DPRR/2010-11/26
PARLIAMENTARY VOTING SYSTEM AND CONSTITUENCIES BILL
Memorandum concerning the Delegated Powers in the Bill for the Delegated
Powers and Regulatory Reform Committee
A.
INTRODUCTION
1. This memorandum has been prepared for the Delegated Powers and Regulatory
Reform Committee (“the DPRRC”) to assist with its scrutiny of the Parliamentary
Voting System and Constituencies Bill (“the Bill”).
2. This memorandum identifies the provisions of the Bill that confer powers to make
delegated legislation. It explains in each case why the power has been taken and
explains the nature of, and the reason for, the procedure selected.
B.
PURPOSE AND EFFECT OF THE BILL
3. The Coalition Programme for Government made a commitment to bring forward
legislation to provide for a referendum on whether the Alternative Vote (“AV”)
electoral system should replace the First Past the Post electoral system for electing
members of the House of Commons, and for the creation of fewer and more equal
sized constituencies. This Bill delivers these commitments and provides for other
matters consequential to them.
4. In outline, the Bill provides that a referendum will take place on 5 May 2011,
offering the public a choice between the existing First Past the Post system and the
Alternative Vote for electing MPs, and sets out the arrangements for running the
referendum. The Bill also modifies the existing parliamentary elections rules in
primary legislation so that, in the event of a ‘yes’ vote in the referendum, future
elections may take place on the basis of the AV electoral system without further
primary legislation being required. The aim here is to ensure that if there is a yes
the AV system could be implemented without undue further delay. Any necessary
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amendments to secondary legislation will be taken forward separately, with those
changes themselves being made in secondary legislation if the outcome of the
referendum is in favour of moving to the AV electoral system.
5. The Bill also makes provision for the creation of fewer and more equally-sized
constituencies. It provides that there will be 600 MPs, a reduction from the
existing 650 members.
The Bill will require the four Parliamentary Boundary
Commissions (in England, Scotland, Wales and Northern Ireland) to recommend
new constituencies within 5% of the ‘electoral quota’ of registered electors,
subject to two exceptions: Orkney and Shetland and Na h-Eileanan an Iar, which
are not covered by this rule because of their unique locations; and an overall limit
on the maximum geographical size of a constituency set at 13,000km2.
A
modification of the 5% rule may be applied in Northern Ireland, where the smaller
electorate may result in a larger discrepancy between the average size of a
constituency and the UK electoral quota than in the other three parts of the UK.
C.
DELEGATED POWERS
Clause 9(4): the alternative vote system: amendments
Power conferred on: Lord President of the Council or the Secretary of
State
Power exercised by: order made by statutory instrument
Parliamentary procedure: affirmative
10. Clause 9 sets out the key amendments required to primary legislation in order to
conduct a parliamentary election under the alternative vote system (‘AV’). It
inserts new rules 37A and 45A into the Parliamentary Elections Rules contained in
Schedule 1 to the Representation of the People Act 1983; these set out how votes
would be given and counted, and how the winning candidate would be determined.
Clause 9 also introduces Schedule 10 which makes further amendments to primary
legislation, notably to the 1983 Act, in connection with the alternative vote system.
Clause 9(4) empowers the Lord President of the Council or the Secretary of State
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by order to make amendments to any primary or secondary legislation that are
consequential on amendments made by clause 9 or Schedule 10.
11. In respect of primary legislation, given the timescales to which this legislation is
required to pass through Parliament, the possibility cannot be entirely ruled out that
further, minor, consequential amendments to primary legislation may be needed in
order for the AV voting system to work. Providing for a limited power which
might enable such changes to be made will enable concerns raised by the Electoral
Commission and others, such as electoral administrators, to be taken into account
if raised only after the Parliamentary process has finished. In considering this
approach the DPRRC is respectfully requested to note that the breadth of the power
is limited only to amendments that are consequential on the changes made by
clause 9 and Schedule 10. Supplementary provision, for example, would not be
capable of being included in such an Order.
12. In respect of secondary legislation, it is envisaged that, in order to introduce the
alternative vote system, amendments will be required to provisions in existing
secondary legislation which touch on the conduct of a UK Parliamentary election.
For example, changes will need to be made to certain forms that are prescribed for
use at UK Parliamentary elections including the poll card (which is issued to
electors prior to polling day to provide them with information about how to
exercise their vote at the election) and the postal voting statement (which postal
voters must complete and return with their postal vote and which again includes
information for postal voters about casting their vote). The forms are set out
principally in the Representation of the People (England and Wales) Regulations
2001 (S.I. 2001/371) and equivalent legislation for Scotland and Northern Ireland.
Other changes required include changes to the secondary legislation governing the
conduct of UK Parliamentary elections when they take place on the same day as
other elections (i.e. “combined” elections). This will require amendments to, for
example, the Representation of the People (Combination of Polls) (England and
Wales) Regulations 2004 (S.I. 2004/294) which set out modifications to the rules
for UK Parliamentary election when they are combined with certain other elections
in England and Wales. Regulations dealing with combination of UK parliamentary
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elections with other elections and which deal with arrangements in Scotland and
Northern Ireland will also need to be amended.
13. In this context, it is considered that the order-making power in clause 9(4) is
necessary as it is conceivable that existing enabling powers to amend secondary
legislation will not be sufficiently wide to make the necessary consequential
changes in order to implement AV, given that those powers will have been enacted
on the basis of a First Past the Post system. The changes to secondary legislation
may be extensive and in the time available it has not been possible to develop in
fine detail the precise nature of every change that might be necessary in order to
assess whether existing powers are adequate to enable them to be made on a
prospective basis. Again, the DPPRC is respectfully requested to note that, in
assessing the suitability of this power, it is considered significant that it may only
be used to make changes that are truly consequential to the principal changes made
in clause 9 and Schedule 10.
14. Given that the power relates to the rules for the conduct of elections and allows
for the amendment of primary legislation, it is considered that the affirmative
procedure is required to provide the appropriate level of Parliamentary scrutiny. In
addition to that safeguard, the attention of the DPPRC is respectfully drawn to subparagraph (8), which provides an additional control, whereby before making an
order under this power the Lord President of the Council or the Secretary of State
must consult the Electoral Commission.
Clause 10(6) and (8): Reports of the Boundary Commission
Power conferred on: Her Majesty the Queen
Power exercisable by: Order in Council
Parliamentary procedure: affirmative
15. Clause 10(6) and (8) modify an existing power to make delegated legislation but
do not confer a new power. Under section 3(5) of the Parliamentary Constituencies
Act 1986 the Secretary of State is required to lay before Parliament Boundary
Commissions’ reports recommending how areas should be divided into
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constituencies, together with a draft Order in Council giving effect to the
recommendations (with or without modifications).
16. Under the Bill, although each Boundary Commission will continue to produce
their own reports, there will be a single UK-wide Order in Council. Clause 10(6)
accordingly amends section 3(5) to require the Secretary of State to lay the draft
Order once all four reports have been received. Clause 10(6) also provides that the
Order in Council may modify the recommendations of a Boundary Commission
only if that Commission has requested the modifications and submitted to the
Secretary of State a statement of reasons for the modifications. The procedure for
Orders in Council is set out in section 4 of the 1986 Act. Clause 10(8) amends
section 4(2) so that the statement of reasons to be laid with a draft Order in Council
which modifies a Boundary Commission’s recommendations is to be a statement
of the reasons for the modifications provided by the Boundary Commission which
requested them. Clause 10(9) provides that the ministerial functions in the
procedure continue to be exercisable concurrently by the Secretary of State and the
Lord President of the Council, as is currently the case pursuant to the Lord
President of the Council Order 2010 (S.I. 2010/1837). No change is made to the
requirement that Orders in Council are subject to the affirmative resolution
procedure.
Paragraph 20(1)(b) of Schedule 1 : Payments to counting officers
Powers conferred on: Lord President of the Council or the Secretary of State
Powers exercisable by: order made by statutory instrument with the consent of
Treasury
Parliamentary procedure: no procedure
17. Paragraph 20(1)(b) empowers the Lord President of the Council or the Secretary
of State to make an order (“the charges order”) specifying the “overall maximum
recoverable amount”. This is the maximum sum which a counting officer or
Regional Counting Officer is entitled to recover in respect of services rendered, or
expenses incurred, for or in connection with the efficient and effective conduct of
the referendum. The clause gives the Electoral Commission a discretion to pay a
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sum lower or higher than this amount in specified circumstances. The order may
also specify, or make provision for determining, the maximum amount which a
counting officer or Regional Counting Officer may recover for services or
expenses of a specified description (sub-paragraph (4)).
18. An order under this paragraph may make different provision for different cases
(sub-paragraph (11)). This is necessary so that, for example, the charges order can
(if considered appropriate) specify different amounts for different areas or to
distinguish between the maximum amounts available for counting officers and
Regional Counting Officers.
19. These provisions are modelled on section 29 of the Representation of the People
Act 1983 (“the RPA”), which provides the Secretary of State with an equivalent
power in the context of parliamentary elections. Consistent with the power in
section 29(3) of the RPA and as provided for generally by clause 14 of the Bill, the
power is exercisable by statutory instrument. In addition, the power may only be
exercised with the consent of the Treasury (sub-paragraph (1)(b)).
This is
appropriate as the order will set the framework for reimbursing costs incurred for
the running of the referendum, which is to be paid out of the Consolidated Fund
(sub-paragraph (12)).
20. Since the order is essentially administrative, specifying what expenses are
allowable and the maximum amounts payable, no parliamentary procedure is
attached to it. This is also consistent with the position in respect of orders made
under section 29(3) of the RPA in relation to parliamentary elections.
Paragraph 20(10) of Schedule 1: Payments to counting officers: accounts
Powers conferred on: Electoral Commission
Powers exercisable by: regulations in accordance with the requirements in
paragraphs 21 to 23 of Schedule 1 to the Political Parties, Elections and
Referendums Act 2000
Parliamentary procedure: no procedure
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21. Paragraph 20(7) of Schedule 1 provides that the Electoral Commission must pay
the amount of a counting officer’s or Regional Counting Officer’s recoverable
charges upon submission of an account by such officers to the Electoral
Commission. The Commission is given a power in sub-paragraph (10) to make
regulations about the time, manner and form of such accounts. Sub-paragraph (11)
provides that the regulations may make different provision for different cases.
22. The power in sub-paragraph (10) is modelled on section 29(8) of the RPA, under
which the Secretary of State is empowered to make regulations regarding the
submission of returning officers’ accounts in the context of parliamentary
elections.
Paragraph 6 of Schedule 21 to the Political Parties, Elections and
Referendums Act 2000 amends this provision to transfer the regulation-making
power to the Electoral Commission, although those amendments have not yet been
commenced.
The approach in sub-paragraph (10) is the same as in those
amendments, save that the Electoral Commission is empowered, rather then the
Lord President of the Council or the Secretary of State. It is thought appropriate to
provide for the Electoral Commission to be responsible for prescribing the form of
counting officers’ or Regional Counting Officers’ accounts for the referendum,
despite the Commission not yet having responsibility for returning officers’
accounts in relation to Parliamentary elections. That is because the Commission
will have full operational responsibility for the way the referendum is run.
23. Again, as the regulations will be administrative in nature, no parliamentary
procedure is attached.
The point made above at paragraph 20 as regards
consistency with the equivalent power in the RPA is equally applicable here.
Further, this approach follows the general position in relation to the power of the
Electoral Commission to make regulations, as set out in paragraphs 21 to 23 of
Schedule 1 to the Political Parties and Elections Act 2000.
Cabinet Office
November 2010
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