The Parliamentary Constituencies Bill: how to ensure a level playing field

alan.jfif (1)professor_hazell_2000x2500_1.jpgLegislation now before parliament will reform how parliamentary constituencies are drawn up. Most controversial is a proposal that the recommendations of the independent boundary commissions should be implemented automatically. Alan Renwick and Robert Hazell argue that the principle of automatic implementation is right, but it should be combined with stronger safeguards on the commissions’ independence. 

The government’s Parliamentary Constituencies Bill was debated in the House of Commons for the first time earlier this week. The bill, if passed, will keep the number of MPs at 650, cancelling a cut to 600 that was legislated for in 2011 but has not yet been implemented. It will also alter the procedures for drawing up Westminster constituency boundaries, in four main ways. First, it will reduce the frequency with which boundaries are reviewed, from five- to eight-year intervals. Second, it will slightly shorten the duration of the next review (but only the next one), from 34 to 31 months, to ensure its conclusions can be implemented in good time for a 2024 election. Third, it will adjust the sequence of the review process, so that public hearings on proposed boundaries take place after an initial round of written submissions. Finally, and most importantly, it will make the implementation of new boundaries automatic: parliament will lose its current power to block the proposed changes.

Cancelling the cut in the number of MPs is no longer controversial. That reduction was introduced in 2011 in the wake of the MPs’ expenses scandal, when public scepticism about the value of MPs’ work was at a peak. It was designed to show that ministers understood people’s anger about perceived waste at the heart of politics. Since then, however, parliament has done much to reassert its value. MPs have become more independent-minded in holding government to account. Following reforms implemented in 2010 – some of which were strongly based in earlier Constitution Unit research – select committees have risen greatly in prominence, and are now widely seen as doing much important work. Furthermore, many constituents were discomfited when they saw that cutting the number of MPs would reduce their own local representation at Westminster. The cross-party support that exists for retaining 650 MPs is therefore welcome.

Some of the changes to review procedures have, however, proved more contentious. In particular, opposition parties have argued against the introduction of automatic review implementation. Speaking in the Commons on Tuesday, both the Shadow Minister for Voter Engagement, Cat Smith, and SNP Spokesperson David Linden called it ‘a power grab’ by the executive over the legislature. Labour’s Stephen Kinnock described it as ‘nothing short of a constitutional outrage’.

Such claims, if accurate, would be very troubling. That opposition politicians are suspicious is unsurprising, for the Johnson government has disregarded parliament’s vital democratic role far too often. As one of us wrote last August of the attempt to prorogue parliament, ministers were ‘not only undermining our democratic process by silencing parliament, but also abusing the basic character of the uncodified constitution’. This week’s refusal to allow MPs who are unable to travel safely to Westminster to continue to participate fully in parliamentary proceedings remotely showed shocking disregard for the vital role that all MPs play.

Yet we should be very careful in the present case. The key requisite for any boundary review process is that it should be conducted independently of political influence in accordance with rules protecting strict impartiality. The decisions that are made through that process clearly affect the personal and partisan interests of MPs and party leaders very deeply. So, while it is wholly proper for politicians and political parties to make submissions to the review, they must not be able to influence the final decisions. 

The UK’s process is, in most respects, among the best in the world in this regard. Reviews of constituencies are conducted not by politicians and not by government, but by independent boundary commissions – one each for England, Scotland, Wales, and Northern Ireland. Each commission is formally chaired by the Speaker of the House of Commons but in practice led by a senior judge. Other members are appointed on merit through open competition – see a detailed description of one recent process here. Every time a review is held, each commission drafts initial proposals, then consults on them; then it drafts revised proposals and consults again; only after that does it produce final recommendations. This process stands in stark contrast to those found in some other democracies – most notably, the United States – where partisan ‘gerrymandering’ of boundaries can lead to shockingly unfair results (as discussed on our blog by Columbia’s Professor Richard Briffault).

Yet the independence of the UK’s process is violated at the final step, when parliament’s approval is required to implement the boundary commissions’ proposals. MPs cannot modify those proposals, only ratify or block them. Nevertheless, allowing politicians any role at this crucial stage runs counter to basic democratic principle. It has allowed political interference to occur three times. In 1969, the Labour government, fearing that the proposed new boundaries would cost it seats, engineered their defeat in the Commons. Then the first review conducted after the 2011 rule changes was terminated early and the second was never put to a parliamentary vote – in both cases, in large part, because of MPs’ fears about losing their seats. As a result of these interventions, the current boundaries are seriously out of date: in England they are based on electoral registers from February 2000. Even when some special cases are excluded, the smallest seats are little more than half the size of the largest.

Thus, the removal of parliament’s power to block is an important step forward that democrats should strongly welcome. Indeed, many of the countries whose political institutions are genealogically closest to our own – including Australia, New Zealand, and Canada – have had automatic implementation of boundary reviews for decades. In none of them does this cause remote controversy.

Still, automatic implementation is clearly appropriate only if the review process itself is genuinely independent of any improper interference. If that condition is not met – if, for example, government ministers can unduly influence the appointment of boundary commission members or the conduct of reviews – then the independence requirement is violated again. That was indeed a problem in the past in New Zealand: automatic implementation was introduced in 1945, but the government of the day controlled a majority of the members of the boundary review body. That was changed in 1956 to ensure neutrality. As two of New Zealand’s leading elections experts, Alan McRobie and Nigel Roberts, later wrote, the 1956 reform ‘was applauded as a major breakthrough in the search for impartiality in electoral redistribution’.

The independence of boundary commissions has only very rarely been questioned in the UK to date. Yet there are grounds to worry that this could change. Most of the active boundary commission members are appointed by government ministers. Though in practice the decisions have always been made apolitically, on advice from officials, and the whole process is overseen by the Commissioner for Public Appointments, safeguards against a government that wanted to interfere are relatively weak. The motivation to intervene might grow once the possibility of blocking the outcome of a review was removed. Furthermore, recent experiences of other comparable appointments give cause for concern: for example, the appointment of former Cabinet minister Baroness Stowell to be chair of the Charity Commission, against the advice of the Commons DCMS Committee.

Thus, MPs with concerns about the removal of parliament’s blocking power should not oppose the principle of automatic implementation itself: that principle is vital for proper democratic process. Rather, they should concentrate on ensuring that the independence of the boundary commissions is beyond reasonable doubt. One way of achieving this would be to regulate more tightly the process through which ministers appoint boundary commission members. For example, requirements for political neutrality and legal experience could be written into law – it is anomalous that legislation bars members of, or donors to, political parties from appointment to the Local Government Boundary Commission for England but not to the commissions that draw up Westminster boundaries. It would also be possible to require the deputy chair of each commission (a senior judge) to sit on the appointments panel for other members, and/or to invite the relevant select committee to conduct a pre-appointment scrutiny hearing, to check that proposed commissioners are suitably qualified and independent-minded.

A bolder approach would be to remove the power of appointment from the executive and confer it upon parliament. This would follow the model of the Electoral Commission, whose members are appointed through a process overseen not by ministers, but by a cross-party Speaker’s Committee in the House of Commons. The same model was adopted in 2009 for the appointment of the Chair of the Local Government Boundary Commission for England. This would seem all the more appropriate given that the Westminster boundary commissions are formally chaired by the Speaker. On the other hand, there may be a danger that this process could politicise appointments unduly – a recent case when a candidate selected by the Speaker’s Committee following a process of fair and open competition was rejected by the House of Commons raises concerns.

The merits of these different approaches should be weighed carefully by policy-makers on all sides during detailed scrutiny of the bill in the coming weeks. But the governing principle for reform of the system should be clear: the role of politicians is to establish a process that is impartial and open; having done so, they should not interfere in its application.

We are very grateful to Giorgia Carofiglio and Jessamy Taylor for their excellent assistance in researching parts of this post.

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About the authors

Dr Alan Renwick is Deputy Director of the Constitution Unit and the co-author of Doing Democracy Better: How Can Information and Discourse in Election and Referendum Campaigns in the UK Be Improved?

Professor Robert Hazell was the first Director of the Constitution Unit, and closely involved with helping the Cabinet Office draft the Cabinet Manual. He is the co-editor of The Role of Monarchy in Modern Democracy, which will be published in July.