Parliamentary Voting System and Constituencies Bill

Lord Pannick Excerpts

Wednesday 9th February 2011 Lords Chamber

Moved by

[Lord Pannick]

22D: Clause 11, page 10, line 37, at end insert—
“Exceptional circumstances5A If, but only if, a Boundary Commission is satisfied that—
(a) it is necessary to do so in order to achieve a viable constituency, and(b) such necessity arises from special geographical considerations or local ties, as defined in rule 5(1)(a) or (d) above, of an exceptionally compelling nature,the Boundary Commission may decide that the electorate of the constituency shall be—
(c) no less than 92.5% of the United Kingdom electoral quota; and(d) no more than 107.5% of that quota.”

[Lord Pannick]

Amendment 22D stands in my name and those of the noble Lords, Lord Williamson of Horton and Lord Armstrong of Ilminster, and the noble Baroness, Lady O’Neill of Bengarve.

The purpose of the amendment is to recognise and address the competing strength of the arguments advanced from each of the Front Benches on a matter of considerable significance: namely, the extent to which the Boundary Commission should have flexibility to depart from the electoral quota for each constituency laid down in the Bill. The Government contend—this is a very forceful argument—that equality in this area is of enormous significance. They have already recognised a 5 per cent margin either way. One must be very careful about giving any further flexibility lest one undermines the important goal of equality. Those arguments are very forceful, but equally forceful are the arguments advanced by noble Lords on the opposition Front Bench. They point out that equality is not the only goal: geographical considerations, local ties and community cohesion are also important in this sensitive area and there may be constituencies where the Boundary Commission would wish to depart from the electoral norm further than the 5 per cent margin.

The amendment recognises the force of each of those arguments and it suggests that the solution is to confer on the Boundary Commission in its discretion a very narrow—I emphasise very narrow—additional discretion to allow for a departure from the electoral norm of up to another 2.5 per cent either way. That would apply only if the Boundary Commission believes, in its judgment, that two criteria are satisfied. The first criterion is that a further departure must be necessary—not reasonable nor desirable, but necessary. The second criterion is that it must be necessary in order to address special geographical considerations or local ties—already the criteria in Rule 5—of an exceptionally compelling nature. On a matter as important as this, it is appropriate to include in the Bill that limited additional flexibility outside the 5 per cent norm, but I accept that it is absolutely vital that any such flexibility is defined in a way that ensures that the exception does not swallow the rule.

Amendment 22D has been drafted with the assistance and encouragement of noble Lords from all parts of the House. It has been drafted in a manner that I am confident achieves this narrow objective. I thank the noble Lord the Leader of the House, the noble and learned Lord, Lord Wallace of Tankerness, Mr Mark Harper, the Minister in the other place and the Bill team for the time and trouble that they have taken in discussing with me very patiently and courteously the Government’s concerns about this issue. I really have tried my best to accommodate those understandable concerns in this amendment in a constructive manner. There remain, I understand, four main concerns that Ministers still have. I will briefly identify and seek to address them.

The first concern is that the criteria, particularly the term “exceptional” are subjective. The Boundary Commission will, Ministers fear, be under pressure from people in many constituencies to recognise that their cases satisfy these criteria. The answer is that the criteria are very narrowly defined and the Boundary Commission will, I am sure, respect the clear limits in both the language and purpose of the amendment. I refer noble Lords to a 1998 judgment by the late and much lamented Lord Bingham of Cornhill, where he explained in another statutory context what “exceptional” means. He was, incidentally, rejecting arguments from counsel, Mr Clegg QC—no relation. Lord Bingham said that exceptional means something,

“which is out of the ordinary course, or unusual, or special, or uncommon”.

There are many contexts in which Parliament has used the term “exceptional”, and public bodies are used to exercising narrow discretions accordingly.

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[Lord King of Bridgwater]

I am sure that that is not true because I know that I can talk to the Cross-Benchers, many of whom—

[Lord Pannick]

My Lords—

[Lord King of Bridgwater]

Perhaps I may just finish my sentence. I have had the pleasure of working with many Cross-Benchers over the years who will bring their independence of mind to this House.

[Lord Pannick]

I reassure the noble Lord that there is no Cross-Bench position on this. Each Cross-Bencher who has considered this issue has a position. Many of them agree with the views that I explained to the House, but some of them no doubt will not agree. There is no official Cross-Bench position.

--- Later in debate ---

[Lord Pannick]

I thank all noble Lords who have spoken in this important debate. I particularly thank the noble and learned Lord, Lord Wallace of Tankerness, for the reasoned way in which he addressed the points that I have made at all stages. I hope that this House is performing its vital function in relation to constitutional matters.

The noble Lord, Lord King, said that his concern was whether the amendment would promote equality, but equality is not the only value recognised by the Bill. The Bill accepts that there should be a 5 per cent variation either way. It accepts that there should be exceptions for Orkney and Shetland, the Western Isles and, as a result of the amendment moved by the noble Lord, Lord Fowler, the Isle of Wight. Equality is not the only value; there are other considerations that noble Lords will wish to take into account. The noble Lord, Lord Maples, said that he would not accept any of those exceptions. That is a logical position that I respect, but it is not the position taken by the Bill. It recognises that there are and there have to be exceptions to equality.

The second concern of the noble Lord, Lord King, which was shared by some noble Lords, was about delay. The noble Lord, Lord Maples, asked me specifically whether I would advise a client that a judicial review is hopeless. My short answer—indeed, it is also the long answer—is yes; in the context of a statutory provision that confers discretion, by reference to the criteria of necessity and exceptionally compelling circumstances, I would advise that it is hopeless.

The noble and learned Lord, Lord Scott of Foscote, expressed—if I may say so—a more nuanced view. I hope that that might demonstrate to the noble Lord, Lord King, if nothing else does, that the Cross-Benchers do not think and act as a group. If the noble Lord still has any suspicions in that respect, he may wish to look at yesterday’s Division lists, which will confirm that we do not think and act as a group on these vital issues.

My point is not that judicial review can never be used to delay action in any context. My point—which, with respect, was not addressed by noble Lords who are understandably concerned about this—is that in this context, where the criteria are so narrow, subjective and political, judicial review is simply not realistic; it is not an appeal to the merits. The key point was made by the noble Lord, Lord Butler of Brockwell, who rightly pointed out that if noble Lords are concerned about judicial reviews holding up the process, the real concern—which I do not share—should be about judicial reviews of the exercise by the Boundary Commission of the subjective functions that it has been given already under Clause 11. Those functions are not circumscribed in the way that the amendment circumscribes this discretion.

The noble Lord, Lord Rennard, expressed great concern about the term “viable”. The Oxford English Dictionary defines it as “workable” and “practicable”. It is not simply that “viable” is in the amendment; it is linked to a concept of necessity and a judgment by the Boundary Commission of what is necessary. That is the answer to the intervention of the noble Lord, Lord Phillips of Sudbury.

The noble and learned Lord, Lord Wallace of Tankerness, expressed concern that, under the amendment, Boundary Commissions would set different standards for different constituencies. They would not; the same criteria would apply to all constituencies. Of course, their application would differ according to the circumstances, just as the application of the existing Clause 11 criteria—the same criteria for all—will differ according to the circumstances of the constituency, and rightly so, in the judgment of the Boundary Commission.

Finally, the noble Lord, Lord King, pointed out that noble Lords should not accept an amendment simply in order to secure a compromise. He is right. I commend this amendment to the House not because it is a compromise but on its merits. It is fair, reasonable and workable. I say to all noble Lords that in the context of a Bill that makes fundamental changes to our constitutional arrangements—a context where consensus is vital if it can be achieved—it would be desirable, if possible, to give the Boundary Commission a carefully controlled discretion outside 5 per cent, which will undoubtedly give a large degree of reassurance to those who are concerned about the fundamental changes that we are making to an important aspect of our constitution. That would be a wise step for Parliament to take. My central point is that the amendment is right on its merits and I wish to test the opinion of the House.