The Minister for Political and Constitutional Reform told us that this timetable would not fetter the House's consideration of the Bill, but "if your Lordships made significant changes, [the Electoral Commission] would have to consider those and come back and express a view about what that meant for the conduct of the referendum."[23] He was unable to tell us what, precisely, would count as a "significant" amendment.[24]

Part 2: parliamentary constituencies

THE SIZE OF THE HOUSE OF COMMONS

26. Clause 11 of the Bill provides for the size of the House of Commons to be reduced from its current number of 650 constituencies to 600.

27. In their respective manifestos for the 2010 General Election the Conservative Party proposed to reduce the size of the House of Commons by 65 seats (to 585) and the Liberal Democrat Party proposed a reduction of 150 seats, albeit proposing that such a reduction would be contingent upon the introduction of the Single Transferable Vote electoral system (a form of proportional representation). The Political and Constitutional Reform Committee heard evidence from bodies such as the Hansard Society, Democratic Audit and Unlock Democracy who argued that the choice of 600 was arbitrary, lacking a rationale and, in any event, put the cart before the horse.[25] It was argued that a more sensible approach would have been firstly to review the functions of the House of Commons and secondly to form a view as to the appropriate number of MPs required to perform those functions.

28. We pursued with the Minister for Political and Constitutional Reform whether there was a rationale for the number chosen. He stated that the number was not based on "a horse-trading exercise" of the numbers stated in the two parties' respective manifestos[26]. He also argued that the Government considered that the reform would "not qualitatively change the nature of the representative role that Members of Parliament carry out."[27] However, he acknowledged that this was a judgment: "I am not going to pretend that there is a magic science to all this."[28]

29. We conclude that the Government have not calculated the proposed reduction in the size of the House of Commons on the basis of any considered assessment of the role and functions of MPs.

30. The Political and Constitutional Reform Committee also argued that the reduction in MPs would appear to be drawn "entirely from the backbenches, with no proposals to reduce the number of ministers or of others on the Government payroll sitting and voting in the House, thus increasing the extent of executive dominance of Parliament".[29]

31. An amendment was moved during the Committee stage of the Bill in the House of Commons so as to reduce the maximum number of ministers permitted to sit in the Commons proportionately to any reduction in the overall size of the Commons. However, the Government opposed the amendment and it was defeated.[30] Although that amendment would have reduced the maximum number of ministers in the Commons, it would not have reduced the number of parliamentary private secretaries permitted to sit in the House of Commons and might not therefore have reduced the overall size of the so-called "payroll vote" in that House; nor would it have dealt with any knock-on consequences in terms of the number of ministers in the House of Lords.

32. The Deputy Prime Minister recognised that "There is a strong argument that says that you must look at this and adapt the number of people who are on the government payroll so that you do not get a lopsided imbalance between those on the payroll and those holding them to account. I totally accept that."[31] The Minister for Political and Constitutional Reform also accepted that "there is a problem that needs to be dealt with" but argued that this Bill was not "the right vehicle to do it in".[32] He stated that the Government would bring forward proposals during this Parliament.[33]

33. We agree with the thrust of the Minister's evidence to us that the relevant issue in relation to the relationship between the executive and Parliament is the Prime Minister's overall patronage in Parliament (and particularly in the House of Commons). The number of ministers in the Commons in proportion to the size of that House is only one element of this, albeit an important one.

34. The argument that this issue needs to be fully considered, taking into account all possible consequences, equally applies to the question of the overall size of the House of Commons. The Government have embarked on one element of Commons reform (size of membership) without a proper review of that House's relationship with Government.

35. The size of the ministry in the House of Commons affects fundamentally the constitutional relationship between Government and Parliament. The provisions on reducing the size of the Commons therefore contradict the Government's stated aims of "reducing the power of the Executive [and] seeking to boost the power of the Legislature."[34]

36. We conclude that the Government have not made a proper assessment of the impact which the reduction in the size of the House of Commons may have on the relationship between the executive and Parliament. This is an unsatisfactory basis on which to embark on fundamental reform of the legislature. We are concerned that the Bill could possibly result in the Executive's dominance over Parliament being increased.

THE TIMING OF THE BOUNDARY REVIEWS

37. Clause 10 provides that the four Boundary Commissions (for England, Scotland, Wales and Northern Ireland) must each complete a boundary review before 1 October 2013 and then again every five years (in contrast with the 8-12 year cycle currently employed). The Boundary Commissions have confirmed that this timetable is achievable, although additional resources will be required, particularly for the first such review.[35]

38. The Minister for Political and Constitutional Reform informed us that the Government "think the process for boundary reviews should be quicker, but also that it should happen more frequently, so that boundaries are kept more in line with shifts in electors than has previously been the case. Clearly, the first review will be a significant one ... Subsequent to that, the trade-off for Members of the House of Commons is that boundary reviews will be more frequent but less disruptive".[36]

39. The Fixed-term Parliaments Bill is designed to result in an election being held in May 2015 and every five years thereafter (subject to any early dissolution). The combined effect of these two Bills is therefore that each review will be concluded 18 months prior to the expected date of the general election.

40. We note two issues with this timetable. Firstly, a period of 18 months may cause difficulties for political parties in forming local associations and in choosing candidates for new constituencies. This will be a particular problem in 2013 when the reduction in number of seats and equalisation of size of constituencies will result in significant changes to most constituencies. The Political and Constitutional Reform Committee were concerned that it was "not clear whether political parties have the necessary resources and resilience at a local level to adapt successfully within this timeframe to contesting new constituencies across the whole of the country."[37] We share this concern.

41. Secondly, if there is an early dissolution under a Fixed-term Parliaments Act the combined timing of the reviews and UK general elections may become even more strained. This will be particularly so if a Parliament is dissolved one year early which would result in a review always being completed just six months prior to the next election.

42. The Deputy Prime Minister argued that one of the reasons for bringing the Bill forward quickly was precisely the need to ensure that candidates would know the shape of their constituencies 18 months in advance of the election.[38] However, the Minister for Political and Constitutional Reform dismissed concerns over timing of reviews arguing that the current boundary reviews are not synchronised with parliamentary terms and that they have sometimes taken place very near to a general election: "I do not think it is important that they are absolutely synchronised. We will see how it works."[39]

43. We do not consider that the Government have given sufficient attention to the relationship between this Bill and the Fixed-term Parliaments Bill in respect of the timing of reviews and UK general elections. The Government should set out how they propose to meet the need for parties, candidates and electors to know the shape of their constituencies a sufficient length of time in advance of each general election.

EQUALISATION

44. Clause 11 changes the basis on which the Boundary Commissions are to work, requiring the equalisation of parliamentary constituencies. This is currently a relevant criterion for the Boundary Commissions to take into account, but is only one of several such criteria; the Bill will give paramountcy to this criterion over all others.

45. Only two exceptions to the principle of equalisation are allowed for in the Bill. Firstly, the remote island constituencies of Orkney and Shetland and of Na h-Eileanan an Iar will remain as they are, despite the fact that the size of the electorate for these seats is substantially smaller than that for other constituencies. Secondly, no constituency will be larger than 13,000 square kilometres, even if this results in a smaller than normal electorate.[40]

46. Applying the new rules as to equalisation will necessitate the creation of constituencies crossing regional and county boundaries; in addition, many more constituencies than at present will cross local authority boundaries. This has significant administrative and political consequences, in terms of such matters as electoral administration and party political organisation. The pace of change is unlikely to lessen such administrative and political challenges and, indeed, seems likely to make them more difficult to manage.

47. The Political and Constitutional Reform Committee heard evidence from Democratic Audit that the new rules as to equalisation were being imposed "without any attempt to form a consensus" and without the Government having first investigated what people actually want from representation.[41] There did not appear to be any evidence that the electorate considers equalisation to be significantly more important than, say, geographical, customary or traditional boundaries.[42] Pre-legislative scrutiny and public consultation would have enabled a better assessment of whether the new rules as to equalisation are overly rigid.

WALES

48. Due to their current smaller than average size, the number of Welsh constituencies will be reduced by 25 per cent, from 40 to 30 seats. The Deputy Prime Minister argued that, for a number of reasons, Wales is currently overrepresented in the House of Commons and that "One either works on the basis of the principle of trying to equalise constituencies so that, broadly speaking, votes are valued in the same way across the whole of the United Kingdom, or one does not."[43] He concluded that if there is to be an equality of votes, there will need to be a reduction in the number of Westminster seats for Wales.[44]

49. The Minister for Political and Constitutional Reform stressed the Government's view that it was "simply not justifiable" that there was "an enormous disparity" between the size of constituencies in Wales and those in the rest of the country.[45] He added that "in the debate, we have not heard any good reasons, apart from sticking with the status quo, why that should be the case."[46]

50. However, the Commons Welsh Affairs Select Committee has concluded that "it is important that the interests of each region of the United Kingdom are properly heard at Westminster."[47] We also note their view that "the unique position of Wales in terms of its geography, culture and history has long been recognised in its Westminster constituencies"[48] and their recommendation that the Government amend the Bill "to permit the Boundary Commission to give greater weight to these factors when drawing up new constituencies."[49]

51. We reiterate that pre-legislative scrutiny and public consultation would have provided an opportunity for these concerns to be properly addressed.

PUBLIC PARTICIPATION

52. Clause 12 will abolish local inquiries for boundary changes. The Political and Constitutional Reform Committee heard evidence that local inquiries are "dominated by the political parties" and that they generally had "little impact" on final recommendations.[50] However, other evidence received by that Committee stressed that the inquiries serve a useful function.[51] We also note that local inquiries lend legitimacy to the process which risks being lost with their abolition.

53. Clause 12 would place a duty on the Boundary Commissions to "take such steps as they see fit to inform people in the constituency of the effect of the proposed recommendations" and provides that representations may be made to the Commission for a period of 12 weeks (extended from the current four week provision). We agree that there is a need to ensure that the public are made fully aware of any proposed changes to constituency boundaries in order that they have time to prepare and make their representations.

54. We recommend that the Government give consideration to whether the Boundary Commissions should be directed to comply with the requirements of the Code of Practice on Consultation.

Conclusion

55. The Parliamentary Voting System and Constituencies Bill provides for significant changes to the British constitution. We note that the questions of what voting system should be used to elect MPs, how many MPs there are and whether constituencies should be equalised are of prime importance. We recognise that the Government wish to address them. However, we believe that a number of concerns, particularly with Part 2 of the Bill, have not been properly addressed by the Government.

56. Furthermore, we have noted in relation to the timetable of the boundary reviews[52] that the provisions of this Bill and the Fixed-term Parliaments Bill are interrelated. We also draw to the House's attention that the subject matter of this Bill closely relates to proposals for recall of MPs[53] and for reform of the House of Lords. It is expected that the forthcoming draft Bill on Lords reform will provide for at least a part-elected House. Both the size of the Lords and the way in which Members are to be elected should be determined in conjunction with decisions made concerning the size and electoral system of the House of Commons. Fully effective scrutiny of this Bill would be possible only when considered alongside these proposals.

57. We are concerned that the constitutional relationship between the provisions of this Bill and the Government's other proposals for constitutional reform have not been adequately thought through.

58. The Government should set out how they consider that this Bill and its place within their programme of constitutional reform makes the political system "more transparent and accountable."[54]