It is often said that the United Kingdom doesn’t have a constitution. (Thus, the renowned constitutional expert Prof Vernon Bogdanor has quipped that his entire career has been based on talking about something that doesn’t exist!) That is not quite true. The UK does not possess a single document termed a Constitution. But the functional equivalent of one does exist – albeit spread across various Treaties, Acts of Parliament and other documents, and placing far fewer restrictions on the law-making abilities of parliament than most democratic constitutions do.
The UK’s devolved institutions, however, are in a somewhat different position. The various Acts establishing them and revising their powers operate as the very close equivalent to a written constitution: a core text that does much to define the main governmental institutions, their shape, and the scope and scale of their powers.
Among the things that such legislation determines is how the institutions are elected. In Wales, the 1998 Government of Wales Act provided for a 60-seat National Assembly, with 40 seats to be elected on a constituency basis and 20 seats to be elected from five regional lists. The 2006 Government of Wales Act made one specific amendment to the electoral system: it prevented individuals from standing as candidates both in a constituency and on a party regional list (so called ‘dual candidacy’). The current Wales Bill provides for the removal of that ban on dual candidacy.
But common to all these pieces of law is that control over how the NAW is elected has been retained wholly within the hands of Westminster. The same is true for the other devolved chambers as well: while the Scottish Parliament and Northern Ireland Assembly have many powers, they cannot alter the systems under which they are elected. The electoral systems remain firmly under the control of parliament in London.
Things are different for local government. There was a major reform of the electoral system for Scottish local government introduced in time for the 2007 Scottish local elections. The Single Transferable Vote system was introduced – a very different system to the mix of single- and multi-member district plurality used previously. This was done entirely by an Act of the Scottish Parliament. In Wales, Local Government is one of the twenty subjects that are devolved to the Assembly;
therefore, it would be possible for the NAW to alter the electoral system, and other aspects of how local elections are conducted, in Wales. Thus, the devolved chambers are in the slightly ironic position where they control the electoral system used by other entities – Welsh local authorities – but have no control over how they, themselves, are elected. (EDIT, 8.52, 27/10/14: Thanks to Peter Black for pointing out – see comments below – that, apparently, the National Assembly does NOT have the legal competence to change the electoral system for local government elections in Wales. I had misunderstood that point. I will try to track down precisely WHY the Assembly does not have the competence to do this).
In this context, it was interesting to read the following point within the recent joint statement made by the four party leaders in the Welsh Assembly:
“7. Calls on the UK Government to give the National Assembly for Wales the power to determine its electoral arrangements”
I welcome this statement, and would welcome the change if enacted. However, I do so with a significant qualification.
Political parties are, inherently and unavoidably, interested actors with regards to electoral systems. In any representative democracy that has political parties it cannot be otherwise. There will always be a temptation for political parties to try to change those systems to their own narrow advantage. Thus, the constitutions of many political systems include provisions to make this difficult. For Westminster, no written constitution inhibits a majority party in the House of Commons from seeking to manipulate the electoral system. But any temptation to try to do this is restrained by two key factors. The first is the House of Lords: an upper chamber where no party has a majority, and in which many members act with considerable independence. Any attempt to manipulate the electoral system for partisan advantage would almost certainly run into fierce criticism, and substantial parliamentary obstruction, in the Lords. Second, any such attempt would also face substantial scrutiny and criticism in the news media. The bad publicity that would be attracted by a party seeking to fix the system for their own benefit would quite likely outweigh any advantages gained from the changes made.
A problem we have in Wales is that both of these checks on potential partisan manipulation of the electoral system are absent. We have a unicameral legislature: there is no second chamber that can slow the legislative process down, or force reconsideration of proposed changes. Perhaps even more importantly, we do not have a sufficiently strong native media to raise widespread public ire against the unacceptable use of political power. The potential danger, therefore, is clear: if a party (or even a coalition of parties) with a temporary narrow majority sought to manipulate the National Assembly electoral system for their own benefit, there would be few significant obstacles in their way.
I would, therefore support the devolution of powers over the electoral arrangements of the NAW to the NAW if, and only if, the following condition were attached to the legislation. Any changes should require approval not merely by a majority of those voting within the Assembly, but by a ‘super-majority’. That super-majority should be significant: at least two-thirds, and possibly even three-quarters. We should not seek to make change impossible. But given the innate and substantial self-interest that parties have in electoral systems, it is essential that changes should reflect a broad, cross-party consensus.
The electoral system, in any political system, should never be the plaything of one political party. It was very welcome to see acknowledgement of this, by both Carwyn Jones and Andrew RT Davies, in last Tuesday’s Assembly debate on the future of devolution. Both appeared to agree on a two-thirds threshold for electoral system change. By writing into the relevant legislation a super-majority requirement, Wales would be provided with the equivalent of a written constitutional protection against partisan manipulation. That would be a very good thing.