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The Effect of the Parliamentary Voting System Act on the British Constitution*

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The Effect of the Parliamentary Voting System Act on the British Constitution* The Effect of the Parliamentary Voting System Act * on the British Constitution Perhaps presciently, in 2009 Vernon Bogdanor noted, “A hung parliament, were it to occur, would almost certainly put the reform of the first-past-the-post electoral system at the centre of the political agenda.”1 Subsequently, the 2010 British election for the House of Commons returned a hung Parliament with no party able to command an outright majority in the 650-seat House of Commons.2 The election results gave the Conservative Party a plurality of 307 seats, with the Labour Party receiving 258 and the Liberal Democrats receiving 57.3 Eventually the Conservatives and Liberal Democrats formed a coalition government with David Cameron of the Conservatives as Prime Minister and Nicholas Clegg of the Liberal Democrats as Deputy Prime Minister.4 The formal agreement between the parties set out numerous legislative goals for the coalition, perhaps most im- portantly in the area of political and constitutional reform. In particular, as Bogdanor predicted, the coalition government pledged to “bring forward a Referendum Bill on electoral reform, which includes provision for the introduction of the Alternative Vote . as well as for the creation of fewer and more equal sized [parliamentary] constituencies.”5 The coalition fulfilled this promise by passing the Parliamentary Voting System and Constituencies Act (PVS Act).6 The House of Commons passed the PVS Act on November 2, 2010.7 The House of Lords subsequently passed the PVS Act on February 14, 2011, and the PVS Act received the Royal Assent on February 16, 2011.8 In short, the PVS Act (1) provides for a referendum—to be held between May 5, 2011 and October 31, 2011—on * For my grandfather of blessed memory, David D. Becker. I am grateful to the staff and editors of the Texas Law Review, especially Sarah Hunger, Serine Consolino, Jamie France, Christopher Granaghan, and Anthony Arguijo, for their efforts in bringing this Note to publication. I also wish to thank Professor Emily Kadens and Professor Steve Bickerstaff for their helpful research suggestions. Finally, I am grateful to my family for their constant love and support. 1. VERNON BOGDANOR, THE NEW BRITISH CONSTITUTION 130 (2009). 2. Election 2010: First Hung Parliament in UK for Decades, BBC NEWS, http://news.bbc.co. uk/2/hi/8667071.stm. 3. Election 2010: National Results, BBC NEWS, http://news.bbc.co.uk/2/shared/election2010/ results/. 4. See THE COALITION: OUR PROGRAMME FOR GOVERNMENT 7–8 (2010), available at http://cabinetoffice.gov.uk/sites/default/files/resources/coalition_programme_for_government.pdf (introducing the plan for a coalition government). 5. Id. at 27. 6. Parliamentary Voting System and Constituencies Act, 2011, c. 1 (U.K.). 7. 2 Nov. 2010, PARL. DEB., H.C. (2010) 888–92 (U.K.). 8. Bill Stages—Parliamentary Voting System and Constituencies Bill 2010–11, PARLIAMENT.UK, http://services.parliament.uk/bills/201011/parliamentaryvotingsystemandconstitu encies/stages.html. 1230 Texas Law Review [Vol. 89:1229 switching from the current first-past-the-post electoral system to the alternative vote,9 and (2) reduces the size of Parliament to 600 members, from the current 650, and redraws the electoral constituencies accordingly.10 Part I of this Note examines the effect of the PVS Act on the British Constitution by virtue of the referendum. Part II of this Note examines the constitutional effects of switching the electoral system to the alternative vote.11 As the choice of an electoral system fundamentally reflects the constitutional values of society, it is the alternative-vote provisions, rather than the referendum included in the PVS Act, that represent a major reform of the British Constitution and a threat to parliamentary sovereignty. I. The Effect of the PVS Act’s Referendum on the British Constitution A. The British Constitution and the Sovereignty of Parliament In discussing the British Constitution, it is first important to clarify the sense in which Britain has a constitution. Many commentators have stated, for example, that the British Constitution is unlike other constitutions in that it is unwritten.12 Upon further reflection, however, this statement is not en- tirely correct because it conceives of a constitution in a particular manner, namely one like the Constitution of the United States. To be sure, the British Constitution is quite unlike the U.S. Constitution in that the British Constitution is not “a single instrument promulgated at a particular point in time and adopted by some generally agreed authorisation procedure under 9. The alternative vote, also known as instant-runoff voting, is a system where voters can vote for multiple candidates, ranking those candidates in their order of preference. Alternative Vote, ELECTORAL REFORM SOC’Y, http://www.electoral-reform.org.uk/article.php?id=55. For a detailed description of the alternative vote, see infra section II(B)(2). 10. Parliamentary Voting System and Constituencies Act, 2011, c. 1, §§ 1, 8–9, 11 (U.K.). The provisions of the PVS Act that propose to redraw the constituencies represent a major change for the current House of Commons. These provisions reflect an emphasis on the individual right to vote insofar as the rules for drawing constituencies change to emphasize mathematical equality of districts in apportionment rather than geographic ties. Compare id. § 11 (indicating the new rules for determining parliamentary constituencies), with Parliamentary Constituencies Act, 1986, c. 56, §§ 1–6, sch. 2 (U.K.) (specifying the 1986 rules for redistribution of parliamentary seats). The constitutional effects of changing the method of drawing constituencies, however, are unclear and are beyond the scope of this Note. 11. In its analysis, this Note assumes that the referendum will return a result in favor of switching to the alternative vote. Even if the referendum returns a result against the alternative vote, however, this Note’s analysis remains relevant because reform of the electoral system will likely remain on the British political agenda. In particular, the Liberal Democrats, as a significant third party, will continue to pressure the major parties to pass electoral reform. See BOGDANOR, supra note 1, at 131 (noting that the main aim of third parties in cases of hung parliaments has been to secure electoral reform). 12. See, e.g., ANTHONY KING, THE BRITISH CONSTITUTION 5 (2007) (“It is often said that, whereas most other liberal democracies have written constitutions, the British constitution is unwritten.”). 2011] The Effect of the Parliamentary Voting System Act 1231 the title ‘constitution’ (or equivalent rubric such as ‘basic law’).”13 Neither is the British Constitution “a list of statutes or instruments that have an entrenched status and can be amended or repealed only by a special procedure.”14 Together, these definitions conceive of a constitution as a single, special document that sets out the basic form of government. It is in exactly this sense that Britain does not have a written constitution. Rather than a single document, the British Constitution is “the combination of legal and non-legal (or conventional) rules that currently provide the framework of government and regulate the behaviour of the major political actors.”15 This definition of a constitution is more general than the sense of a constitution as a single document, but in this general sense, every country has a constitution.16 While the British Constitution, like the U.S. Constitution, sets out the framework of government, the British Constitution is made up of the entire corpus of British law, in addition to other sources.17 Thus, the British Constitution is unwritten in the sense that it is uncodified.18 Of the many parts of the British Constitution, perhaps the most fundamental is the doctrine of the sovereignty of Parliament. Parliament is composed of “the king’s majesty . and the three estates of the realm; the lords spiritual, the lords temporal (who sit, together with the king, in one house) and the commons, who sit by themselves in another.”19 In more mod- ern terms, these would be the Monarch, the House of Lords, and the House of Commons.20 For Blackstone, “the power of making laws constitutes the supreme authority,”21 and the British Constitution grants that legislative power to Parliament.22 It is important to emphasize here that the sovereignty of Parliament applies in two distinct ways. The first is, quite simply, that “Parliament can 13. Geoffrey Marshall, The Constitution: Its Theory and Interpretation, in THE BRITISH CONSTITUTION IN THE TWENTIETH CENTURY 29, 31 (Vernon Bogdanor ed., 2003). 14. Id. 15. Id. 16. Id. 17. See WILLIAM PALEY, Elements of Political Knowledge (“In England, the system of public jurisprudence is made up of acts of parliament, of decisions of courts of law, and of immemorial usages; consequently, these are the principles of which the English constitution itself consists . and by which every constitutional doubt and question can alone be decided.”), in THE WORKS OF WILLIAM PALEY, D.D.: ARCHDEACON OF CARLISLE 122 (1836). 18. KING, supra note 12, at 5. 19. 1 WILLIAM BLACKSTONE, COMMENTARIES *153. 20. See ROGER D. CONGLETON, PERFECTING PARLIAMENT: CONSTITUTIONAL REFORM, LIBERALISM, AND THE RISE OF WESTERN DEMOCRACY 301–03 (2011) (describing the King’s role in Parliament, in addition to defining “the lords spiritual” and “the lords temporal” and using “commons” synonymously with “House of Commons”). 21. 1 BLACKSTONE, supra note 19, at *52. 22. See id.
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