Parliamentary Constituencies Bill

Baroness Hayter of Kentish Town Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 8th September 2020 Grand Committee

Moved by

[Baroness Hayter of Kentish Town]

1: Clause 1, page 1, line 5, leave out subsection (2)

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[Baroness Hayter of Kentish Town (Lab) [V]]

My Lords, it is an honour to move the very first amendment of the first Bill to be taken in Grand Committee in its hybrid form. It is an unexpected pleasure. I wish the Chair luck in dealing with this new configuration.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

Thank you.

[Baroness Hayter of Kentish Town (Lab) [V]]

Amendment 1, which is also in the names of my noble friends Lord Lennie and Lord Grocott, simply re-establishes the existing practice whereby once the Boundary Commissions have done their work, Parliament puts it into legislation. Without this amendment, the Bill provides that the Boundary Commissions’ reviews will be implemented automatically by Order in Council, which, as we know, are not subject to parliamentary approval or any procedure.

There are four reasons to support this amendment. First, there has been no indication of any problem that the Bill seeks to solve with this change. There has been no pre-legislative consultation and no pre-legislative scrutiny of it. We have seen nothing of any debate with the commissions; there has been no suggestion of any demand for such a change and there has been no pre-discussion either with parliamentarians or the political parties, unless within the governing party itself.

Secondly, it is surely clear to the Committee that what happened last time was ample demonstration of the importance of parliamentary oversight to issues that might appear to be merely implementary, but in fact are constitutionally important. The coalition Government decided to reduce the size of the House of Commons to 600, with no reason given for that number. At the same time, they were increasing the size of this House with more unelected politicians. No rationale was given for the number 600 and no account was taken of its implication for Scottish and Welsh seats, or for those in rural or geographically challenged areas. Unsurprisingly, it was, in effect, rejected by the House of Commons. Without that ability of Parliament to have the final say, we would today have only 600 MPs, perhaps with 50 former MPs becoming Peers in compensation. It is proof positive of the need to take the elected House with you when a Government are suddenly seized with an unsustainable notion.

Thirdly, it will be clear from other amendments tabled for today that there is some distrust about the proposed procedure and the ability of the Executive to retain an influence, which under the Bill they will still have, either by the timing of the Order in Council or by the composition of the Boundary Commissions. We might note, therefore, the amendments to be moved by the noble Lords, Lord Cormack and Lord Young of Cookham, and the noble and learned Lord, Lord Thomas of Cwmgiedd, which we will deal with later.

Furthermore, although our Constitution Committee agrees in principle with the change, it particularly said that the proposed automatic implementation of recommendations of the Boundary Commissions will protect against undue influence only if they are genuinely independent. The committee therefore suggests that the House consider safeguards to ensure the independence and impartiality of the Boundary Commissions and their recommendations. We will come to specific proposals on this later, but the themes underlying this resonate with Amendments 1, 2, 5 to 9, and 12. In other words, both the Constitution Committee and these other amendments are in fact all part of a piece, that the Government—perhaps especially this Government—are capable of a certain flexibility when it comes to decisions that they might seek to influence. Their appointment of their friends—Tony Abbott or others whom I will mention in another group later—or the removal of those whose advice they do not like, and here I cite a swathe of Permanent Secretaries, in addition to the sad loss today of the head of the legal service, indicate a willingness to use subtle pressure to get what they want, or less than subtle pressure, as we witnessed over the attempted Prorogation, the threat to judicial review, and basically the attempt to sideline any whose advice or decisions get in their way. We do, therefore, have a concern that without absolute, very solid safeguards, the ability remains with the Government and not with Parliament.

Fourthly and lastly, there is a vital issue about the role of Parliament vis-à-vis that of a quango. I hear what our Constitution Committee says on that matter, and about the exclusion of Parliament. However, this is about the Executive vis-à-vis Parliament. It is about the Government removing a democratic backstop to an issue where decisions are not black and white but involve judgments, and—vitally—affect communities, devolution and regionalism. These are choices which Parliament cannot shrug off to unaccountable appointees, who may, as the Constitution Committee suggests, be looking to their reappointment.

In brief, we do not need this change. It was not requested; it has not been discussed; and it removes an important backstop role from Parliament. I beg to move.

[Lord Grocott (Lab) [V]]

My Lords, well done to those who have been involved in setting up this hybrid Grand Committee. It is an innovation and my mind boggles at how it is done. But, despite its wondrous characteristics, the sooner we get back to normal the better. As a very early speaker in this Committee, I want to make one constitutional point. There is one very unusual thing about today’s proceedings, which I accept because of the circumstances we are in. To my knowledge, there has never been a major constitutional Bill—which this is—held in Grand Committee. Such Bills are always held on the Floor of the House. One cannot imagine anything more fundamental to our constitution than the way MPs are elected and the areas that they represent. So I hope that this Committee may be the last of its kind and we can get back to the more usual practice of debating these Bills on the Floor of the House.

I have put my name to the amendments in the name of my noble friend Lady Hayter in the full knowledge that she would explain them lucidly and leave me little to do. I am sure she has been comprehensive enough even for Lord Tyler who, I am sure, will be listening and will have heard what she said. I will add, with some strength of feeling, to a couple of the points that my noble friend made. The first relates to the huge importance of Parliament having an ultimate say in the Boundary Commission’s recommendations and their implementation. The Government will deal with this later, but it is also relevant to this clause. The Government will argue that they are taking power from Parliament and the Government and giving it to an Order in Council which is absolutely neutral. I am afraid that that is not very accurate language. When the commission’s report is finally sent to the Order in Council is a matter for a government Minister. So, if the Bill goes through unamended, it will, effectively, transfer the final word from Parliament to Government. We can argue about that, but let us at least argue as if we were on a level playing field and understand what is actually being done.

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[Baroness Hayter of Kentish Town (Lab) [V]]

I start by thanking the Minister but also the former Chief Whip, the noble Lord, Lord Grocott; the former law officer, the noble and learned Lord, Lord Morris; the noble Lord, Lord McNicol, the noble Baroness, Lady Seccombe, and the others I am going to mention, for their contribution to this debate.

First, I have some bad news for the noble Lord, Lord Hayward: he did not invent “automaticity”. It was used for the allocation of the seats on the TUC, of which I was supportive, but I confess that it was part of the grubby deal. We shall have to read the book to see the details. He may have applied it here, but I am really sorry, it is not his original term, although it is quite useful.

The noble Lord, Lord Hayward, says that automaticity is reasonable if one trusts the Government—I may have added “if” in rather strong language, but that is important. My noble friend Lord Foulkes says he is suspicious of the motivation behind this. I think my noble friend Lord Liddle is right when he talks about what else is going on—what is the environment that has led to the change to remove the parliamentary say?

I hope the stuff I am getting on my other devices is not accurate, but we are hearing from the press that Brandon Lewis has admitted that the Northern Ireland protocol proposals would indeed breach international law. Obviously, we saw the resignation of a senior legal officer earlier today. Asking us at this moment to trust the Government and all their motivations is quite a hard ask. Therefore, the ability of this mother of all Parliaments to have its final say is important.

Orders in Council, which are the suggestion in the Bill, are pretty rare. I have been involved in them in changing the name of a university and with an organisation gaining chartered status. I think the noble Lord, Lord True, kindly sent me a couple of other examples, but no others have actually involved major constitutional issues. I think my noble friend Lord Grocott said, although others did as well, that these are constitutional issues. How MPs are to represent their constituencies as well as their constituents—we will come on to that; I dealt with it at Second Reading—is an important constitutional issue. It is not simply a technical one.

I am very pleased that we have had this discussion in Committee, because it will enable the noble Lords, Lord Rennard and Lord Tyler, to look at whether the Government will move on their other amendments. The noble Lord, Lord Tyler, could think about supporting this to retain the parliamentary role if other changes are not made. Although the noble Lord, Lord True, quotes from the Constitution Committee report, there is the word “however”—and I think it is in bold. Our colleagues suggest that there should be changes to absolutely ensure the independence of the Boundary Commission. Even there, although it says that it is constitutionally acceptable, there is a big “however”.

As colleagues will have gathered, the Opposition do not support having the automaticity of Boundary Commission recommendations becoming law with no parliamentary intervention. The noble Lord, Lord True, always treats our amendments very seriously. He said that I have not persuaded him, but I am afraid he has also failed to convince me of the need for this change. Clearly, we will look at what response is given to the other amendments, but we might need to return to this on Report. For the moment, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Lord Tyler (LD) [V]]

My Lords, I very much agree with what the noble and learned Lord, Lord Morris, has just said. It is remarkable that the majority of those participating in this debate are former MPs with extensive and distinguished constituency representation behind them. That comes through in the way in which they have approached this issue.

Even more significant, perhaps, is the experience of the former Ministers. If they are sceptical about what exactly will happen behind the scenes if there is the sort of delay that could happen and has happened in the past, we should take that very seriously. As my noble friend Lord Campbell of Pittenweem said, “reasonably practicable” is a subjective judgment and could therefore be challenged at judicial review. The fact that these former Ministers are sceptical, perhaps even slightly cynical, about what could happen behind the scenes is extremely significant.

The noble Lord, Lord Young of Cookham, whom I have known for a number of years, has had extraordinary ministerial experience; he must be one of the longest-serving Ministers in the whole of our Parliament. I venture to suggest that he probably has had more experience at close hand of ministerial or even Civil Service foot-dragging than anybody who was giving him advice in the meeting to which he referred. I therefore take far more seriously what he says about the potential dangers of unlimited delay than those who sought to persuade him against his proposed amendment.

When the noble Lord spoke at Second Reading, I thought that there was a general mood on all sides of the House, not least because of that experience, that he was on to something extremely important and that this provision was one of the few serious weaknesses in terms of potential ministerial and partisan interference. I therefore take what he says today very seriously indeed.

There is only one way in which I perhaps take a slightly different view. Despite the fact that the Minister at Second Reading was reading his brief religiously—and loyally to those who brief him in the Cabinet Office—I thought that his body language was rather more sympathetic to the points being made by the noble Lord, Lord Young, and the rest of us. Therefore, I am more hopeful and optimistic that the Government’s eventual conclusion will be that they cannot possibly combine automaticity with sticking to this bit of no automaticity in terms of the speed with which Ministers have to bring the order to the House.

I also believe that there is a strong argument, which the noble Lord, Lord Young, enunciated and has been repeated elsewhere, about what exactly would happen if there is a long delay. What exactly would people do in whatever department would think about these matters? What would they be up to? After all, if the Bill goes through in its current form, all they would be looking at are the firm, strong recommendations of the four Boundary Commissions. How could they spend months on that? Incidentally, that is my only concern about the difference between the six weeks recommended by the noble Lord, Lord Cormack, and the 12 or so weeks recommended by the noble Lord, Lord Young, and others. I am not sure what Ministers might do in those second six weeks. There may be a strong argument for sticking firmly to the shorter period if, as has been suggested by people with a great deal more experience than me, there really is not that much to do.

I strongly recommend the well-briefed academic evidence given by the late Professor Ron Johnston—we are still missing him from this debate and these discussions—and his fellow academics. He pointed out just how simple in practice the process becomes at that stage; that was endorsed by the noble Lord, Lord Hayward, with his expertise and experience.

There is a simple solution to the problem of potential mistakes in the modification arrangements. Again, I take very seriously the experience of the noble Lord, Lord Blencathra, from the DPRR, on which I used to serve under his excellent chairmanship. Again, we are looking at an area where the Executive cannot be expected to take a long period to consider recommendations from the Boundary Commissions that will be so firm, detailed and complete.

There is an open-and-shut case for a firm limit on the period during which a delay could be permitted at the hands of bureaucrats or Ministers. In the words that have already echoed around the Grand Committee today, automaticity must lead to one or other of these sets of amendments. I hope that the Government will accept them.

[Baroness Hayter of Kentish Town (Lab) [V]]

My Lords, as I made clear in the debate on the first group of amendments, we do not support the automaticity of Boundary Commission recommendations becoming law with no parliamentary intervention. In an ideal world, Clause 2 would not be in the Bill. Nevertheless, we share in the sentiments expressed by the noble Lord, Lord Cormack, and other speakers, and the worry that some decision is still left with the Executive while none is with Parliament. If this clause is to be in the Bill, clearly, these amendments are very welcome.

This is important not simply for parliamentarians but for Boundary Commissioners. In knowing that they rather than Parliament are making law, it will be important for them to be confident as they assume this new responsibility that the Government will not play games with any delay—should, for example, an early election be on the cards, given that we hear that the Fixed-term Parliaments Act is to be removed, thus leaving the calling of an election back in the hands of the Prime Minister. Incidentally, my noble friend Lord McNicol is, like me, not a former MP, but along with others, we have been involved from a party position. As he said, if we can remove Parliament’s ability to discuss, we should remove the Executive’s ability to delay.

The noble Lord, Lord Cormack, said that we need to curb the ultimate power of the Executive. Hear, hear to that. Six weeks sounds better to me. If it is going to be automatic, then automatic it should be. Furthermore, if the noble Lord, Lord Young of Cookham, says that it is doable within a time limit, my judgment is that it is doable within a time limit. He knows whereof he speaks, along with the noble Lord, Lord Hayward, my noble friend Lord McNicol, and other former Chief and Deputy Chief Whips.

I confess that my eyebrows rose just a little at the protestations of the noble Lord, Lord Blencathra, as to the pristine, impeccable holiness of the Conservative Party. Maybe he needs reminding about Dame Shirley Porter and Westminster. I will go no further, but I think he overegged that particular pudding. If we are to have automaticity, clearly this delay must not be in the hands of the Government.

[Lord True (Con)]

My Lords, I am troubled that my body language should be coming under examination, particularly since most of my family are saying that I am getting so grotesquely fat, it should never be examined in any circumstances. Perhaps that is an argument to reinforce the case that a number of noble Lords have put and with which I personally profoundly agree: there is great merit in our proceedings being in the Chamber, where body language can be examined, as it cannot with these glass screens.

For accuracy, I should say that there have been a number of strictures about this discussion taking place in Grand Committee. All your Lordships will understand the exigencies of the present situation. We are all chafing against the limitations placed on us, but the reference to Grand Committee was agreed in the usual channels and supported by the other political parties. The conduct of our business by the usual channels is traditional. It is not reasonable, in the circumstances, to impugn the Government, or indeed the House authorities, on that point. I add to what others have said about the great work that has been done in putting this Room together.

This is a very important debate, body language or no. The amendments have been very skilfully spoken to by all noble Lords, from my noble friend Lord Cormack onwards. Noble Lords have largely said the same thing so it would be invidious to pick out anybody, but obviously the now poacher, my noble friend Lord Young of Cookham, made a very powerful case to the Committee.

A six-month figure has been suggested, as has three months. I regret to say that both those deadlines could bring problems to the closing stages of a boundary review. I will return briefly to that point, but I start by explaining why the Bill is as it is. It is drafted to give some flexibility, but it demands that the Secretary of State submits the boundary order:

“As soon as reasonably practicable”.


This terminology is widespread in legislation and in this case it allows for some small degree of flexibility in the scheduling and completion of the work needed to prepare and submit the boundary order and the associated orders. However, it is only a small degree because, as has been pointed out, any Government who unreasonably delayed a piece of work as high-profile as this would likely come in for swift legal challenge, so there is not, in a sense, an untrammelled power, as my noble friend Lord Cormack contended. None the less, many parliamentarians would agree that leaving resource to the courts is not always the best or most agreeable way of conducting our proceedings. I will return to this point later.

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Moved by

[Baroness Hayter of Kentish Town]

10: After Clause 4, insert the following new Clause—
“Impact on constituency boundaries: reduction of voting age
Within the period of 12 months beginning on the day on which this Act is passed, the Boundary Commission must review the impact on constituency boundaries of extending the entitlement to vote at a parliamentary election to those aged 16 or 17 years.”

[Baroness Hayter of Kentish Town (Lab) [V]]

My Lords, a key part of the last boundaries Act—parts of which this Bill seeks to amend—was to make the numerical size of constituencies more equal. It was based on an exact number of electors rather than, for example, residents, where the old method allowed some flexibility. As we heard from my noble friends Lord Grocott, Lord Foulkes and Lord Blunkett, it is potentially residents who cannot be in surgeries rather than those on the electoral roll. The focus in the current boundaries Act takes the numerical equality, if you like, of voters as central to the new constituency boundaries.

Even if one agrees with that focus on numbers—and I have my doubts about this overarching focus on it—it could be undermined either by population moves or, in the instance of this amendment, by an extension of the franchise to 16 and 17 year-olds. That is a policy change which we would obviously like to see but, should it happen, it is possible that it could undermine the concentration on arithmetic equality, given the unequal distribution of age groups across the country. As we know, we have certain constituencies with an older age profile, which would therefore be overrepresented if there was a switch in the franchise.

I recognise that we have yet to persuade the Government to alter the franchise, but it would be useful to see the impact of any such change on constituency boundaries. This simple and short amendment simply asks the Boundary Commission to look at extending the franchise to 16 and 17 year-olds and at what impact, if any, it would have on the distribution of seats. I beg to move.

[Lord Tyler (LD) [V]]

My Lords, I am delighted to support the noble Baroness, Lady Hayter, on this amendment. I am one of its signatories and it is a cross-party amendment. We have to start to think in firm terms about providing for the eventual, inevitable extension of the vote for parliamentary elections to 16 and 17 year-olds throughout the United Kingdom. The Grand Committee should think in terms of what is likely to happen over the next few years by looking back at what has been happening in recent years on this issue.

I and my Liberal Democrat colleagues have long campaigned for this reform, convinced as we are that this age group have shown themselves to be quite mature, and responsible enough to undertake this civic duty. It would be only sensible, right and responsible for us to start to take into account this potential change because, of course, the general election is not likely to take place until 2024, for the reasons admirably advanced by the noble Lord, Lord Lipsey, in a previous debate. It would be sensible for us to take that into account now, together with the greater flexibility that will undoubtedly be required to improve what is said on that matter in the Bill.

We were delighted when our Ministers in the coalition Government persuaded the Conservatives to permit this group to vote in the Scottish referendum in 2014. We were even more delighted when that group took the issues of that campaign so seriously, registered and voted in substantial numbers and, as far as could be ascertained after the poll, demonstrated their maturity by the way they voted. It seems that they were rather more responsible on all counts than some much older cohorts.

When it came to the 2015 debates in your Lordships’ House on the arrangements for the EU referendum, Members on all sides were able to refer to this successful experiment. We were no longer advocating on the basis of theory, however principled; we had practical evidence to support our case. As with Scotland, the argument that the referendum could create huge change which would have vast consequences for many generations to come and which, unlike an election, might not be easily reversed was recognised as persuasive. Prime Minister Cameron appeared to accept that argument. Younger citizens could expect to have to live with those consequences for much longer than many here in your Lordships’ House.

To my embarrassment, or perhaps even horror, Hansard apparently records that I made no fewer than 28 contributions to those debates in support of the proposition. However, I have checked and some of them were very brief. But I found that I was a signatory to the successful amendment on 18 November 2015 which sought to extend the franchise to this group. It was passed by your Lordships’ House by 293 votes to 211, with 91 Liberal Democrat Peers and 155 Labour Peers in support.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received no request to speak after the Minister. Therefore, I call the noble Baroness, Lady Hayter.

[Baroness Hayter of Kentish Town [V]]

I thank all noble Lords who have supported the amendment. I will simply make two points. First, as my noble friend Lady Gale said, Scottish and Welsh 16 and 17 year-olds have, or will have, the vote, but do not appear in the numbers on which their constituency boundary is drawn. That does not make sense. We just want it examined. Secondly, I give a gentle warning to the noble Baroness, Lady Scott, and, indeed, her Government. After the summer we have just had, with the disruption to the education and futures of 16 and 17 year-olds, her staunch refusal to consider or even discuss the issue, indeed, not even to allow the Boundary Commission to look at any impact, will not go down well with the exact voters who will be 18 at the next election. They will have heard her words today, but I do not think they will be impressed.

I personally regret her response—it feels short-sighted and over dismissive of the ask. It would not undermine the independence of the Boundary Commission. It would enable it to report on an important issue of franchise. For the moment, I beg leave to withdraw the amendment.

[Lord Wallace of Saltaire [V]]

My Lords, the Minister quoted the manifesto commitment not to lower the voting age. I have just checked the Conservative manifesto and it has the parallel commitment:

“We will make it easier for British expats to vote in Parliamentary elections, and get rid of the arbitrary 15-year limit on their voting rights.”


I want to press the Minister on whether the Government actually plan to implement that manifesto promise within the lifetime of the coming review. If they propose to carry this manifesto commitment through, they should at least allow for this, given that they do not actually know how many of the 5 million British expats might now register. It could blow the entire exercise well out of the water.