House of Commons - Parliamentary Voting System and Constituencies Bill - Political and Constitutional Reform Committee

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

2 Voting system for parliamentary elections

Referendum on the alternative vote system

13. During our evidence-taking we have heard and received written evidence from advocates both for retaining the existing first-past-the-post system for UK parliamentary elections and for replacing it with an alternative vote system.[23] We do not take sides on this issue which will be hotly debated in the coming months, but we commend our evidence to the House and to those beyond it on either or neither side of the argument.

PROPOSAL TO HOLD A REFERENDUM

14. Clause 1(1) of the Bill proposes that a referendum be held on the voting system for parliamentary elections.

15. We welcome the Government's decision to hold a referendum on a change to the voting system rather than seeking to introduce a change directly through legislation. It seems to us entirely appropriate that the public should have the opportunity to make this choice, given the direct vested interest that politicians and the political parties have in the way in which Members are elected to the House.

16. The holding of a referendum on this issue is in our view also in keeping with the recommendation from the House of Lords Constitution Committee in the last Parliament that "if referendums are to be used, they are most appropriately used in relation to fundamental constitutional issues".[24]

17. We note, however, that there is no government proposal to hold a referendum on parallel political and constitutional reforms considered in this Report and in our recent Report on fixed-term parliaments, despite the fact that these are also arguably "fundamental constitutional issues". We do not offer a specific view on whether referendums should be held on the other political and constitutional reforms proposed by the Government. There is, however, no clarity as to whether any particular change requires this form of popular assent or not. Indeed, under present arrangements, a future government could, if it chose, ask Parliament to bring about further alterations to the electoral system through legislation without any requirement to hold a referendum.

18. We have heard in evidence that "this kind of uncertainty...which is unsatisfactory from a democratic perspective - is a product of the lack of a codified constitution in the UK." Similarly, the House of Lords Constitution Committee has noted that "a written constitution could provide a more precise definition of a 'constitutional issue', and define which issues required a referendum before any change".[25] We will return to this issue.

19. Different opinions have been expressed on whether a threshold should apply in the referendum, meaning that a reform would take place only if a given proportion of the registered electorate voted in favour.[26] This is not an issue on which we intend to give a view in this Report.

PROPOSED REFERENDUM DATE

20. Clause 1(2) of the Bill states that the referendum must be held on 5 May 2011. On that day voters in Scotland, Wales and Northern Ireland are scheduled to go to the polls to elect members of the devolved administrations. In addition, 81% of the electorate in England will be eligible to vote in local council elections.

21. Commenting on the Electoral Commission's planning for that date, Jenny Watson, Chair of the Electoral Commission, told us: "We have been very clear about what needs to be done to achieve a successful referendum. The rules need to be clear six months in advance so that everyone can prepare."[27] Peter Wardle, Chief Executive of the Electoral Commission, described the measures that needed to be in place:

One of them is clarity about the rules that will apply not just to the referendum, but to all the elections that will take place. That is the combination issue that we have already touched on. Alongside that, there needs to be certainty for those administering the referendum and the elections, from the Chief Counting Officer at the Electoral Commission right down to local authority level, that the Government have understood correctly, assessed and made provision for sufficient funding for all of this to happen, because it is a fairly complex funding arrangement. There are savings, but there are also costs to running more than one poll on the same day. As long as that is clear—so far, the indications from the Government are that they have heard that message and intend to work towards clarity on what the rules will be and the funding, six months in advance—that meets our first concern.[28]

Mr Wardle also told us that the Electoral Commission would need a reasonable amount of time to prepare information for the public on the referendum.[29]

22. The Electoral Commission's concerns follow an independent report it commissioned on the problems experienced at the polls by some voters during the 2007 Scottish elections. The report concluded that one of the factors that led to a high number of spoilt ballot papers were a late ministerial decisions[30] that undermined an otherwise "good public information campaign."[31] The report also recommended that changes to relevant election law should be in place six months before polling day.[32]

23. Even given the speed of the passage of the Bill through this House, the House of Lords is unlikely to have the opportunity to begin to debate the Bill before 5 November 2010, six months before the referendum is due to take place. The Parliamentary Secretary for the Cabinet Office, Mark Harper MP, indicated that the Government accepted the Electoral Commission's assessment that significant changes to the 'ground rules' for the referendum after 5 November 2010 could imperil the success of the poll. Rejecting the suggestion that the Bill should provide for the poll be held on a later date, Mr Harper said:

There are risks in doing it, so the Government are working very closely with the Electoral Commission, which will run the referendum, and with the electoral administrators who are running the other elections on those days to ensure that we manage the risks very carefully. The Commission is looking closely at proceedings in Parliament and at the views of Members. If the Bill is amended either in this House or in the other place, the Commission will take a view on the impact that that will have on the running of the referendum.[33]

Mr Harper did not commit the Government to implementing any reassessment of the risks of holding the referendum on 5 May, telling us: "The Electoral Commission will consider any changes and comment on them. Obviously, we will listen carefully to what it says and work very closely with it."[34]

24. In 2002 the Electoral Commission advised the then Government not to hold a referendum on the euro at the same time as Scottish Parliamentary and local elections and Welsh Assembly election in May 2003. It concluded: "Referendums on fundamental issues of national importance should be considered in isolation."[35] In November 2009 the Commission, as part of the preparations for the referendum on the powers of the Welsh Assembly, reconsidered the issue of combined polls. Jenny Watson explained to us:

We went back to the international evidence and the international standards to look at what that told us about combination and the impact on the vote…Having done that, we concluded, after considerable discussion, that the evidence was not conclusive enough to support a position that said, "You should never combine a referendum with another event." So, we adopted the position…that we would consider each case on its merits. There may well be cases in which we would consider a proposal for a combination of a referendum and another poll but would say that it was not suitable to go ahead…But there would be other cases in which we would say, "Yes, we think this can be done. There are risks, but here is how they can be mitigated."[36]

25. The Electoral Commission has specifically considered the risks of holding multiple polls on 5 May 2011, concluding:

It is possible to successfully deliver these different polls on 5 May, but only if the risks associated with doing so are properly managed. We've set out what we think these risks are and will make it clear during the passage of the Bill if we do not feel they have been adequately addressed.[37]

26. The Scottish First Minister has condemned the proposal to hold the referendum on the same day as elections to the Scottish Parliament. He wrote to the Prime Minister:

I believe that your proposals to hold a referendum on the same day undermines the integrity of the elections in Scotland, Wales and Northern Ireland. These elections are of profound importance to our citizens and I believe they have the right to make their electoral choices for the respective devolved chambers without the distraction of a parallel referendum campaign on the UK voting system … There must also be grounds for concern about the management of voting in polling stations. At several elections in recent years, including this year's General Election, a significant number of polling stations failed to cope with the number of citizens wanting to vote. I believe there is a real risk that these problems could be exacerbated in Scotland, Northern Ireland and Wales because of the complications described above. Returning officers will face additional difficulties with counting arrangements arising from the number of different ballot papers. The question also arises as to which count should take place first … It is not clear how the decision to hold the AV referendum on the same date as our elections, and to do so without any prior consultation, fits into the spirit of that [respect] framework.[38]

27. A spokesperson for the National Assembly government in Wales expressed similarly strong views:

There should be no distraction from the national assembly election. That is why we have agreed with other parties in the Assembly that our own referendum should not be held on the same day as the Assembly elections. The first minister therefore intends to make clear to both the prime minister and the secretary of state for Wales at the earliest opportunity that we are strongly opposed to the AV referendum being held on the same day as the Assembly elections.[39]

28. The Scottish Youth Parliament, representing Scots between the ages of 14 and 25, carried out a poll amongst its members which addressed some aspects of the Bill. It found:

More than two-thirds (68.1%) felt that the referendum and the election should not be held on the same day, with some using powerful language to express their concern. One felt that it "would undermine the Scottish elections" with others feeling that it would "belittle" both events, and that it "shows very little regard for Scotland and its politics." Others were concerned about the potential for confusion between the campaigns and the choices presented to voters in the polling booth, with similar arguments to those used to caution against elections to Westminster and Holyrood being held on the same day.[40]

29. The practical implications of holding multiple polls on the same date have been highlighted to us by the Association of Electoral Administrators:

The potential for voter confusion and the additional workload in dealing with public enquiries arising from these different combinations of electoral events on the same day held on different franchises and operating different voting systems should not be underestimated. It is likely that returning officers would need to reduce, where practicable, the number of electors allocated to each polling station. This would increase the number of polling stations with a corresponding increase in the number of polling staff to ensure that the polls run efficiently and that adequate help is available to voters on polling day. These additional costs would need to be funded.[41]

30. Academic commentators were more positive about the electorate's ability to participate meaningfully in multiple polls. Professor Robert Hazell, of the Constitution Unit at University College, London, told us that "there is no social science evidence that we are aware of" that voters are confused by the "clash of political arguments about different issues taking place at the same time". Regarding the widespread concern that the election of members of the devolved assemblies would be overshadowed by the UK-wide media coverage of the referendum, Professor Hazell told us:

the likelihood is that the referendum is the second order poll, and that it will be overshadowed by the elections rather than vice versa. That has been the experience in other countries which have had referendums at the same time as elections. In Canada, and in New Zealand in 1993, the political parties remained silent on the referendum issue, not least because they were concentrating their efforts on fighting the election, not the referendum campaign.[42]

31. Dr Martin Steven, of the Electoral Reform Society, and Dr Matt Qvortrup, who has carried out extensive research into referendums, agree with Professor Hazell that voters are able to distinguish between competing political arguments, Dr Qvortrup writing to us that "the voters are normally able to distinguish between measures and men and referendums on the same day as elections do not significantly affect the outcome of either". He cited examples such as "the referendums on a change of the electoral system in Ireland 1959 and 1969" which were lost "although the party that campaigned for a change, Fienna Fail, won the elections on the same day".[43]

32. Professor Patrick Dunleavy, of the London School of Economics, has researched voters' approach to multiple polls by examining ballot papers:

In June 2004 citizens voting in London had the opportunity to cast five simultaneous preferences. As in May 2000, the GLA Mayor and Assembly elections allowed voters to simultaneously register up to four preferences, to differentiate between their evaluations of mayoral candidates and political parties, and to signal complex preference structures to politicians. And on the same day in the 2004 European election Londoners had the additional choice of candidates to represent them in the European Parliament. As in 2000, we found that citizens who voted made use of this opportunity in sophisticated and successful ways.[44]

33. We were told by Peter Facey of Unlock Democracy, an organisation campaigning for electoral reform, that those who argued that the electorate would be confused by participating in multiple polls were "underestimating the intelligence and the good sense of voters".[45] The Government also agrees, and the Parliamentary Secretary for the Cabinet Office has told the House that a Member who suggested otherwise "underrates his fellow Scots and their capacity for decision making".[46]

34. Efficiency has also been cited as a reason in favour of holding the referendum on the same day as other elections, with the Minister telling us that it would save about £30 million, compared with holding a stand-alone referendum: "Some of that benefit accrues to the referendum campaign; the rest of the saving, of course, accrues to the individual elections taking place, because they can share some of the resources for the referendum".[47]

35. Turnout is also likely to be boosted by the fact 84% of the UK electorate will be eligible to vote in polls other than the referendum on 5 May 2011. Peter Facey, of Unlock Democracy, supported the adoption of the date for the referendum primarily for that reason.[48] Professor Robert Hazell told us that international comparisons showed that turnout increased where polls were combined. He noted that turnouts were also high when referendums were held alone if the issue was of "considerable national significance" such as the secession of Quebec, but that the international evidence suggested that electoral reform did not fall into this category.[49] The Hansard Society has also suggested that the public does not set a high premium on political reform; in the Society's Audit of Political Engagement "only one in five (19%) report having discussed 'the electoral system' in the last year."[50]

36. The flipside to a boost in turnout arising from holding multiple polls is that voting in the referendum may be unevenly spread across the UK. Professor Robert Hazell observed, however, that: "General elections see differential turnout, between different regions in the UK and between different constituencies, but people do not challenge the fairness of the result. What matters is that everyone has an equal opportunity to vote, even if they choose not to exercise it."[51]

37. The Electoral Commission told us that "voter fatigue" was one factor that they considered in their assessment of the risks of multiple polls being held in quick succession. The Commission identified a particular problem in Wales where the referendum on additional powers for the Welsh Assembly could have resulted in the electorate being asked to vote three times in a short period, had the referendum and devolved administration elections been severed.[52] It was reported in late September 2010 that the preferred date of the Welsh Assembly for the referendum on additional powers was 3 March 2011, and the Welsh Secretary was likely to agree to that request.[53]

38. We asked Mr Harper why, given the possible risks, the Government wanted to hold the referendum on 5 May 2011. He responded:

The Government have made it quite clear that we have made a commitment to do it, and we want to get on and do it. We have been very open...There are risks in doing it, so the Government are working very closely with the Electoral Commission, which will run the referendum, and with the electoral administrators who are running the other elections on those days to ensure that we manage the risks very carefully.[54]

39. The Electoral Commission's view is that the risks of holding the referendum together with other elections on 5 May 2011, clearly to a very tight timetable, can be managed if the rules for the referendum are sufficiently clear six months in advance. At the current rate of progress the Parliamentary Voting Systems and Constituencies Bill will be before the House of Lords in November 2010, but will by no means have completed its passage through Parliament. If the Bill is significantly amended in either House, the Government should reconsider the timing of the referendum.

Combination provisions

40. Separate from the issue in principle of whether the referendum should be held on the same day as other elections, the Electoral Commission raised with us the failure of the Bill as currently drafted to allow for the combination administratively of the referendum with any other polls to be held on the same day. Andrew Scallan, Director of Electoral Administration at the Electoral Commission, explained the consequence of this to us:

If [the Bill] isn't amended to allow for combined polls as distinct from separate polls held on the same day, it would be necessary to have separate polling stations for each event that takes place. So if you imagine your typical school hall with a polling station, which may be a table with two members of staff sitting behind it, there would need to be a table for each event that is taking place on the day. Notices would be about each separate event.[55]

41. Without combination provisions the local authority would also be required to send out separate postal ballots with the attendant costs. The Chair of the Electoral Commission was able to assure us, however, that: "Once those rules are there—I hesitate to use the word 'straightforward'—it is then a relatively straightforward process for us to be able to make sure that the thing can run properly."[56] Mr Harper confirmed that the Government intended to bring forward amendments to the Bill to allow for combined polls, and told us that they did not appear in the Bill in the first place "because we wanted to be able to work with the devolved Administrations and officials in each of those countries about how best to combine them and work with the Electoral Commission".[57]

42. Provisions to allow the holding of combined polls are vital for the referendum to be administered successfully. We therefore welcome the fact that the Government will be bringing forward such provisions, but trust that it will get them right in order to avoid further significant change to the Bill at too late a stage for the referendum to be held safely on the date envisaged.

The referendum question

43. The Bill provides that the question to be asked at the referendum should read: "Do you want the United Kingdom to adopt the 'alternative vote' system instead of the current 'first past the post' system for electing Members of Parliament to the House of Commons?"[58]

44. Under the Political Parties, Elections and Referendums Act 2000 (PPERA), the Electoral Commission is required to consider the wording of the referendum question and publish a report on the question's intelligibility.[59] The Electoral Commission published its report on 30th September 2010.[60]The Government is not obliged to act on any recommendations in the report.[61]

45. Professor Patrick Dunleavy told us that 'alternative vote system' "designates a whole class of systems - single office holder, multiple preferences, instant run-off".[62] He posited a number of ways the specific system could be explained to voters including "a footnote [to the question] possibly, or a clarificatory memo or something of that kind, in the booklet which goes to voters and possibly available in the polling booths for people to check what exactly it is they are voting for".[63] Professor Justin Fisher from Brunel University rejected the suggestion the ballot paper might contain a number of options rather than a 'yes or no' question': "I think having the range of choices would be catastrophic...I think it is the job of the House to decide which is the most appropriate one before putting it to the voters."[64] Dr Graham Orr and Professor K Ewing agreed that simplicity was key: "It is vital that the referendum question be as simple as is reasonable whilst remaining descriptive, but above all that it not be tendentious".[65]

46. The Electoral Commission examined the language, structure and framing of the referendum question in the light of public opinion research and expert opinion. They tested suggested improvements to the wording on focus groups and in one to one interviews. The Commission concluded that, while the widespread lack of understanding of voting systems could be addressed by public information, the language used in the proposed question was overly formal.[66] While abbreviations are usually believed to inhibit comprehension, the Commission found that using "MP" instead of Member of Parliament" and "UK" instead of United Kingdom improved voters' understanding of what they were being asked.[67] The study also concluded that splitting the question into two short sentences made it easier to read.[68] The Commission therefore recommended that the question read "At present, the UK uses the 'first past the post' system to elect MPs to the House of Commons. Should the 'alternative vote' system be used instead?"[69]

47. Our overriding concern when considering the referendum question is that voters know exactly what they are voting for. The Electoral Commission's duty to provide public information is vital to achieving clarity in the minds of the electorate. We accept the Commission's conclusions on the wording of the referendum question and recommend the Government amend the wording of the referendum question as suggested. If the Government fail to follow the Electoral Commission's conclusions we recommend the House scrutinise the reasons for that decision with particular care.

Conduct of the referendum: design of the ballot papers

48. Clause 3(2) provides that the proposed electoral forms are set out at Part 2 of Schedule 2 of the Bill. The forms are prescriptive: the Bill provides that they must be printed exactly as depicted.[70] The Electoral Commission raised a number of concerns over the design of the proposed papers, noting that they did not follow the guidance on optimising the accessibility and usability of electoral forms contained in the Commission's 2009 report, Making Your Mark.[71] In evidence to us Andrew Scallan observed "some of the forms that are used now were also used in 19th-century legislation... [and] some of the legislative language...is election-law friendly rather than voter-friendly".[72] Jenny Watson observed that one way of ensuring clear and accessible design was to give "the Chief Counting Officer [Jenny Watson herself] slightly more discretion in some of the materials that voters will receive".[73]

49. Mr Harper told us he was aware of the Electoral Commission's representations:

the Electoral Commission has raised some concerns and has requested changes to the forms. We are discussing with it some of the good points that it has made about what the mechanism for that would be...You could either amend the primary legislation or you could look at powers to amend the form subsequently. We are thinking about the most sensible way to do that. If we need to amend the legislation we will obviously bring those amendments forward for discussion in Committee. But yes, the Electoral Commission has raised those concerns with us and we are thinking about them. They are about the forms, not about the ballot paper, which has always been specified in legislation. Just on the forms, we will adopt the same consistent approach that we have used for previous elections, so we have not undergone a radical redesign of everything. We have pretty much copied across from existing elections and processes and used those as our starting point in the legislation.[74]

We are not certain that the distinction drawn by the Minister between the forms accompanying the ballot paper and the ballot paper itself is particularly relevant. What is important is that the Electoral Commission should have been consulted on this part of the legislation before it was published.

50. Hasty drafting and lack of consultation appear to be responsible for the problems raised by the Electoral Commission with the way in which the Bill provides for the design of the ballot papers. We trust that these issues will be sensibly resolved at Committee stage, but regret that they were not resolved earlier.

Control of loans etc to permitted participants

51. Clause 4 introduces similar rules on campaign finance to those that apply during general elections. Rules on campaign finance are regulated by the Electoral Commission. One key area for the referendum is that the Commission has a duty to consider the appointment of a designated lead organisation for each side of the question which is then eligible to receive grants of up to £600,000. The Commission is required to appoint either a lead organisation for each side or not at all. Dr Graham Orr and Professor K Ewing, who specialise in political funding, have told us that this is a complex decision:

In many ways the referendum is not really a straightforward battle between supporters of first-past-the-post and supporters of AV, since there are other voting systems that could have been proposed, notably proportional representation. When multiple choice is limited to binary alternatives, the status quo can have an undue and artificial advantage: for example supporters of first-past-the-post may make odd bedfellows with supporters of proportional representation, to defeat the 'compromise' option of AV.[75]

52. Lisa Klein, Director of Finance at the Electoral Commission, while observing the legislation did not set out the process by which a lead organisation was to be appointed, was able to reassure us that the Commission had carefully considered how to apply the statutory test and would be able to designate within the given time limits.[76]

53. A second issue raised with us during our inquiry was the ambiguous position of the media under the funding rules as currently drafted. Dr Orr and Professor Ewing have explained the situation to us as follows:

Third parties [campaigning in the referendum] are limited to £500,000. Curiously, unlike in the spending limits that apply to elections, the definition of referendum expenses does not expressly exclude 'the publication of any matter relating to an election, other than an advertisement, in ... a newspaper or periodical'.[77] On the contrary, the list of referendum expenses refers to 'any material to which section 125 applies':[78] this includes any material which provides general information about the referendum, or puts any argument for or against any particular answer to the referendum question. The Act would thus appear to limit newspapers to 'spending' at most £500,000 each in providing information or in advocating one position or another during the referendum campaign period. Moreover, newspaper companies will be able to do so only if they comply with the registration or notification procedures necessary to be a permitted participant; otherwise they will only be able to spend up to £10,000.[79]

54. The submission went on to describe this provision as "an apparent oversight", although it also noted "given the concentrated power of newspaper proprietors there is no reason in democratic theory why they should have unlimited rein to campaign when parties and other civic groups do not" and suggested one "approach might be to amend the law...to apply the existing referendum rules in PPERA so that they apply also to general elections" rather than the other way round.[80] Professor Justin Fisher, of Brunel University, agreed that the failure to exempt the media from funding restrictions was "almost certainly an oversight" but considered the possibility of the funding rules applying to newspapers and broadcasters was a real one: "in the passage of this legislation there ought to be some amendment, otherwise you could find yourself in a position where the newspapers would be hamstrung from taking a particular view".[81]

55. Lisa Klein confirmed the Electoral Commission was aware of the "ambiguity"[82] and that it could in theory lead to media organisations being prosecuted if there was a breach of the rules. Prosecution could be instigated following a referral by the Electoral Commission to the police or arise as the result of suspicions by the police themselves.[83]

56. It is likely to be in the public interest for a free media to be able to comment openly and without restriction during the referendum campaign, and therefore to be exempt from the funding restrictions which apply to campaigning groups. Members of this Committee have tabled an amendment to this effect which we ask the House to consider.

23 For example, see Ev 220 for both sides of the argument. Back

24 Referendums in the United Kingdom (12th report 2009-10, HL99), para 94 Back

25 HL 99, para 102 Back

26 See for example, Ev 82 and HC Deb 6 September 2010 Back

27 Q 224 Back

28 Q 247 Back

29 Q 254 Back

30 The report criticised delays in ministerial decision-making on matters of electoral administration such as the timing of the count and design of the ballot paper. Back

31 Scottish Elections 2007: The independent review of the Scottish parliamentary and local elections 3 May 2007 (Gould et al) Electoral Commission, October 2007 Back

32 Ibid. Back

33 Q 343 Back

34 Q 347 Back