We really don't need medieval ritual

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“Of all the issues, in all the parliaments, in all the world, they chose this one.”  It’s not exactly Bogie-level rhetoric, but then neither does it reach the elevated level one might expect in a gin-bar. It is though, an issue which some Members of the Senedd, particularly the Tories, are attempting to turn into some sort of scandal. I’m referring, of course, to the swearing (or, rather, non-swearing) of oaths by those giving evidence to the Senedd’s Covid Committee.

Whether swearing an oath makes any difference to the truthfulness and honesty of a witness is, to be kind, an open question. Maybe in some rather more god-fearing past the fear of divine retribution made people more fearful of lying, although if someone’s life depended on not telling the truth it’s hard to believe that a mere oath would make a difference. Besides, we live in a more secular society these days, and fear of divine retribution is greatly reduced. In any event, people increasingly choose to affirm rather than swear on a holy book anyway, and the potential spiritual consequences of breaking an affirmation are undefined. (As an interesting aside, affirmation wasn’t originally introduced to accommodate atheists as many believe, but to accommodate Quakers who devoutly followed the biblical teaching of Jesus in the sermon on the mount in which he told his followers never to swear any oaths on the basis that they were duty bound to be honest anyway.)

Giving Members of the Senedd, even the Tory leader, the benefit of the doubt, I’m not convinced that they really believe that taking an oath before giving evidence will add much to the probability of truthfulness. I assume that they (yes, even Millar) have a bit more intelligence than that. I suspect it’s rather more to do with status, or perceived status. ‘Proper’ inquiries require an oath, so anything which doesn’t require one is perceived as having a lower status. But where does that ‘properness’ requirement come from, if not the arcane processes of Westminster? Wales really doesn’t need to emulate the antiquated customs of the English system: the purpose of having a parliament of our own is to forge our own future based on our own values and judgements. Getting hung up on obscure, obsolete and irrelevant medieval rituals doesn’t exactly help that.

Cutting out the middleman

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The six week suspension handed to one of Plaid’s Senedd members has provoked a comparison with the position at Westminster – in similar circumstances, a Westminster MP would be facing a recall petition and a probable by-election, but there is no such sanction available in the case of this list MS. It’s a valid question, but the suggestion of instituting a similar provision for the Senedd seems to be based on the English constitutional fiction underpinning the Westminster process, which is that people vote for an individual, not for a party. In the case of list members, the vote is unquestionably for the party. And whilst introducing such a provision for members elected on a closed list is not impossible, it does rather look like twisting the system, when there is actually a very much simpler process available.

The recall process is comparatively novel in the UK’s system, and to date there have only been five instances of a petition being called. The first of those was in Northern Ireland, where none of the UK parties operate, and in a constituency which was not seen then as being particularly competitive – it was widely assumed that the DUP would win anyway. That petition failed to attract the necessary support of 10% of the electorate. In all other cases, the 10% was reached, and it doesn’t take a genius to work out why. I doubt that there is a constituency anywhere, no matter how apparently popular the transgressing MP might be, where a determined opposition party or parties could not find 10% of the electorate wanting to get rid of their MP. We can probably, therefore, take it as read that once a petition is called, it is overwhelmingly likely to be successful.

To date, only in one instance has the transgressing member stood in the subsequent by-election (although in another case, the member managed to arrange for his party to select his girlfriend, a situation which led to a remarkable lack of external support for her candidacy). The one who did stand again was defeated in the by-election. Indeed, the idea that an MP who has either been convicted of a criminal offence or else suspended by his or her fellow MPs for a serious breach of parliamentary rules would be presented by his or her party as a suitable person for re-election is a strange one, a form of political madness. Certainly not something likely to be repeated any time soon.

So, regardless of the objective of the recall principles (that the electors should be given the opportunity to call for a by-election and that the individual should have the opportunity to stand again), the electors are always likely to say yes to a by-election, and the party is always likely to disown the previous member and select a new candidate. It is, therefore, in practice if not in principle, a process where a member in breach of the relevant rules ends up being expelled from the parliament and replaced by a new member who may or may not be from the same party. In which case, instead of trying to come up with a complex set of rules for list members to face by-elections, why not simply cut out the middleman, and declare that, on conviction (in the case of criminal acts) or suspension from the parliament for more than a specified period (in the case of a serious breach of the parliament’s rules or standards), the seat becomes vacant and the member is replaced through the normal process which would apply in the case of death or resignation? For a constituency member, that means an automatic by-election, avoiding the cost, time and effort of a petition, and for a list member, it means the appointment of the next eligible member on the relevant party’s list. It’s both simpler and more rapid than the current process, which seems to have been designed (with a remarkable lack of forethought) to maximise the chance of the transgressing member being returned to the club.

Mathematics, Pure and Applied

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In response to a question from the soon-to-be-former MP for Ynys Môn, the soon-to-be-former Leader of the House of Commons expressed her shock at the plan to increase the membership of the Senedd. Following a quick sum which demonstrated that she does at least have a basic command of primary school arithmetic, Mordaunt pointed out that if the size of the House of Commons was based on the same ratio of members to population, there would be 2,058 MPs. She should probably stick to carrying swords – at least then she’d only have to demonstrate the limits of her understanding once every coronation. And silently, at that.

Whilst the outcome of her quick calculation is mathematically accurate, several other things are equally true based on a similar calculation. If the ratio of elected members to population in the UK parliament mirrored the Scottish parliament, there would be 1,591 MPs, if it matched the Legislative Assembly of Northern Ireland, there would be 3,221, if it matched Portsmouth Council (which covers Mordaunt’s constituency) there would be 13,569, and if it matched my local community council, there would be 765,113 MPs. And there are corollaries, of course – if we take the House of Commons as our starting point, the Senedd should have only 32 members, Portsmouth Council should have 2 members, and Town and Community Councils should be abolished. As an exercise in pure mathematics, about the only sphere in which it’s rational to divorce the numbers from all meaning and start comparing apples and oranges, it’s mildly interesting. But in the real world it’s pointless and irrelevant.

The question is, or should be, what is the best number for the membership of a particular elected body, taking into account the population, responsibilities, demographics and geography. And the truth is that there is no ‘right’ answer to that question. Mordaunt’s response – typical of a Westminster MP – is based on the unstated assumption that Westminster has it right. Of course. The body charged with looking at the numbers of members of the Senedd considered a number of what they felt to be comparable legislative bodies across the world, but even doing that contains an implicit assumption that those bodies might have got it right. Ultimately, it’s a matter of opinion, and opinions will differ. Mordaunt, like the soon-to-be-former MP for Ynys Môn, clearly feels that 96 is ‘too many’, but the cynical amongst us might think that they’d say much the same if it was proposed to reduce the number to 10, or even 1.

Few politicians – especially those in an institution which considers itself to have absolute sovereignty over everything, even to the extent of declaring the truth to be untrue – like the idea that some power might be held elsewhere. Fortunately for them (to say nothing of the rest of us) their ‘soon-to-be-former’ status means that they won’t have to worry about it for long.

One big step forward is better than none

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A key part of the PM’s last stand as he attempted to deny the wishes of those who foolishly think that honesty, integrity and decency have a role in Conservative politics was his repeated claims that ‘he’ had some sort of personal mandate from the 14 million people who voted for the Conservative Party in 2019 under his leadership. Constitutionally, it’s rubbish, of course. The only people who voted for him were the electors in his own constituency; as far as the rest of the UK was concerned, people vote for individual candidates in individual constituencies and the identity of the PM only becomes known when it becomes clear who can get a majority of MPs to back him or her in the House of Commons.

But that which is constitutionally true and that which is true in practice aren’t necessarily the same thing at all, and there is a real sense in which Johnson actually had a point. Anyone who’s ever been involved in an election campaign will know that (at parliamentary level, anyway – local councils are a rather different kettle of fish) many people vote for the party rather than the candidate (and that’s at least partly based on their perception of the party leaders), some without having much of a clue about who the local candidate actually is. Then there’s the donkey vote – the idea that a donkey with the right colour rosette would still win in many constituencies because of traditional party loyalties. And it’s also why the idea that paying a larger salary would attract more people of ability is a very silly one – it’s more likely to encourage greedy donkeys. With the exception of a very small number of very marginal constituencies, the idea that the personal attributes of the candidate are the prime driver of his or her election is a convenient fiction, and even in those constituencies the difference made by the candidate is, well, marginal. A system which pretends to base itself on the idea that there is a direct and very personal relationship between elected members and their constituents is basing itself on a fiction – a convenient one for those elected individuals who have an over-inflated view of themselves, but a fiction nevertheless.

That brings me to the debate about the electoral system to be used for the expanded Senedd in Cardiff. Many of those arguing against the d’Hondt system do so on the basis of supporting the fiction referred to above: the idea that people can and should choose individuals rather than parties to represent them. Having to rank people, even within their respective parties, on the basis of preference may encourage some to think a bit more about the individuals, but I’ve yet to see any hard evidence that they do so in sufficient numbers to make voting for most people other than a question of choosing a party and sticking to it. (For sure, there is evidence of that at council level – but that’s with smaller constituencies where people can become well-known as individuals; the extent to which the same happens at parliamentary level – especially with the huge constituencies being proposed – is doubtful to say the least.)

There is no ‘perfect’ electoral system, largely because there is no universal agreement on what are the most important objectives. Personally, I have always favoured STV, but for rather different reasons. Under d’Hondt, the votes of those who support ‘minor’ parties (i.e. those which don’t reach the threshold for representation) are effectively completely disregarded, whereas under STV, their second, third (and so on) choices can influence the election outcome. In terms of maximising the influence of every elector, that simply seems to me to be a better approach. The d'Hondt system, on the other hand, does provide a very direct relationship between first choice party and overall outcome across the electorate as a whole, and unquestionably makes it easier to legislate for gender balance within the Senedd. Both have advantages and disadvantages, but both provide for a much more proportional outcome than any system in use in the UK (apart from Northern Ireland) currently. We also know that, with STV, the larger the number of seats in a constituency, the more proportional the eventual outcome. But that can become unwieldy under some circumstances. Imagine, for instance, six-seat constituencies (as proposed for the expanded Senedd) fought by six parties each putting forward six candidates – the ballot paper would include 36 names with electors being asked to rank as many or as few as they wish in order of preference.

Given that the proponents of d’Hondt for the Senedd already have the majority needed to implement their proposals, any real debate in Wales is about trying to convince the Labour Party to change its mind, an outcome which seems unlikely. Sometimes it’s just better to take the improvement that’s on offer, even if there’s only a vague hope that it might lead to something better in the future. And Welsh Labour’s conversion to a fully proportional system, even if not the one many of us would choose, is a huge step forward.

Seizing the opportunity

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There is no ‘right’ answer to the question ‘how many members should a parliament have?’ For sure, constitutional experts can pore over comparisons with other countries and earnestly assess workloads and processes, but for all that, it ultimately comes down to a judgement by politicians, often based on a compromise between what they think the answer should be and what they think the populace will accept. For those who oppose the existence of a particular institution (like many Tories in relation to the Senedd), the ‘right’ answer for them is zero, compelling them to oppose any and every suggestion of an increase. Similarly, there is neither a ‘right’ size nor a ‘right’ number of constituencies; for those who want a direct relationship between electors and their representatives, the answer is a large number of small single member constituencies, whereas for those who want the most proportional outcome possible for any election, the answer will be a small number of large multi-member constituencies. For all the attempts to rationalise and justify any particular number, the reality is that it depends on the political viewpoints and priorities of those making the decisions.

The joint declaration by Plaid and Labour yesterday that there should be 96 members elected from 16 six-member constituencies is a statement of their joint judgement on those questions, as is the knee-jerk response from the Tories opposing any increase, under any circumstances, ever. It’s a bold plan, bolder than I was expecting, and in terms of overall numbers of members and constituencies, they’ve come up with a very good answer. There are two little niggles, though.

The first is the way in which the boundaries are to be drawn. Simply using the boundaries of the 32 Westminster constituencies and pairing them up is likely to produce a few odd constituencies which don’t entirely reflect human geography. If it is, as suggested, just a ‘quick and dirty fix’, on a one-off basis to get the changes in place for the 2026 election, then it’s a reasonable way ahead. The problem is that ‘quick fixes’ have a tendency to become established: agreeing changes is always difficult, and by the time they are up for discussion there will be elected members who are invested in those boundaries.

The second is the method of election, using the d’Hondt system, rather than full STV. The method is not without its advantages. Marking just one party with a single cross is similar to the familiar FPTP system, and was used for electing MEPs. It produces a much more proportional result overall (even based, as it effectively is, on counting only first choice votes), and coupled with the proposal that parties will have to ‘zip’ male and female candidates is likely to produce a very gender-balanced Senedd. It abolishes the distinction between ‘constituency’ and ‘list’ members, under which the latter were often perceived (wrongly) to be some sort of second-class members. It also helps to shatter the myth, fundamental to the Westminster system and much beloved by certain egotistical politicians, that the election of individuals is down to their unique talents and abilities and not to the colour of their rosette; that voters elect individuals not parties. (There has been, as far as I can see, no mention of the obvious corollary – any MS elected solely on a party ticket who ‘jumps ship’ should be disqualified and replaced with the next person on the relevant party’s list. That’s a flaw in the current system for list members and could easily be rectified as part of these new proposals.) There are some downsides, though. It is not as fully proportional as a full STV system; so-called ‘closed’ lists leave considerable power to determine which of their candidates get elected in the hands of the parties rather than the electorate; and it takes no account of the second (third, etc.) preferences of those voters whose first choice party doesn’t cross the threshold for representation.

It bears the obvious hallmarks of compromise between two parties seeking out common ground in order to get something in place whilst they have a window of opportunity to do so, but is nevertheless better and more radical than I had expected from such a process. None of us knows when – or even whether – such a window of opportunity will present itself again. We should not delude ourselves about the timescale – or even the possibility – of further change once these changes are in place, but they represent a huge leap forward from where we are today. Grabbing that opportunity whilst the Senedd majority for implementing it exists is more important than any remaining niggles.

Constraining the work of the Senedd

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One of the consequences of the exceptionalism so prevalent in Westminster is that most of the politicians there are incapable of imagining that there is any way of doing things that could possibly be better than that used by themselves. They really do believe that dividing legislators in binary fashion into government and opposition and lining them up on two sides of a room – at a distance equivalent to the length of two swords, just in case things get a bit too heated – to bellow at each other is a rational and reasonable basis for debate. So it’s really no surprise to find that the Secretary of State, who survived the last reshuffle presumably because Boris Johnson had forgotten he was there, is struggling to understand how an opposition party can formally agree to support the government on some issues but not on others. The idea that the political parties in any parliament can set out to work on a more consensual basis is clearly causing his brain some processing difficulties.

It seems, however, that there is indeed a potential problem under the rules of the Senedd, on which the Llywydd is seeking legal advice. Those rules are contained in the legislation governing the operation of the Senedd – which was, of course, written by those who think that Westminster is the only conceivable model for running a parliament. There’s nothing at all surprising that people who believe that a binary division is the only possible modus operandi would end up imposing the same principles on its subordinate legislatures. Whether the deal between Labour and Plaid is good or bad is, of course, a matter of opinion; but the attempt to agree in advance on a deliverable programme in a host of policy areas is in principle a noble one and an entirely sensible approach in a chamber elected by a proportional (albeit imperfectly) system. The idea that a national parliament can be prevented from deciding for itself what processes suit the nation best underlines, yet again, the core problem with devolution. Power, even over what look like procedural minutiae, remains in London.