Goodness knows there are many flaws with the Coalition UK Government’s Parliamentary Voting System and Constituencies bill, to do with both its proposals regarding parliamentary constituencies (see previous post HERE, and also this very useful paper published by the British Academy), and the referendum on the Alternative Vote. The Lords Constitution Committee has not been idle, and published a highly critical report on it over the weekend, available here. The report doesn’t limit itself to the working of the bill, but highlights the danger that a smaller House of Commons would be more prone to dominance by the executive. It also criticises the holding of the AV referendum on the same day as polling in the Scottish, Welsh and Northern Ireland devolved elections, saying
we regard it as regrettable that the Government should have failed to consult appropriately with the devolved institutions on the timing of the referendum (para. 23).
But it’s surprising to see that, in Labour’s eyes, one of the flaws of the bill is its alleged hybridity. Hybridity arises when a bill deals principally with matters of public law, but also has provisions that affect some members of a class differently to others. (See here for the summary of hybridity on the Parliament website.) This usually relates to their private rights, so the most common cases of hybridity (at least in recent years) have been major infrastructure projects such as the Channel Tunnel Rail Link or Crossrail. Those bills were hybrid because they affected some householders differently to others, because of the compulsory acquisition of parts of their property (or nuisances such as noise). The result of a bill being hybrid is that it falls subject to special procedures in Parliament, resembling private bill procedures at committee stage. As a result those affected can submit their petitions to a Select Committee in each House, which sits semi-judicially to consider them. (I once spent a year working for a firm of parliamentary agents, who promote and oppose private legislation, so acquired a decent grasp of this at the time.)
To judge from what’s being reported of this, Lord Falconer (BBC News report here, Daily Telegraph report here; also interviewed on Radio 4’s ‘Today’ programme) thinks that the way some constituencies are protected from the review makes the bill hybrid. (He appears to be thinking of Western Isles and Orkney and Shetland, rather than the two mainland Scottish seats.) With all respect to Lord Falconer, this is at best tendentious. First, it assumes that the right to vote in a particular size of constituency is the sort of right with the sort of specific effect that makes the legislation involved private in nature. Second, it assumes that Parliamentary votes and resolutions are the means to determine that.
Treating one area differently to another is the stuff of what Parliament does. Apart from anything else, treating a bill like this as private for that reason would mean that the sorts of pilot schemes beloved of Labour in office for social security or whatever, which applied in one locality but not another, were similarly private. Whatever gave rise to them would similarly have been hybrid legislation and subject to the appropriate procedures – which wasn’t the case.
Is the right to vote, or the size of the constituency one votes in, a sufficiently ‘private’ right in any event? It’s a difficult question, but it’s hard to say that it is. It’s never been treated as that in the past. The extent to which the individual’s right to a numerical value of their vote can be protected is highly problematic. Votes are always aggregated with those of others, and the impact on an individual of sharing a constituency with ‘only’ 38,000 others rather than 90,000 is limited. One’s vote is still highly diluted in its individual value, even if it’s accepted as being a private interest not merely a right to participate in a wider public activity. And those most directly affected by the bill – voters in Orkney and Shetland, and the Western Isles – benefit from this, rather than suffer. The harm experienced by others elsewhere because of their favourable treatment is pretty slight too.
Moreover, it’s odd to put this matter in the hands of Peers or MPs. It’s traditionally been a matter for senior officials of each House, who together act as the Examiners of Petitions of Private Bills and certify if legislation is hybrid or not. (They now include legal counsel in each House, as well as clerks of the bill offices.) It may be that this is being poorly reported and the proposed vote will refer the bill to the Examiners for them to determine its status, as happened earlier this year with the Local Government bill. In that case, the bid to have the bill declared as hybrid failed, costing the Government about two and a half weeks. In one other famous case (famous to parliamentary agents, at least), nationalisation legislation proposed by the 1974 Labour government was seriously held up when the bill was found to be hybrid, as certain ship repairers were scheduled for nationalisation while others weren’t.
Nonetheless, it’s fitting that a constitutional mess of a bill should run into constitutional difficulties, even if they’re not those that one might logically expect. It’s also telling that two parties committed to constitutional propriety, one of which has also shown a serious and long-standing commitment to constitutional reform, have managed to handle constitutional measures in quite such a clumsy fashion.