Examination of Witnesses (Question Numbers
20-39)
MR PETER
FACEY, DR
MARTIN STEVEN
AND DR
MICHAEL PINTO-DUSCHINSKY
22 JULY 2010
Q20 Chair: Finally, Dr Pinto-Duschinsky
if we were to directly elect our chief executive, our Prime Minister
by first past the post, would your antipathy towards a proportional
system for the legislature be lessened somewhat?
Dr Pinto-Duschinsky: To be realistic
about it I think that the idea of a presidential or prime ministerial
direct system is a very interesting one. It is not one that is
before us now and so I have not really looked at that question
so I would hope you would excuse me if I passed.
Q21 Chair: The traditional argument
is that when you need strong government you need first past the
post so therefore directly electing the Prime Minister on first
past the post makes sense but deliberative chambers do not need
that so much and a broader and a proportional basis can be used.
Dr Pinto-Duschinsky: I think you
have a strong government if an executive can usually be assured
of a majority in the House and you have a democratic government
when they can then be thrown out, and so I think that the combination
of strong government for a while but then the ability to throw
them out is the British tradition of combining a strong executive
with democracy.
Q22 Sheila Gilmore: How will the
citizens' jury be elected?
Mr Facey: The way that it works
in Canada was that it was random, it was a random selection of
citizens, in the same way that a jury works in a criminal case.
In British Colombia, they had 120 people, 60 men and 60 women,
who were chosen by lot, effectively, from the electoral roll,
who served for a year, who looked at the electoral system and
came back with a recommendation which then went to a referendum
of the voters in British Colombia, and the politicians in that
case took the decision that they would keep their hands off what
electoral system came out of it. The assembly/jury had a choice
of simply saying there should be no change at all, so listening
to Michael and saying to stay where they were, or, if there were
to be a change, recommending a change were put to a referendum.
I think that would be a fairer way because it would be those people
who would not have a direct interest in deciding on the electoral
system, but that is not the option here. We tried to persuade
the last Parliament to do it and your good selves decided not
to listen to us and, therefore, we are where we are.
Chair: I am going to move on now to the
AV referendum itself.
Q23 Mrs Laing: One very quick opening
question, if I may. If there is a referendum on changing the voting
system, is that changing the Constitution, or is it just incremental
change?
Dr Pinto-Duschinsky: I think it
is important enough to be considered a constitutional change.
Dr Steven: I am not a constitutional
lawyer, so I am not qualified to comment.
Mr Facey: It is a very interesting
question, and I am not trying to get off the hook.
Q24 Mrs Laing: You do not have to
answer.
Mr Facey: The reason it is an
interesting question is that, if you look at countries like New
Zealand where they have entrenched a few things into their constitution,
they entrenched the issue of having elections as constitutional,
the fact that you have to have elections, but they did not entrench
the issue of the electoral system. They said that that should
be decided by voters through a referendum process, but that was
not in the same order, so I think it is certainly constitutional
that we have elections and that elections are run in a certain
open way. Whether the question of the exact electoral system itself
should be entrenched in our Constitution, I think, is one which
would need further debate and discussion.
Q25 Mrs Laing: That is very helpful,
thank you. If one accepts that changing the voting system is not
the same process within our democratic system as choosing between
four or five candidates who will represent a particular area,
is there not, therefore, a case for saying that it would be wrong
to make a fundamental change like that if, let us say, only 15%
of those who were entitled to vote took part in that decision
and, therefore, should there not be a threshold which has to be
crossed in order for this fundamental change to be made?
Dr Pinto-Duschinsky: Well, we
have a problem in the British Constitution in that Parliament
is sovereign and Parliament votes by ordinary majority. I am in
favour of parliamentary sovereignty, but that is the one weakness
of it, and that has allowed various decisions and changes to go
through on the nod of basic constitutional significance without
really having public information, let alone public consent. I
do believe that it would be wrong to have this, or other fundamental
changes in our democratic system, without real consent, so I would
think that a threshold, such as the George Cunningham proposal,
is absolutely appropriate on this, and I would note that, since
there was a coalition agreement with a whipped vote to come on
the AV referendum, I do not believe that that was the case for
the threshold, so I think that that should be left for Parliament
to decide. Were I a Member of Parliament, I would certainly vote
for the threshold.
Mr Facey: I am a believer, unlike
Michael, in popular sovereignty. I believe that sovereignty rests
ultimately with the electorate, with our fellow citizens. I think
the question about having super majorities, thresholds, all these
things in referenda is that the reality is that you only have
to look at Italy where they have such a threshold that, if I were
a campaigner for the `no' side, what it effectively means is that
the best way of defeating this change would be to tell my supporters
not to vote. I think that that type of mechanism in a democratic
process is actually extremely undemocratic. Very few referenda
now work in Italy because what does happen is, if you are opposed
to that change, you simply tell all your supporters, because it
gets the threshold down, not to vote, so you end up having huge
`yes' votes, but actually no change. Now, if you applied the same
rule to you, as parliamentarians, and said that you can actually
change anything because you are sovereign, as a body, and we have
had fundamental changes to our Constitution and our civil liberties,
but you have to have at least 50% of your electorate, et cetera,
then a number of you would not be sitting here at all. If you
applied it to local council elections, we would not have any local
councils at all. I am in favour of things which entrench the Constitution,
but one of the triggers for change, I believe, is in referenda.
I think in referenda you are going to the people who actually
have the sovereignty, in my belief of things, and, therefore,
they can. Now, I would like a higher turnout. I supported a referendum
on the same day as the General Election when the previous Government
was doing it because it would have been a higher turnout. I support
a referendum on the same day as elections being held because it
saves money, but also because it will give a higher turnout, but
I do not believe that we should start imposing artificial ones
in referenda because, effectively, that would be gerrymandering
and the case of one side against another.
Dr Pinto-Duschinsky: I think that
this whole language of gerrymandering and all that ignores the
basic issue, that you need proper consent to a basic change. I
do disagree with the view of `we, the people'. Organisations,
such as that which Peter represents, exist and are able to campaign
in his case because he controls with his group the former funds
of the British Communist Party, and the idea that he represents
the British public on this is controversial, but I do not think
that the rhetoric of `we, the people' is actually apt in this
because the method that is being proposed is one that would actually
take sovereignty away from the people and sovereignty can only
be with the people if they can dismiss governments.
Q26 Chair: I think the concept of
consent to change basic law, whatever you want to call it, constitutional
law, is a good one, providing process is available in order to
make the change. What we are finding today is that it is a fluke
of parliamentary mathematics that has presented this opportunity,
some may say, to make a change and it is actually quite difficult,
even currently, to envisage a process by which people could make
that flow, particularly in a quite rigid party system. I was thinking,
Dr Pinto-Duschinsky, of you being a Member of Parliament, as you
alluded to a little earlier, and I just wondered—
Dr Pinto-Duschinsky: You are thinking
that would be ludicrous, were you?
Q27 Chair: —how long you would
survive the whipping system in the House of Commons, which some
of us have sailed close to the wind on in the past! I shall leave
that thought hanging, but bring Dr Steven in.
Dr Steven: I cannot comment on
the constitutional dimension, but I suppose I can say briefly
that there is, I suppose, a need to be consistent. Any threshold
is arbitrary. A number of things that Peter said I would, I think,
support. Once you break everything down, Parliament is sovereign,
you are parliamentarians and there is no threshold for you to
get in in terms of turnout, so I suppose I can only really comment
about the consistency aspect, but I cannot comment about anything
else.
Q28 Simon Hart: Just to go to the
question about timing, you were supportive of referenda being
held on the same day as other elections, in which case why is
the Electoral Commission wrong in advising against that, and why
is it wrong in advising against holding subsequent elections on
the same day, which might, as I put to Nick Clegg last week in
Wales, actually mean two different systems on the same day over
boundaries which, in some cases, do not overlap at all and, in
other cases, overlap quite a lot? Why is the Electoral Commission
wrong, in your eyes?
Mr Facey: They can speak for themselves
better than I can. I said they were wrong for the simple reason,
well, firstly, if you look around the world, holding multiple
elections and referenda on the same day is a fairly normal thing
for most countries to do. The ability of voters to answer a number
of questions on the same day is perfectly possible for them to
do, and in fact in this country we have multiple elections on
the same day, for instance, local elections and European elections.
Q29 Simon Hart: But not by different
systems. That is the point.
Mr Facey: Well, we do because
we have local elections on the first past the post and we have
a closed-list, proportional system on the same day and voters
deal with it. I went to San Francisco at the time of one of their
elections and a voter was being asked to decide on electing their
local council, electing their local mayor, electing state representatives,
federal representatives, state referendum issues and local referendum
issues, about 50 issues. Now, I would not advocate that they do,
but the ability of the voter to maybe make four decisions on one
day, if you do not think that, I think you are underestimating
the intelligence and the good sense of voters. I think there is
a duty, particularly in a time of financial crisis, to do things
in the most efficient way, and actually holding elections and
referenda, in my opinion, effectively a form of election, an issue
election rather than a council election, is actually cheaper and
also guarantees that you have more people participate. In response
to the question about making sure that we have a higher turnout,
which I passionately believe we need to have, holding them on
the same day makes sense.
Dr Pinto-Duschinsky: My comment
is that actually the same day/not the same day is a calculation
of interest. I think that it is thought by the proponents of AV
that they are more likely to get it through if it is put quickly
and if it is put on the same day, and it is that calculation.
I think all of the other evidence is secondary, if we are really
frank.
Q30 Stephen Williams: Can I just
challenge that because everyone in Wales and Scotland will be
voting and 84%, I think, of the people of England will have the
opportunity to vote in a local election so, therefore, the vast
majority of people in England, Scotland and Wales will be voting.
Is that not better than having a referendum on a different day
when probably fewer people will vote?
Dr Steven: Yes, the Electoral
Reform Society does not have a set-in-stone line on this, but
it is very much what works and whatever is clearest in the circumstances
with voters. I think, speaking perhaps personally, I would say
that there is evidence that voters are able to vote in different
elections and in different contexts at the same time, and there
is comparative evidence for that from similar advanced industrial
democracies. I think that is probably what I would say.
Q31 Mrs Laing: I certainly do not,
and I have been accused of doing so, underestimate the intelligence
of the electorate; of course the people who go to the polling
station can distinguish between voting for one thing and another.
However, is it not the case that, where there are national elections
in Scotland, Wales and Northern Ireland, the turnout is likely
to be proportionately much larger than for local elections in
84% of England and, therefore, is it not likely that there will
be, on this particular day that it is proposed, differential turnout
and, therefore, a result which is, at best, challengeable as being
fair in this referendum?
Mr Facey: I suppose, if you assume,
and you are presuming effectively, that voters in Scotland, Wales
and Northern Ireland are likely, therefore, to vote particularly
one way or another in greater numbers—
Q32 Mrs Laing: No, I am not, but,
supposing they vote 50% one way and 50% the other way, there is
still a differential turnout that there are more people voting
and having their say there. I know it is a question of choice,
but, therefore, I will argue, the result of the referendum will
be less watertight.
Mr Facey: What I would say is
that we always have in elections differential turnout. The reality
is that the voters of Liverpool, you can argue, because of their
electoral system, tend to have turnouts in some of their seats
which are way below 50% in a general election. I would not argue,
and I do not argue, that the result of a general election is,
therefore, illegitimate because you have differential turnouts
in different parts of the country. I think that, if we are looking
at ideal days to have referenda, and this is a point which we
have argued way before we actually had this particular circumstance,
we have always said, and we have said to the Electoral Commission
that we disagree with the Electoral Commission, that holding elections
and referenda on the same day is better because it means that
you do get more. We know from the experience of local referenda
on mayoral issues that, when you hold them on days outside the
normal cycle of when people go to the polls, turnouts are considerably
less, and I think that that is actually more damaging than the
problems which you are identifying.
Dr Pinto-Duschinsky: I think there
is a completely different problem though, which is that, if you
say that you want a referendum date that is fixed for May and
if there is a certain amount of time before that which you need
for the campaign, you then assume that the legislation can get
through the House of Commons in a very short time. I think that
we will find that there are enough difficulties, and I have brought
up some with the funding rules for the campaign, that I do not
believe that we can responsibly have our Parliament discuss all
of this and pass the legislation in time for a referendum next
May. It would require, I think, a fairly casual look at what are
very real questions of process in order to do that, so I think
the question of whether you want it on the same day or not is
moot, from my point of view.
Chair: Can I just gently remind, or chide,
my colleagues that we now know there will be a second reading
on these bills in September, so we do not need to do our second
reading speeches today when we are trying to get information from
our esteemed witnesses!
Nick Boles: I could not be less interested
in the timing of the referendum. What I am interested in is why
you seem to think that it is likely that people will choose to
answer the question posed rather than expressly looking in on
something else completely different. Is it not the case that in
referenda around the world there is lots of evidence that actually
the voters take it as an opportunity to send a quite different
message than the one that they have been asked?
Tristram Hunt: Very briefly, in your
evidence to the Committee on Standards in Public Life, Dr Pinto-Duschinsky,
you, first of all, make an interesting critique of the Electoral
Commission in terms of its decision about where the £5 million
grant is given to the campaigning organisations and, secondly,
you say that there are problems concerning the definition of `foreign'
and `in-kind' donations.
Q33 Chair: I will ask a third question.
I have been passionately interested over many years in pre-legislative
scrutiny and I believe that, since legislative scrutiny does not
work, we need to invent something that does, so we call it `pre-legislative
scrutiny'. Sir George Young, in a letter to the Liaison Committee
yesterday, reinforced his view that every bill should receive
12 weeks' pre-leg scrutiny. We have managed, by forcing this issue,
to get probably two, possibly three, weeks' pre-leg, and I know
particularly, Mr Facey, that you urged that the second reading
be held extremely quickly, so my question to you is: do you think
this is denying the educative effect that pre-legislative scrutiny
can have on Members of Parliament and the public? Finally, what
do you think the question should look like on that referendum
paper? There are four questions there, and I am sorry to take
them all in a bunch, but comment on them as you wish.
Dr Steven: In relation to, yes,
the common practice that referenda are votes to hurt the Government,
that is going to be more complicated on this occasion because
the coalition is somewhat split in terms of this, so it probably
does not apply, I suppose. I cannot comment on the second or the
third questions really. In relation to the question, it would
probably be wrong of to make up on the hoof what I think the question
should be in terms of the wording. There is no question that the
Electoral Reform Society will be happy to make a written submission
in terms of what they think the form of words should be, but I
probably should not do that now.
Q34 Chair: Maybe some civil servants
have already made it up on the hoof! It may be that that is so,
so you should not feel embarrassed about having a go yourself!
Dr Pinto-Duschinsky: To my understanding,
there has been an agreement within the coalition about the wording,
but in terms of pre-legislative scrutiny, I think I would absolutely
back what you have said, that the whole Bill is very complicated
and it would be a mistake to rush it through. I think the second
reading in September, as I have said before, is certainly premature
and we cannot look through all of the issues that need to be looked
at during the recess in August, there is a lot of work to be done,
so I think it would be very much against the public interest to
have that in September. I was very grateful to Dr Hunt for looking
in detail at several points to do with this Bill, and about the
registers as well, which I have read with interest and taken very
seriously his comments. About the Electoral Commission choosing
the group, it is not my criticism of them. Sam Younger himself
looked at that problem and it is an inherent problem there. On
the question of foreign donations, I think, you have a ban on
foreign donations and you also have a definition that a donation
can be `in-kind'. Now, what this means, for example, is that,
if some foreign politician, say, they got somebody from Australia
over, speaking would be an in-kind donation and, according to
the definition, you have to count a service as a donation if it
is done in office hours, so, for example, we would have to reckon
whether, if an Australian was doing it, it was our office hours
or Australian. The fact is that the law, the whole of that chapter
of PPERA that was passed in 2000 which went against a number of
the recommendations of the Neill Commission in 1998, it was just
passed very, very quickly and I think that there are a whole lot
of questions. When does the campaign period start? I read, and
would have to go back to, the very admirable Oonagh Gay who wrote
a parliamentary note on this as to what happens. I think the laws
on expenses will probably be unworkable and unenforceable, and
really do, unless they just be a dead letter which is a possibility,
need to be looked at very carefully before we move to second reading.
Q35 Tristram Hunt: We will give IPSA
that job!
Mr Facey: You said something to
me earlier which implied that I speak on behalf of the British
public. I would not be so arrogant. I speak on behalf of our members
and a few more than that. In terms of the question about referenda
and whether people vote on the question, to be honest, it is a
very difficult one to answer, but in general elections I am not
sure they vote on the question either. There is not a lot of evidence
that they vote on manifestos. Your smile is equally as important
to a voter as the issue. I believe passionately, ultimately, that
people are sovereign and I believe that people have the ability
to take decisions on things, and I think that they are capable
of doing it. Does that mean that everybody voting will vote with
the same degree of interest or be as studious about it? No, and
it is a fault of democracy, but I think democracy is a better
system than any other we have and I think that, if you are going
to change a voting system, voters deciding in a referendum is
probably the best way we have, however faulty that may be. In
terms of the Chair's question about pre-legislative scrutiny,
I have two difficulties. One is, I absolutely agree with you,
that pre-legislative scrutiny is extremely important, and we have
said so on numerous occasions, and I believe that in this case
it is equally important. Speaking as a campaigner, I need to know
as soon as possible when the referendum is going to be, particularly
as someone who first started planning a referendum on electoral
reform back, as the questioner pointed out, nearly 15 years ago
when we were first promised a referendum and, as someone who has
constantly been on tenterhooks as to when we will get it, you
can understand my enthusiasm to actually have a date when I know
that it is going to happen rather than simply a promise by politicians
in a manifesto that it may happen because, unfortunately, so far
my hopes about those promises have always been dashed and, therefore,
I want to see the legislation.
Q36 Chair: And on the question?
Mr Facey: On the question, I am
a great believer in Ronseal(?), that things should be as simple
and clear as possible. The way the present system works is that
the Electoral Commission itself will have to be consulted on the
question, and I think it should be something as simple as, "Are
you in favour of changing the electoral system for the House of
Commons to the alternative vote?" but I accept, as someone
who has declared an interest that I will be campaigning on one
side, that maybe I am not the best person to decide on the question.
Chair: We now move on to boundary changes
and a smaller House of Commons.
Q37 Mr Turner: I have 110,000 constituents,
my colleagues have 25,000 or 35,000 and many, many colleagues
have between 50,000 and 88,000, so there is a huge variety of
single-Member constituencies. Does that matter?
Dr Steven: Does it matter that
there are different sizes of constituency?
Q38 Mr Turner: Yes.
Dr Steven: Well, I was aware that
you were going to ask this in advance and I have thought about
it a little bit. There are really only 40 constituencies that
are, if you like, outliers. Most constituencies are within about
plus or minus 20% in terms of the average. There are really only
about 40 constituencies, by my reckoning, that are really incredibly
big or incredibly small, so it is a question of whether the issue
is significant enough to require attention.
Dr Pinto-Duschinsky: It matters
in democratic theory because votes should have the same value,
and we have not only one person, one vote, but, if theoretically
you had a constituency, as we had before many years ago, of two
people and another one of 50,000, then obviously the votes would
have a different weighting. Now, we have got to a ratio of roughly
four to one or five to one with the outliers, so it matters for
that reason of theory. I think that it is accepted in some of
the international conventions that you can go away from equality
as long as that has no predictable party-political effect, but,
if those inequalities do tend to favour particular parties, then
the democratic process is being, in some way, skewed in an undesirable
way. There is argument among academics as to how far the Conservative
Party is damaged by the inequalities, and I think it is accepted
that they do tend to lose out at the moment.
Mr Facey: I think it is desirable,
if at all possible, that constituencies are approximately the
same size, all things being equal. If you can achieve that, then
it is something which will be a positive. I also accept that there
are other considerations, not just simply the absolute number
of constituents, in that nobody is advocating that we should have
a seat which crosses the English-Scottish border as something
which would be desirable and, therefore, I think there are other
considerations which we have to take into account as well, but
it is certainly desirable that they are approximately the same
size.
Dr Pinto-Duschinsky: I think it
is the case that your constituency is in a very special position,
being an island and of having a number of voters that is very
large, electors, in comparison, so we do have a dilemma because,
if you divide it in two, it is under quota and, if you leave it
as it is, it is over quota. I think that the trouble is that it
is really a one-off problem and the question that arises then
is whether you give special treatment directly and say that the
Isle of Wight will be an exception, and I can see some possible
merit in doing that. I think the problem could be that, once you
get into exceptions, and I think that there have been arguments
in negotiations for 15 exceptions, then you start destroying the
whole point of equalisation if everybody has the exception. I
think it is the reality that the Isle of Wight has probably the
strongest case of the over-populated seats, and I sympathise with
it. Whether you then want to go down a road that actually destroys
the whole scheme of equality is a difficult one, and I think that
is the real dilemma.
Q39 Mr Turner: Can I suggest another
way, and that is that we, all of us, all the Members of Parliament,
cast, in my case, 110,000 votes and others 25,000 votes or 55,000
votes or whatever, and they go through the lobbies and zap the
cards to say how much we have, and that seems to be sensible.
Mr Facey: I think it is a very
interesting idea. I have to say, though, that I normally hear
from advocates of proportional representation who argue that Liberal
Democrat MPs and Green, because they have so many thousands more
votes per those parties, should effectively be able to go through,
tap in, and effectively a Liberal Democrat MP equals 12 Labour
or Tory, so, if we go down that route, it is going to be a more
interesting debate. One simple practicality would be that we would
have to turn [this building] into a museum because we could not
use the existing corridors and voting chamber and everything else,
and we would have to move to Solihull and whatever else. The difficulty
is that, as soon as you go away from the concept that effectively
a Member of Parliament has an equal value, you are having, in
an extreme way, different types of parliamentarian in a way which
is even more extreme than some of the complaints about Scotland
or Wales or wherever else, and I think the better way of dealing
with it would be to move to a multi-Member system whereby actually
some of these problems would actually be less of a problem than
they are under the single-Member system, but that is not an option
which we have before us.
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