Monitor 53 | Constitution Unit Newsletter | February 2013 | ISSN 1465–4377 | Page 4
The Electoral Commission has launched an inquiry into the elections,
and is due to report in January. This is only likely to compound the
negative assessment; the commission has already said that it disagreed
with several decisions taken by the government on the poll, notably not
providing a free mail shot to candidates and the highly unusual decision
for the Home Office to run its own public awareness campaign.
The elected commissioners look likely to experience difficult times ahead,
too. They only have until 31 January to submit their financial plan for the
year, as well as to lay out strategies for the Chief Constable. This very
short time-frame stems from the government’s decision to hold the poll in
November, rather than in the spring as originally intended.
Electoral Registration and Administration Bill and the
boundary review
The Electoral Registration and Administration Bill, which provides for
a new system of individual rather than household voter registration,
was home to a dramatic amendment in the Lords in January. Back
in October, an opposition amendment was tabled at Committee
stage which sought to change the publication date of the Boundary
Commission’s report on new constituencies from October 2013 to
October 2018. The government suspended proceedings, explaining that
there were concerns that the amendment was inadmissible on the basis
of not being relevant to the bill. The new registration system is due to be
introduced in 2014, in time for the 2015 general election.
When the Committee returned in January, the clerks ruled that the
amendment was inadmissible. Labour’s Lord Hart of Chilton moved
it nonetheless, paving the way for the first formal split coalition vote
in either House: the Conservatives whipped to vote against and the
Lib Dems for (see Lords changes, p.3). Heated exchanges took place
between coalition peers, with Clegg accused by Conservatives of
‘double-crossing’ and ‘gerrymandering the constitution’.
The amendment played to the ongoing tensions around the boundary
changes, particularly over how the new electoral register is likely
to influence them. There is widespread concern that if the changes
go ahead as planned (due to be implemented in time for the 2015
election) they will be based upon artificially low numbers of voters as
a result of the drop-off effect under individual registration. For Labour,
who fear they will lose out significantly from the disenfranchisement
of lower socio-economic groups, the amendment can be seen as an
attempt to stave off the risk of unrepresentative registers making for
unrepresentative constituencies. For the Lib Dems, supporting the
delaying amendment was a means of following through on Clegg’s
announcement in September that his party would not back the
proposed boundary change timetable as a result of Conservative
failure to deliver on Lords reform.
Cameron will attempt to reverse the decision when the Bill returns to
the Commons later in January, but success will rely on support from
the nationalist parties.
Votes for prisoners and the new model Lord Chancellor
In November the Justice Secretary and Lord Chancellor, Chris Grayling,
introduced a draft bill on the vexed topic of votes for prisoners. It offers
Parliament three options: first, a ban on voting for prisoners sentenced to
four years’ imprisonment or more; second, a ban on those sentenced to
more than six months; third, re-enactment of the existing blanket ban. Mr
Grayling introduced the draft bill just 24 hours before a deadline imposed
by the European Court of Human Rights. The third option— to re-enact
the current ban—would breach the Court’s judgments in the Hirst,
Greens and Scoppola cases. Introducing the draft bill in the Commons,
Mr Grayling cited Lord Hoffman in the House of Lords judgment in ex
parte Simms that ‘Parliamentary sovereignty means that Parliament
can, if it chooses, legislate contrary to fundamental principles of human
rights’. In evidence before the Lords Constitution Committee the previous
day, Mr Grayling had stated more directly that ‘certainly … we have an
obligation to comply with the rulings of the European Court but, as we
also know, parliamentary sovereignty supersedes those rulings.’ These
are bold statements, but the Lord Chancellor needed to reassure his
backbenchers, and he could do so confident that the Council of Europe
is anxious to avoid a direct conflict with the United Kingdom.
In his speech to the Commons Mr Grayling drew a distinction between his
position as Lord Chancellor, the government, and Parliament. He noted
that the government (and in particular the Lord Chancellor) is obliged to
uphold the rule of law and is required by the Scoppola judgment ‘to bring
forward legislative proposals for Parliament to consider’. Being sovereign,
Parliament could refuse to pass these proposals. In an interview with
Andrew Neil on BBC Sunday Politics, he put his position more succinctly:
‘We’ve said to Parliament, “Right, this is the legal position. We’re under
an obligation to do that, you’re not.”’
The overall approach—three options and a long consultation process—
suggests that the government is anxious to delay a decision on the
matter as long as possible, and to avoid responsibility for whatever
decision is ultimately made. It may be that the Lord Chancellor and the
government are hoping that Strasbourg will blink first rather than create a
rift with a United Kingdom that has been a leading member of the Council
of Europe. The Lord Chancellor’s approach to the bill also suggests that
his formal duty to protect the rule of law—hitherto taken for granted—
is becoming more important as the nature of the office changes. Mr
Grayling acknowledged to Andrew Neil that he may be unable to vote for
the government’s own bill if the final draft contains the third option.
CHURCH AND STATE
Female bishops, Parliament and Church Establishment
On 21 November, the Church of England rejected proposals
to create female bishops (see Unit blog). Subsequently, the
Commons agonised about the situation on 12 December and
could agree only that it had ‘considered the matter of the Church
of England vote on women bishops’. This limp conclusion at
least negatived parliamentary voices wishing to legislate for
women bishops against the wishes of the Church’s Synod. The
government’s announcement of its gay marriage proposals in early
December provoked some further Anglican dismay. For many—
if they noticed—the Church’s continued struggle with gender
and human sexuality issues epitomised the doubtfulness of its
continuing relevance to a much-changed society.
Unsurprisingly, calls for disestablishment resurfaced upon
publication of the Succession to the Crown Bill on 13 December.
The government propose to abolish one, but one only, of the
remaining constitutional disabilities imposed on Catholics: under
the bill, while a person will be able to marry a Catholic and remain
in line to the throne, the rule that the monarch may not themselves
COURTS AND THE JUDICIARY