Parliamentary Voting System and Constituencies Bill

Lord Soley Excerpts

Monday 24th January 2011 Lords Chamber

[Lord Rennard]

I am sorry but I will not give way again on this point. Perhaps I may be allowed to finish the point that I am responding to from the noble Lord, Lord Kinnock, and again make the point that I have had to make when this position has been taken many, many times in debate on many amendments during the passage of the Bill over the 12 days of Committee so far. It seems to me that it is not uncommon in many countries for Parliaments to fix the size of Parliaments, usually through a written constitution. As the noble Lord, Lord Kinnock, will know, my party, and I in particular, think that it is very important to have a written constitution. I believe that in this country we are moving, in one way and another, towards a written constitution, but it is absolutely not unprecedented nor considered remotely undemocratic in other countries for Parliament to determine the number of seats that there should be. In the United States, for example, it is the constitution that sets out that there shall be two members of the Senate for each state. That appears very early in the principles of the United States constitution. Therefore, I do not accept that the Boundary Commissions are unduly constrained in this way.

[Lord Soley]

My Lords—

[Lord Rennard]

No, my Lords, I want to make progress on my argument and allow us to proceed with a couple of issues of serious scrutiny that I still want to raise in this group of amendments. The first concerns the amendment of the noble Lord, Lord Foulkes, making the boundary commissioners take into account their perceptions of the socioeconomic base or relative wealth of each constituency. Over the decades in which many of us have been involved in Boundary Commission processes, I have not heard it seriously argued by anybody that the boundary commissioners are anything other than impartial and independent. However, my view is that we should not start asking them to exercise their judgment about the relative wealth of different constituencies, using different, competing socioeconomic factors, or to try to use their judgment to suggest that, because certain MPs have a lot of problems of this nature or fewer problems of that nature, these seats should be varied in some way. How could the boundary commissioners possibly be expected to remain being seen to be impartial and independent in their judgment? I suggest that that is not a serious factor that the boundary commissioners should have to take into account.

Having seen many submissions to public inquiries on Boundary Commission processes and read many of them in the past, I have thought that the criteria which people sometimes think could be applied are not serious ones on which you would expect the commission to impartially draw the constituencies in the way that it has.

Finally within this group, I want to comment on Amendment 76, which concerns eliminating references to the euro regions with particular regard to the way in which the Boundary Commission for England works. That does not seem a sensible way in which to suggest that the Boundary Commission for England should go about its business. The Bill is not prescriptive in saying that it must follow the boundaries of the euro regions but, if it is to work in a sensible way across the whole of England, it could not possibly start in, say, Northumberland, go down to the Isles of Scilly and then go across to Kent. In order to make this effective, we need to retain the language in the Bill suggesting that the euro regions may be building blocks that the commissioners use, saying that they will want to work simultaneously on the south-east, the south-west and the north-east, and have a proper process of scrutiny that could be effective with online representations. They will need to work simultaneously on the different regions rather than across England as a whole.

[Lord Soley]

The noble Lord who has just spoken makes a fundamental mistake when he says that Parliaments in other countries decide the size of constituencies. He is right that they do, but the problem here is that the Government are deciding it. In other countries, political parties agree it, usually jointly or independently. That is all I want to say about that but it is an important point: Governments do not decide the structure and size of Parliaments; Parliaments decide that, and they normally do it by consent.

[Lord Tyler]

Does the noble Lord not recognise that the House of Commons has voted?

[Lord Soley]

I certainly recognise that. I also recognise that this is a bicameral House and I hope that it stays as such. One of the jobs of a bicameral House is for the second Chamber to revise what the first Chamber has done, and that is particularly important on constitutional issues.

I return to the core amendment. I want to speak only on Amendment 73, but there is a wider point here that affects some of the others. There is great diversity in this group of amendments, and it might have been better if some of them had been separated out. Those tabled by the noble Lords, Lord Rennard and Lord Tyler, might have been better as a separate group because there is quite a bit in them that is separate from the others.

I want to focus on Amendment 73 in the name of my noble friend Lord Kennedy, where he suggests replacing the word “may” with “shall”. Many people in this Committee will recognise that the wording of a Bill and the use of words such as “may” is critically important, because it carries legal weight. The word “should” is not very different from “may” and, I say to my noble friend, not much better.

This point is important because it relates to some of the other amendments in this group. Why do we not use “shall” in relation to my noble friend’s amendment? It is a stronger commitment. The Minister will know that, in several other places following this, “shall” is used. The obvious example is in rule 6 of the new schedule, which states:

“There shall continue to be … a constituency named Orkney and Shetland”.

The Government want that to be legally enforced, so the use of “shall” is essential. In rule 5, however, as my noble friend has picked out, “may” is used. In other words, it states:

“A Boundary Commission may take into account...special geographical considerations”.

The Explanatory Notes to the Bill and many of the things that Ministers have said from time to time indicate that they also regard the things listed in rule 5(1)(a) to (d)—that is, special geographical factors, local government, local ties and the inconvenience attendant on such changes—as very important. Schedule 2, the measure that is driving them forward on this Bill, says:

“The electorate of any constituency shall”—

so there they are using a very strong form of wording that has strong legal force. However, back over the page, as I say, they use the much softer “may”, which does not have that commitment.

I am after an answer from the Minister because this question affects other parts of the Bill—certainly some of those affected in this group of amendments—but I am trying to focus on one for the sake of clarity. There is in fact no reason why we should not also use “shall” in rule 5. If we are all saying, as the Government have done, that we want these things to be taken into consideration, the use of the word would not undermine the use of “shall” in rule 2(1)—

“The electorate of any constituency shall”.

It would simply instruct the Boundary Commission in a much more forceful way to take into account the factors that Ministers and Members on all sides of the Committee say are important. I do not see why we should not ask the Boundary Commission to do that.

The Minister might well say that it could bring up legal challenges. I understand that that could be a problem. We do not want lots of reviews by the courts of such things. Having said that, there is no way that we can assume that these factors are not important. Nor is there any reason to assume that the number of challenges in a court of law would necessarily be different if we used the softer “may”. That does not rule out a legal challenge. It might make it more difficult to win but it does not rule it out, as I understand the law.

I will focus my comments just on this one point, but it is very important because it runs throughout the Bill. I understand why the Government, for party political reasons, have locked themselves into “shall” for the number of seats in Parliament. What I do not understand is why they cannot also use “shall”—the stronger legal version—for issues that they say are important and we all say are important. This is perhaps the best example. My noble friend Lord Kennedy has drawn attention to that discrepancy. The Minister needs to explain why we cannot have a straight change to the Bill here, so that it reads:

“A Boundary Commission shall take into account, if and to such extent as they think fit”,

followed by the four factors.

[Lord Campbell-Savours]

The intervention of the noble Lord, Lord Rennard, in response to my noble friend Lord Kinnock, ignored one simple issue; the Bill introduces a cap on seats. Once you introduce a cap, there is no flexibility. Whatever responsibilities, powers and so on you give the Boundary Commission, it will always have that in mind in whatever decision it takes on any boundary in the United Kingdom.

I will come to the wording of this rule in a minute, but I will first reply to something else that the noble Lord, Lord Rennard, said. In his preamble to dealing with the amendment, he addressed himself to the parliamentary channel and those who are listening. In so far as he did so, I will equally do so. He appeared to be in order because no one objected. It is important for people who are watching the parliamentary channel to understand that we are sitting here now at half past midnight—we may well sit all night—because some of us believe in a very simple principle. Because this is a constitutional Bill, the process by which it is being dealt with in Parliament is the wrong one. There has been no Green Paper, no White Paper, no prior scrutiny of draft legislation and no consultation with the political parties. A number has simply been pulled out of the air, inserted into the Bill in the middle of frantic negotiations over the formation of a Government, and handed to parliamentary counsel or the people who write legislation to produce it in the Bill, which now has to be rammed through both Houses of Parliament.

That brings me to the comments of the noble Lord, Lord Tyler. He said that the other House voted on the Bill. It is true that it voted on it, but there was no real debate in the House of Commons on this matter because of a contractual agreement between two parties to a coalition. That contractual agreement means that there is no free debate between two major parties in British politics: the Liberal Democrat party and the Conservative Party. If there are people watching the parliamentary channel, they might for once stop and think that there may be an explanation for what is going on in the House of Commons. I have put it in my language; I am sure that all my noble friends could put it in theirs if they so wished.

I move now to the comments of the noble Viscount, Lord Eccles, who referred to 318. I do not think 318 was a cap, was it? It was a target.