United Kingdom: Election Law

Lord Tyler Excerpts

Monday 15th June 2015 Lords Chamber

[Lord Tyler (LD)]

My Lords, on the 800th anniversary of the signing of Magna Carta, it is somehow ironic that it is left to just six of us to debate some of these fundamental issues. However, I warmly welcome the fact that the noble Lord, Lord Kennedy, has secured and opened this debate. He does so, of course, with considerable expertise and experience as a former commissioner of the Electoral Commission. I also very warmly welcome the Minister, as she is a neighbour from Gloucestershire.

I wish to touch with speed on six elements of current electoral law. The first, naturally, is the electoral system for the House of Commons. I need only refer very briefly to the results of last month’s general election, because so many others, less partisan than me, have already declared the first past the post system no longer fit for purpose.

Last December, at a British Election Study seminar, I forecast that there would be wide discrepancy between votes and the seats gained by different parties. As we now know, UKIP supporters have been cheated by the system and SNP supporters over-rewarded by it. The excellent report by ERS, A Voting System in Crisis, demonstrates the scale of this distortion. I also forecast that the inhabitant of No. 10 would get there with the support of less than 25%, or a quarter, of the eligible electorate—and sure enough he has. If equality before the law includes an attempt to ensure that every citizen has rough equality of electoral influence, we are a long way from that right.

That brings me to my second issue. It is now widely accepted that a drastic change to almost every parliamentary constituency boundary every five years is unnecessarily disruptive. The motive of the 2011-12 exercise was undoubtedly correct, since the variation between the sizes of some constituencies led to unacceptable inequality. However, there clearly needs to be a further reassessment along the lines suggested just before the election by the late, lamented Political and Constitutional Reform Committee in the House of Commons.

I noted also, in the last few days, a report in Total Politics that the 1922 Committee of Conservative Back-Benchers may no longer be so wedded to the idea that changes similar to those postponed in 2013 should now be resurrected. In particular, any reduction in the number of MPs without recourse to the other changes needed in our constitution is likely to be controversial with colleagues of all parties recently elected to the other end of the corridor.

My third issue relates to local authorities. As I said during the debate on the gracious Speech, after a political lifetime of seeking a fairer voting system, I am sufficient a realist to know that newly elected MPs are unlikely to rush to reform the way that they have just been elected. MPs have always proved more enthusiastic in favour of proportional systems for everyone else—for Holyrood, Cardiff, Stormont and even the European Parliament—just as your Lordships’ House has for internal elections here.

However, that need not stop us tackling the appalling way in which the system currently cheats those who vote in local authority elections. Here we have empirical evidence of the huge benefits of moving to a better system. I am indebted to Dr Lewis Baston for his meticulous comparison of the results of Scottish council elections before and after the change made by the Labour and Liberal Democrat coalition there to introduce the single transferable vote. The core of his case is that the consumers of the democratic process—the voters—now get a considerably better deal north of the border than south of it. They are more likely to be “happy voters” whose choice contributes towards the election of someone who can truly represent them. In Scotland, fully three-quarters get to see the candidate they gave a first preference to elected, and 90% of them see a candidate to whom they gave either a first or a later preference.

My fourth point follows immediately on from that. The Cities and Local Government Devolution Bill, currently before your Lordships’ House, offers an early opportunity to address this deficiency in our election law in England. As it stands, the Bill will create a potentially unprecedented concentration of political and economic power in one person’s hands, or that of a very small clique. Without effective electoral authority and constraints, the new mayors and their immediate entourage will clearly be a classic case of elective dictatorship in one-party states—totally unrepresentative new rotten boroughs—and, as the Minister may have noted, they are unlikely to be, at least in the first tranche, dominated by her party, or mine for that matter. We will start work on improving the Bill next week, when I anticipate there will be concern in all parts of the House to address this democratic deficiency.

My fifth issue concerns the franchise. We have yet to have conclusive evidence of the success or otherwise of the efforts to transfer from the old electoral registration system to the new one before the May polling date. My impression is that the pessimists will prove to be excessive doom-mongers but that the Liberal Democrats were right to insist on a steady transition, which will not end until after the Scottish, Welsh and London elections in May 2016. It could also be the register for the forthcoming referendum to decide our future membership of the European Union.

Obviously, there are different opinions about the date for the referendum. Personally, I think the sooner the better—as was indicated by the previous debate—as indecision could do much harm to the UK’s economy and individual job prospects.

However, there seems to be a growing conviction that the political establishment cannot exclude 16 and 17 year-olds from this crucial decision about their future. After the triumphant involvement of this age group in registration and voting in Scotland last year, I pity the poor politician who tries to pretend that English, Welsh and Northern Ireland young people are somehow less mature, less well-informed and less responsible than their Scottish counterparts. As a long-term advocate of this change, I welcome new recruits to the cause.

My sixth issue, and by far the most urgent, relates to the law which seeks to monitor, constrain and illuminate the money spent on electioneering. The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014—it is quite a mouthful—attempted to ensure that the efforts of non-party campaigners to assist the election of candidates and parties became more transparent and that the amounts spent were limited. Despite huge concerns at the time, we have yet to hear from the Electoral Commission if there were any serious infringements or confusions arising from it. In due course, I know, we will get the report of the reviewer, the noble Lord, Lord Hodgson.

Meanwhile, however, the comparable weakness of the law relating to the political parties themselves is now shown in sharp relief. I take just one disturbing example. All Members of your Lordships’ House who have previously contested parliamentary or local authority elections will recall the dire warnings from our agents about incurring any expenditure over the limit set which could be said to enhance our chances of election—that an election court could declare our election invalid.

But in the recent contests vast sums were spent, no doubt by all parties, to persuade electors in marginal, target constituencies, by means of mailshots, telephone calls and social media, to change their votes. However, since the candidate was not explicitly named, all this activity fell outside the constituency limits. This tears up the principles controlling payment for local electoral advantage which have been in place since 1883. What is good for the goose must be good for the gander. If non-parties are to be subject to constituency-based regulation on any and all targeted spending, the same should apply to political parties. Surely now is the time to grasp the nettle on a full party funding reform—and the template is already there to do it.

Following the excellent report of the Committee on Standards in Public Life in 2011, I convened a cross-party group, with Andrew Tyrie MP and Alan Whitehead MP, to develop a draft Bill based on the CSPL recommendations and on the previous recommendations of Hayden Phillips. That draft Bill sought to provide material on which a consensus for reform of party donations and party expenditure could be built. This is classically an issue that needs to be addressed well in advance of general election campaigns. The CSPL should be invited, under its current chairman the noble Lord, Lord Bew, to advise urgently on the next steps, and this time the search for complete consensus, which amounts to giving the veto to the most reluctant and recalcitrant, must not be allowed to impede the whole process. Ministers can retain credibility only if they proceed with the whole CSPL package. If they do I will stand with them in facing down its detractors. They cannot simply deal with the relationship between the unions and the Labour Party.

My noble friend Lord Rennard will deal in detail shortly with issues of electoral fraud, and the continuing opportunities for potential fraud, and I am grateful to him for his continuing efforts in your Lordships’ House to highlight and prevent these problems.

Some noble Lords may take a relatively complacent view of the health of our democracy and the extent to which it is reinforced by our electoral laws. I am far from optimistic and certainly not complacent. The perception among the public is that we no longer occupy a leadership role in these matters, and can hardly lecture other countries on how to run their democracies. In recent days, I have heard people suggest that the outcome of the elections in Turkey was not legitimate. We should note that success there was built on 41% of the vote. Our own Government were elected with just 37%.

The barons at Runnymede may not have known just what they were starting, 800 years ago. I trust that Barons and Baronesses today will surely realise that the price of democracy is eternal vigilance and that clearly our electoral laws are well short of perfection.