The value of PROPER scrutiny

You may recall that last year I drew attention to the frantic attempts of the Political and Constitutional Reform Committees to draw attention to the complete lack of scrutiny that was being allowed into the new Coalition's constitutional reforms. In particular they were concerned about the Parliamentary Voting System and Constituencies Bill. On 27th July the Chair wrote to Nick Clegg saying -

You wrote to me last week about the Parliamentary Voting System and Constituencies Bill, and the Fixed-term Parliaments Bill.


The bills were published on 22 July. Both are to receive their second reading in September. For the Parliamentary Voting System and Constituencies Bill, this gives my committee a grand total of two clear sitting days in which to consider and take evidence on the bill before second reading. The time that we have to scrutinise the Fixed-term Parliaments Bill is only marginally less inadequate.


Both bills are, as you say, "fundamental to this House and to our democracy". Contrast this with your approach to House of Lords reform, where a draft bill will be published before the end of the year, which will then be subject to full pre-legislative scrutiny by a joint select committee over several months before a bill is formally presented to Parliament. On what principle can you justify this different treatment of legislation affecting the two Houses?

The Leader of the House has told the Liaison Committee that your government remains committed to pre-legislative scrutiny, and that proper pre-legislative scrutiny requires at least twelve weeks. Even though these two bills clearly deserve this degree of proper pre-legislative scrutiny, I have made every effort to adjust the committee's schedule to meet the government's legislative timetable, and I have written to you twice, on 25 June and 6 July, to try to find a window, however small, within which some reasonable level of committee scrutiny of the government's bills could take place. I have had no reply to either of my letters.

Your legislative timetable has put me and my committee in an extremely difficult position. When the House agreed to establish the committee, it did so, in the words of the Deputy Leader of the House, "to ensure that the House is able to scrutinise the work of the Deputy Prime Minister". In the case of these two bills you have denied us any adequate opportunity to conduct this scrutiny.

The legislation was then rammed through the House of Commons - and attempts were made to indimidate Peers into speeding the process through in the Lords. Opposition - and Crossbench - Peers complained - but the Government pushed on. Again you may recall the Washminster posts in January and February.

The bill - now an Act of Parliament - was a compromise between the Conservatives - who wanted to slash the number of MPs - and the Lib-Dems who wanted a referendum on a change to the voting system. It was key to the coalition agreement.

So what did Nick Clegg gain for his party? The referendum was held - and lost, killing the chances of electoral reform for a generation or more. But now a study by Democrat Audit suggest that the results of the boundary review could be devastating for the Lib-Dems

The Guardian reports that the study suggests that "Labour would lose 17 seats (6.6% of their constituencies), the Tories 16 (5.2%) and the Liberal Democrats 14 (24.6%). The Tory lead over Labour would remain stubbornly unchanged but the Liberal Democrats fundamentally weakened."


The Guardian report from Monday can be accessed here - and the more detailed information from Democratic Audit can be found here.
FIRST LESSON IN LAWMAKING - legislation needs scrutiny. Rushing things through and curtailing proper consideration often backfires. Nick Clegg may have condemned his own party to an electoral disaster (and that's not taking into account the current unpopularity of the party) by being the Minister who rushed this ill-thought out piece of legislation through.

When will some politicians learn?

There are some excellent studies suggesting ways that the effectiveness and quality of legislation could be improved -

Hansard Society's "Making Better Law"
The Institution for Government's "Government by Explanation"
The Better Government Initiative "Good Government"

Is now the time?

Events in recent months provide good arguments for the adoption of a written constitution - for Britain. The UK has traditionally relied upon "conventions" (legally unenforceable rules - but which all actors in the constitutional system regard as binding.) to check the abuse of power. In other words - and it has been surprisingly effective - 'good' behaviour is maintained because 'Englishmen don't do THAT sort of thing'. There are many theories why this, in effect social pressure, has worked. [warning to my students - in forthcoming tutorials I'll be discussing this in detail!]

But the weakness of this approach is becoming increasingly obvious. Social sanctions may not be enforced, or be effective in the face of someone determined to ignore the conventions. This is highlighted by the Coalition's approach to Parliament. {Now, I'm not saying that the previous Labour Government was virtuous in this respect, it too pushed legislation through too fast and without adequate scrutiny} - but the actions of the Coalition have become worrying.

This is best illustrated (though this is an example - it illustrates a pattern of behaviour) with the Parliamentary Voting System and Constituencies Bill. There was no pre-legislative scrutiny (understandable, as the Coalition was only created and entered power last May), but that should have meant a more measured approach for the bill in Parliament. Instead two very important constitutional measures were welded together . Both measures merit detailed scrutiny. Instead the bill was rammed through the Commons. I recommend reading the 1st and 3rd reports of the all-party Select Committee on Political & Constitutional Reform. There is now a serious crisis in the House of Lords as Peers seek to give the proposals the scrutiny they were denied in the Commons.

At issue are proposals to
(1) reduce the number of seats in the House of Commons by almost 10%
(2) major changes in the rules for redrawing constituency (distric) boundaries - an issue many British people have not yet appreciated the significance of
(3) the abolition of public inquiries as part of the redistricting process
(4) the speed at which the next Review must be completed - before the next election. It had previously been a more measured process - allowing for consultation and debate.
The term "gerrymandering" has ben raised many times - something the Brits have tried to avoid.

The Coalition's response to demands for more than cursory scrutiny has been to pack the Lords with new Coalition-supporting peers - so it will be nigh on impossible for it to be defeated (a break with the understanding between 1999 and 2010 that a Government should NOT have a working majority); to ignore the usual intervals between the stages of a bill - steamrolling debate - and moving closure motions - something not done for over 20 years, then twice in one week.

We can only rely on an "unwritten constitution" where the Government of the day respects the conventions and practices which protect against the bulldozing of controversial legislation (and to be honest that system hasn't been very effective for the last 40 years). Perhaps we now need to consider written, legally enforceable rules - because our trust in fair play and respect for the unwritten rules has been destroyed.

All through the night

It's now 7-10am on Tuesday at Westminster - and their Lordships are continuing with their debate which began on Monday afternoon. Lord Toby Harris has updated his blog as the night has gone on - it's worth following - it can be accessed here.

The live debate can be followed on BBC Democracy Live, which unlike BBC Parliament can be accessed from outside the UK.

I have to say that watching the live feed, I've been very impressed by the numbers of Peers in the Chamber listening to the debate on the Opposition benches. As the Government has found out, their Lordships have a lot of stamina!

A Stormy Week Ahead

This week could be an even stormier one in the House of Lords. The battle over the Parliamentary Voting Systems and Constituencies Bill has come close to its climax. The Government fears that unless the bill is passed quickly, the Electoral Commission will take the view that there is insufficient time to make the arrangements for a referendum on 5th May. [The bill is partly to give the legal authority for such preparations]. However progress in the House of Lords has been slow. While the government was able to rush this bill through the Commons (see the bipartisan criticism in the reports by the all party Political & Constitutional Reform Committee - 1st Report and 3rd report) - it has been unable to do so in the Lords - which of course is the strongest reason for having a second chamber. Last week the Leader of the Lords threatened to curtail debate - an action which, in my opinion was a big mistake, as it angered many Peers (already uneasy that the House of Lords is being packed by Coalition supporters - to give it an ample working majority).

This week three days will be dedicated to considering the bill - itself an almost unprecedented action - and there are likely to be late night, if not all night, sittings. The government's actions are now being described by peers as "overtly bullying tactics" which are "against both the conventions and the spirit of the House of Lords" It has even been said that "what the Government is doing with regard to this Bill threatens the fundamental role of the House of Lords as a revising chamber" which is "providing proper scrutiny of the Government of the day."

Lord Toby Harris wrote in his blog last Wednesday -

"The problem is that the Bill is enormous, running to 301 pages, with 19 clauses and 11 Schedules, and should really be two separate Bills: one dealing with the proposal to have a referendum on the alternative vote system; and the second dealing with the proposals to gerrymander/equalise the size of parliamentary constituencies.

The Bill was (as is usual) not considered fully in the Commons and so the Lords has been considering it (as is also usual) on a line-by-line basis. The House has just completed amendment 58ZZZB which relates to Clause 10 (on page 8 of the Bill) – the first clause that deals with the second part of the Bill. On Monday, which was the seventh day of Committee, the “silence of the lambs” (as I put it) was noticeable – in the debate on one amendment eighteen Labour Peers and two cross-bench peers spoke, but only one backbencher from the Conservative Coalition was prepared to defend the Bill.

Given the importance of the Bill, its complexity and the need for proper scrutiny, all this is taking time.

And the clock is ticking – the Electoral Commission have said that unless the Bill receives Royal Assent by the middle of next month it will not be possible to hold the AV referendum on 5th May as the Conservative Coalition wants.

One option is, of course, to split the Bill into two parts. Indeed, Labour peers suggested this when the Bill was first considered in the House of Lords, but the Government didn’t want to know.

The other is to soldier on through the night for each of the Committee days scheduled, but with sixty groups of amendments still to be considered, even that may not allow sufficient time to deal with the Bill adequately.

So rumours are now swirling around that Thomas Galloway Dunlop du Roy de Blicquy Galbraith, Lord Strathclyde, the Leader of the House, has started threatening that he will table a ‘guillotine’ motion to cut off consideration of the Bill.

This would be unprecedented. It has NEVER been done before.

And as the whole point of the House of Lords is that it takes the time to scrutinise legislation properly, such a motion would be a constitutional outrage.

So not content with appointing dozens of new Conservative and LibDem placepeople to pack the Government benches, the Conservative Coalition is now contemplating playing fast and loose with the Constitution itself, so as to get through their Bill to change the composition of the House of Commons.

Is Lord Strathclyde trying to win the Robert Mugabe Award for Constitutional Innovation?

This week, it will be worth following events in the House of Lords closely!

The week ahead

The House of Representatives returns on Tuesday. A Continuing Resolution will be the main business. The Weekly Leader is available here.

The House of Commons will debate firearms control on Monday; There will be a pre-recess backbench debate on Tuesday, as well as Westminster Hall debates and three select committee meetings. In the Lords six new Peers will be introduced on Monday and Tuesday - all coalition peers. It will be a busy schedules as a number of pieces of legislation are finally dealt with, while controversial Parliamentary Voting System and Constituencies Bill and Public Bodies Bill  continue their progress.

Gerrymandering

The problem of Gerrymandering has beset US politics for generations. Sophisticated computer programmes make it easier to accomplish. In the UK we prided ourselves on a non-partisan system for "re-districting", which involved work by the Boundary Commissions (from which active - and recently active - politicians were barred) which produced proposals which went out for public consultation - and allowed Local Inquiries held by an independent semi-judicial Inspector. The primary objective was to produce constituencies (the 'British' word for 'districts') which were geographically coherent and which kept communities together. Those things we were proudest of are being done away with by the current government.

So Gerrymandering is going to be a big issue in both the USA and UK.

A documentary has been produced in the USA which highlights the issues - it is currently being shown in some cinemas. There is a website which includes a trailer for the film - and background information. It is available here.

Summary of Report by Political & Constitutional Reform Committee

The Parliamentary Voting Systems and Constituencies Bill seeks fundamentally to change the political establishment in the UK. We regret that it is being pushed through Parliament in a manner that limits both legislative and external scrutiny of its impact, and may consequently undermine the Government's intention to restore the public's faith in Parliament. Given constraints of the legislative timetable we have conducted this inquiry with the aim of producing a report which we hope will assist the House at the Committee stage of the Bill.

For primarily political reasons, the Bill links two sets of provisions that could have been considered separately. The Bill does not include proposals on reforming the House of Lords which would have allowed the composition of Parliament to be developed in the round. While we welcome the decision to hold a referendum on the introduction of an alternative vote system rather than introducing such a fundamental change solely through legislation, we note that there is no clarity as to when this or future administrations will hold referendums on issues of constitutional importance.

The current timetable for the referendum is tight. If either House substantially amends the rules for holding the referendum the Government may have to reconsider the timing of the vote or run the risk of serious administrative difficulties which could undermine the outcome. This is a particular concern in the light of the facts that: the Bill will need amendment to allow the referendum and other elections to be held using the same facilities; the Bill is unclear whether funding restrictions apply to the media; and the Electoral Commission has expressed concern over both the wording of the referendum question and the design of the ballot papers.

While we agree there may be a case for reducing the number of MPs from 650 to 600, the Government has singularly failed to make it. We recommend the Government assesses and, if possible, mitigate through amendments, the likely impact of the wholesale redrawing of constituency boundaries on grassroots politics.

Members of the Committee have tabled an amendment which would ensure all four Boundary Commissions can utilise the full 5% variation in electoral quota according to clear and consistent rules. There is no alternative to using the December 2010 electoral roll to determine constituencies, whether the flaws in the register undermine the equalisation requirement is a matter for the House.

The proposed exceptions to the electoral quota requirement make sense but the House may wish to consider further exceptions where there is evidence that voters are prepared to be under-represented to preserve strong local ties. Public consultation on the boundary changes will be vital to the perceived legitimacy of the Boundary Commissions' decisions and we have tabled amendments we believe will enhance that process. We also recommend the Secretary of State's power to alter the recommendations of the independent Boundary Commissions be limited to the correction of errors, and that the "payroll vote" in the House of Commons be reduced in line with any reduction in the overall number of MPs.

The Full Report is available Here

Angry MPs

Rosie Winterton made the following remarks in the Commons yesterday -

With regard to the allocation of time for the Parliamentary Voting System and Constituencies Bill, can the Leader of the House tell us whether he thinks there will be adequate time to put right the abject failure of the Deputy Prime Minister to explain why public inquiries into parliamentary constituency changes are to be abolished? It was fairly clear on Monday that the Deputy Prime Minister has employed the services of the Tory grandee, "Sir Gerry Mander", as his special adviser, but surely even he must realise that removing the right of local people to have a say in constituency boundaries is not only wrong in principle, but will also lead to endless expensive judicial reviews in the courts.


We now have clear advice from the Clerk of the House that the Fixed-term Parliaments Bill is similarly ill thought-out and will also end up being challenged in the courts. Those two Bills are prime examples of the betrayal of the promise of the Conservative-Liberal Democrat Government to have pre-legislative scrutiny wherever possible. Worse than that, they are in the first case anti-democratic and in the second case unworkable. The only thing the Leader of the House should do is withdraw those Bills, go back to the drawing board and come back with legislation that respects our democracy and respects Parliament. I urge him to do so.

On another matter - Tom Watson spoke of  "the tawdry secret" see the clip posted on Washminster yesterday.

Are MPs getting angrier? I it synthetic or are there real issues at stake? Now that the tea party organisers have crossed the Atlantic to advise on tactics, and public sector unions are gearing up to fight the coming cuts - are we about to set politics becoming angrier in Britain?

Your comments please - either via this page or to info@washminster.com

Second Reading

One way of getting a better understanding of the legislative process is to analyse the speeches during the different stages of a bill's progress.

On September 6th the House of Commons gave a Second Reading to the Parliamentary Voting System and Constituencies Bill.  You can follow the debate in Hansard here - the column numbers appear in the text.

The Deputy Prime Minister begins - "I beg to move, That the Bill be now read a Second time".

As is the usual practice in the 2nd Reading speech for the Minister - he begins by setting out the problems that the Bill is a response to.

He says (col 35) "There are two major issues that we have to face. The first [1] is the big difference between the sizes of many parliamentary constituencies, which has the effect of making some people's votes count more than others, depending on where they live. The second [2] is the widespread concern about first past the post as the means by which MPs are elected. " He expands upon these two major problems by outlining subsidiary issues -
(1) the degree of variance in sizes of constitutencies
(2) the fact that the information used in deciding the makeup of constituencies is long out of date, even before the boundary revisions come into force
(3) there are too mant constituencies
(4) the process by which boundaries are drawn is cumbersome. (Cols 36-37) 
(5) the First Past the Post electoral system no longer enjoys the confidence of many voters and this is undermining the legitimacy of elections (Col 40)

The speech deals with how the proposed legislation addresses these problems.
[1] is dealt with in col 37 - "The Bill seeks to address each of these problems....."
[2] is dealt with from col 40 "I now turn to the referendum on the alternative vote...."

Towards the end of the speech he gives a brief description of the substantive clauses (Col 43) "I would now like to outline briefly the effect of the substantive clauses. I know that many Members want to speak in the debate so I do not intend to describe the Bill clause by clause; there will be plenty of opportunity for that in Committee. For the moment I hope it will suffice to say that there are three main parts to the Bill: provisions for a referendum to be held, in clauses 1 to 5 and schedules 1 to 5; provisions for implementation of the alternative vote system in the event of a yes vote in the referendum, in clause 7 and schedule 6; and provisions to reform the setting of parliamentary boundaries, in clauses 8 to 11.

This basic three part structure can be seen in other 2nd Reading speeches by the person who is responsible for the Bill.

The Opposition spokesperson then moves an amendment. Note how the amendment process works

[1] The original motion is "That the Bill be now read a Second time"

[2] The amendment reads "to leave out from "That" to the end of the Question and add:


"this House, whilst affirming its belief that there should be a referendum on moving to the Alternative Vote system for elections to the House of Commons, declines to give a Second Reading to the Parliamentary Voting System and Constituencies Bill because it combines that objective with entirely unrelated provisions designed to gerrymander constituencies by imposing a top-down, hasty and undemocratic review of boundaries, the effect of which would be to exclude millions of eligible but unregistered voters from the calculation of the electoral average and to deprive local communities of their long-established right to trigger open and transparent public inquiries into the recommendations of a Boundary Commission, thereby destroying a bi-partisan system of drawing boundaries which has been the envy of countries across the world; and is strongly of the opinion that the publication of such a Bill should have been preceded by a full process of pre-legislative scrutiny of a draft Bill."

If successful (and Governments VERY rarely lose on 2nd reading) the new motion would be

[3] "This House, whilst affirming its belief that there should be a referendum on moving to the Alternative Vote system for elections to the House of Commons, declines to give a Second Reading to the Parliamentary Voting System and Constituencies Bill because it combines that objective with entirely unrelated provisions designed to gerrymander constituencies by imposing a top-down, hasty and undemocratic review of boundaries, the effect of which would be to exclude millions of eligible but unregistered voters from the calculation of the electoral average and to deprive local communities of their long-established right to trigger open and transparent public inquiries into the recommendations of a Boundary Commission, thereby destroying a bi-partisan system of drawing boundaries which has been the envy of countries across the world; and is strongly of the opinion that the publication of such a Bill should have been preceded by a full process of pre-legislative scrutiny of a draft Bill"

The debate continued - some speeches are reasoned statements of why the amendment is supported, or why the original motion hasm the support of the person speaking. Some speeches and interventions highlight specific concerns that attention is drawn to.

At the 'moment of interruption' the question was put "That the amendment be made". This was lost by 347-254 votes. Then the unamended motion "that the Bill be now read a Second time" was put. This was carried by 328 to 269 votes. The change in the voting numbers reflects that fact that some members of the Government parties either voted against the motion or abstained. There were further votes on the Programme Motion (which limits the time for further stages) and the Money Resolution.