Parliamentary Voting System and Constituencies Bill - Political and Constitutional Reform Committee Contents


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.



 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2010
Prepared 20 October 2010