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Parliamentary Voting System and Constituencies Bill

Amendment 22D stands in my name and those of the noble Lords, Lord Williamson of Horton and Lord Armstrong of Ilminster, and the noble Baroness, Lady O’Neill of Bengarve. The purpose of the amendment is to recognise and address the competing strength of the arguments advanced from each of the Front Benches on a matter of considerable significance: namely, the extent to which the Boundary Commission should have flexibility to depart from the electoral quota for each constituency laid down in the Bill. The Government contend—this is a very forceful argument—that equality in this area is of enormous significance. They have already recognised a 5 per cent margin either way. One must be very careful about giving any further flexibility lest one undermines the important goal of equality. Those arguments are very forceful, but equally forceful are the arguments advanced by noble Lords on the opposition Front Bench. They point out that equality is not the only goal: geographical considerations, local ties and community cohesion are also important in this sensitive area and there may be constituencies where the Boundary Commission would wish to depart from the electoral norm further than the 5 per cent margin. The amendment recognises the force of each of those arguments and it suggests that the solution is to confer on the Boundary Commission in its discretion a very narrow—I emphasise very narrow—additional discretion to allow for a departure from the electoral norm of up to another 2.5 per cent either way. That would apply only if the Boundary Commission believes, in its judgment, that two criteria are satisfied. The first criterion is that a further departure must be necessary—not reasonable nor desirable, but necessary. The second criterion is that it must be necessary in order to address special geographical considerations or local ties—already the criteria in Rule 5—of an exceptionally compelling nature. On a matter as important as this, it is appropriate to include in the Bill that limited additional flexibility outside the 5 per cent norm, but I accept that it is absolutely vital that any such flexibility is defined in a way that ensures that the exception does not swallow the rule. Amendment 22D has been drafted with the assistance and encouragement of noble Lords from all parts of the House. It has been drafted in a manner that I am confident achieves this narrow objective. I thank the noble Lord the Leader of the House, the noble and learned Lord, Lord Wallace of Tankerness, Mr Mark Harper, the Minister in the other place and the Bill team for the time and trouble that they have taken in discussing with me very patiently and courteously the Government’s concerns about this issue. I really have tried my best to accommodate those understandable concerns in this amendment in a constructive manner. There remain, I understand, four main concerns that Ministers still have. I will briefly identify and seek to address them. The first concern is that the criteria, particularly the term ““exceptional”” are subjective. The Boundary Commission will, Ministers fear, be under pressure from people in many constituencies to recognise that their cases satisfy these criteria. The answer is that the criteria are very narrowly defined and the Boundary Commission will, I am sure, respect the clear limits in both the language and purpose of the amendment. I refer noble Lords to a 1998 judgment by the late and much lamented Lord Bingham of Cornhill, where he explained in another statutory context what ““exceptional”” means. He was, incidentally, rejecting arguments from counsel, Mr Clegg QC—no relation. Lord Bingham said that exceptional means something, "““which is out of the ordinary course, or unusual, or special, or uncommon””." There are many contexts in which Parliament has used the term ““exceptional””, and public bodies are used to exercising narrow discretions accordingly. The second concern of the Government is that that discretion will cause practical problems. It will involve large amounts of work for the Boundary Commission and cause potential delays in the whole process of boundary review. I do not share those concerns because the Boundary Commission will in any event be looking at precisely the special geographical considerations and local ties to see whether, in its judgment, it is appropriate to vary the electoral size of a particular constituency by up to 5 per cent from the norm. That is already its job. The amendment will simply mean that, if the Boundary Commission concludes that, in its judgment, there are special geographical considerations and local ties that make it appropriate to go up to the 5 per cent variation, it may if it wishes ask a further simple question. Is this a case of necessity and of such strong geographical considerations and local ties that it would be appropriate to exercise exceptional discretion and use the additional 2.5 per cent margin? I suggest to noble Lords that to allow the Boundary Commission to ask and answer that question will not cause practical problems. The third concern expressed by the Government is about the knock-on effect. They say that this discretion will inevitably have a knock-on effect on neighbouring constituencies if it is exercised. The answer again is that Clause 11 already allows for variations of up to 5 per cent either way. To the extent that the Boundary Commission exercises that power, there will already be a knock-on effect on neighbouring constituencies. There is nothing different in principle if you expand the band of discretion to 7.5 per cent to be exercised only in these exceptional circumstances. Of course, the Boundary Commission will not exercise discretion to allow a variation of up to 7.5 per cent without taking into account any potential knock-on effect. The fourth and final concern that the Government have expressed to me is about judicial review. Of course, the exercise of this exceptional power, if we give it to the Boundary Commission, will be, like all other public powers, subject to control by the courts, and rightly so. But the Government’s concern about judicial review in this context is wholly unrealistic. Any judge faced with a judicial review application in this context will adopt the approach that the Boundary Commission has been given a very narrow discretion. It is for the Boundary Commission and not for the courts to decide whether the criteria of necessity and exceptionally compelling circumstances are satisfied and it is not the role of the courts to substitute their discretion for that of the Boundary Commission. The Government then say, ““We’re not so much concerned about judicial reviews that will or may succeed; we’re concerned about hopeless judicial reviews which will delay the process of boundary review””. The answer to that is that judicial review applicants are required to present any claim speedily where the context so requires, as this undoubtedly does. No judicial review claim can proceed to a substantive hearing without the permission of the court, and the court will not give permission unless the claim is proper and has a realistic prospect of success. The Government’s position is simply not tenable given the narrow nature of the discretion that would be conferred. In public law, the courts are accustomed to resolving speedily any issues which require expedition. The worry about judicial review can provide no answer to this amendment. I very much hope that, even at this late stage, the Government may feel able to accept this compromise amendment in the spirit in which it is put forward. It is a compromise amendment that recognises that we are dealing with an important and sensitive area of national life. It is an area where equality is a most important value, but it is an area also where a little extra flexibility is needed to mitigate the rigour of the formula in those cases, if any, where the Boundary Commission is satisfied that the criteria of necessity and exceptional circumstances are met. I very respectfully suggest to the Minister who is to answer this debate that wisdom and maturity on the part of the Government require recognition of the importance of consensus in this sensitive political context. This amendment recognises the strength of the competing arguments on both sides of this debate. I commend it to your Lordships as being reasonable and workable. I beg to move.