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contract: towards a public law framework?™ (2002) 65 MLR 611.
Part III
Accountability
8

Parties, groups and the people




Contents
1 The people in the constitution
2 Elections and the mandate
(a) Review of constituency boundaries
(b) Fairness of the contest
(c) The electoral system
(d) The mandate
3 The people and government
(a) Referendums
4 Political parties
(a) Selection of candidates
(b) Party policy
(c) Financial resources
5 Pressure groups
6 Open government
(a) Code of Practice
(b) Freedom of Information Act 2000


This chapter and the following two are concerned principally with questions
relating to accountability and, in particular, to the accountability of government.
We have divided our discussion of accountability into three broad areas, although
it is important to stress that these areas should be seen as operating with and
alongside one another and not in opposition to one another. (This is not to say
that there are no tensions between the various forms or institutional mechanisms
of accountability, however.) In this chapter we consider what might rather loosely
be called popular accountability and ask ˜what role or roles does the British con-
stitution accord to its people™? In chapter 9 we focus on questions of parliamen-
tary accountability which, traditionally, has been the most important form of
governmental accountability in the British constitutional order. In chapter 10 we
consider the role of the courts in providing, for example, for mechanisms
whereby government actions and decisions may be judicially reviewed.
494 British Government and the Constitution


1 The people in the constitution
An ideal conception of a democratic society is one in which the people contin-
uously and actively participate in political a¬airs. In the real world, societies that
fall short of this ideal are nevertheless termed democratic if by their constitu-
tions the people freely elect a government and can at frequent intervals dismiss
it and elect another. To this extent, at least, the constitution of the United
Kingdom is democratic (see pp 34“40 above). Periodic elections provide for an
accountability of the government to the people “ in their role as electorate “
who have in this respect a place in the constitutional system.
According to a modern theory of democracy fathered by Joseph Schumpeter
(Capitalism, Socialism, and Democracy (6th edn 1987)), the intermittent electoral
role of the people is as much popular involvement in the practice of government
as can take place or is desirable. In this theory the people choose, from compet-
ing ©lites, the government whose business it is to make policies and laws and
provide leadership, and do not themselves attempt to decide on issues or
in¬‚uence policy-making. Democracy, says Schumpeter, ˜means only that
the people have the opportunity of accepting or refusing the men who are to rule
them™ (at pp 284“5). Does this bleak and limited (but, its adherents say, realistic)
conception of democracy ¬t the theory and practice of the British constitution?
Do elections provide only a retrospective accountability of government, and not
the possibility of choosing between or in¬‚uencing policies? In our representative
democracy, what role, and what in¬‚uence or power, are allowed to the people
in the government of the country between elections? David Judge has drawn
attention to the ˜paradox™ that ˜parliamentary representation serves to include
“the people” in decision-making, indirectly and infrequently through the process
of elections; yet, simultaneously, it serves to exclude them from direct and con-
tinuous participation in the decision-making process™ (˜Whatever happened to
parliamentary democracy in the United Kingdom?™ (2004) 57 Parliamentary
A¬airs 682, 683).
The o¬cial or dominant theory of the British constitution has never located a
supreme authority in the people and when a concept of sovereignty was invented
it was, as we saw in chapter 2, attributed not to the people but to the Crown in
Parliament. Since the seventeenth century there have been writers, radical politi-
cians and reformers “ from the Levellers to Thomas Paine to the Chartists “ who
have claimed sovereignty for the people or have declared the people to be the con-
stituent power of the state, by whose consent political authority is exercised.
These ideas, in various forms (and various understandings of what was meant
by ˜the people™), ¬‚amed by turns bright and dim outside the pale of the pre-
democratic constitution. Even the establishment of democracy in the nineteenth
and twentieth centuries did not supplant the o¬cial theory with one of popular
sovereignty. R McKenzie and A Silver wrote in 1968 (Angels in Marble: Working
Class Conservatives in Urban England) of the ˜modest role accorded “the people”
in British political culture™, and continued (p 251):
495 Parties, groups and the people


Though modern constitutions typically locate the source of sovereignty in ˜the people™, in
Britain it is the Crown in Parliament that is sovereign. Nor is this a merely technical point.
The political culture of democratic Britain assigns to ordinary people the role, not of citizens,
but of subjects.

Or as Vernon Bogdanor tersely notes, the British constitution ˜knows nothing
of the people™ (Power and the People (1997), p 15). Yet Dicey acknowledged
that the electorate had come to possess “ or at least to share in “ the political
as opposed to the legal sovereignty in the state (Law of the Constitution (1885),
pp 73“6), and to declare, in his arguments for the referendum, that the time
had arrived ˜for the formal recognition of a principle which in fact, if not in
theory, forms part of our constitutional morality™ ((1910) 212 Quarterly Review
538, 550). In our own time the idea that the people are, or should be, sovereign
has won increasing support, as when Lord Hailsham said that ˜the essence of
democracy is a statement about sovereignty residing in the electorate™ (The
Dilemma of Democracy (1978), p 194) or in Tony Benn™s insistence that our
parliamentary democracy is based ˜not upon the sovereignty of Parliament, but
upon the sovereignty of the people™ (Industry, Technology and Democracy, IWC
Pamphlet No 60 (1978), p 6). The draft Constitution of the United Kingdom,
published by the Institute for Public Policy Research in 1991, declared the
source of its authority as ˜We the People of the United Kingdom™ and the Liberal
Democrats™ Green Paper proposing a written constitution (˜We, the People™:
Towards a Written Constitution (1990)) a¬rmed ˜an unshakeable belief in the
sovereignty of the people of the United Kingdom™. Will Hutton (The State We™re
In (rev edn 1996), p 288) argued that ˜political power and authority needs to
be ¬rmly rooted in the people™ and proposed institutional reforms for realising
that goal.
The unresolved role of the people in the constitution lies at the heart of argu-
ments about the electoral system, referendums, the relation between electors
and their representatives in Parliament, and the public™s ˜right to information™.
If the people were acknowledged in constitutional theory as the source of
political authority, debates on these matters would be conducted in di¬erent
terms. New ways forward might be opened up, towards greater democracy in
the public and semi-public institutions of society.


2 Elections and the mandate
The Electoral Commission, Election 2005: Turnout (2005), p 53

Elections underpin our democracy, ensuring that our representative institutions are both
accountable to public opinion and legitimised by it. They provide an opportunity for politicians
and political parties to outline their ideas and to defend their performance. Elections can inter-
est, inform and empower people and, by doing so, can help to build political engagement.
496 British Government and the Constitution


The maximum duration of Parliament is ¬ve years (Parliament Act 1911, s 7)
and its life can be extended only by an Act to which both Houses have assented.
(As to whether the Parliament Acts could be used to amend or delete the
requirement in section 2(1) of the 1911 Act that both Houses must assent to any
such extension, see the views expressed in R (Jackson) v Attorney General [2005]
UKHL 56, [2006] 1 AC 262 at [32], [57]“[60], [79], [118], [122], [139], [164],
[175], [194].) In practice Parliament is normally dissolved, at the request of
the Prime Minister, before it has run its full term, and since the Second World
War the average duration of a Parliament has been approximately three years
and six months.
The franchise, which is governed by the Representation of the People Acts
1983 and 1985, as amended, is possessed by all adult British citizens,
Commonwealth citizens and citizens of the Republic of Ireland who are not
disquali¬ed by law (eg as members of the House of Lords), are resident in a con-
stituency and are included in the electoral register for that constituency. The
procedures for registration have in the past been defective, with the result that
large numbers of eligible electors were omitted from the register and conse-
quently disabled from voting. It has been estimated that in 2000 approximately
3.5 million people in England and Wales who were entitled to vote were not
on the electoral register (Electoral Commission, Understanding Electoral Regis-
tration (2005)). The Representation of the People Act 2000 introduced a new
system of ˜rolling registration™ by which the register remains in force inde¬nitely
and is continually updated, electors being able to register at any time of the year
instead of by reference to a single annual qualifying date. The Act also made it
easier for homeless persons to register. It does not appear, however, that these
provisions signi¬cantly a¬ected registration rates. New provisions in the
Electoral Registration Act 2006 are designed to improve the process of registra-
tion so as to ensure that registers should be as complete and accurate as possi-
ble, and the Act places a duty on electoral registration o¬cers to take all
necessary steps to ensure comprehensive registers. (See further Constitutional
A¬airs and O¬ce of the Deputy Prime Minister Committees, First Joint Report,
HC 243 of 2004“05.)
British citizens who are resident abroad may qualify for the vote as ˜overseas
electors™ under the Representation of the People Act 1985, as amended, if they
were included as being resident in the United Kingdom in a parliamentary
register of electors within the preceding 15 years. (In January 2005 only 7,850
British citizens living abroad were registered as overseas voters: HC Deb vol 429,
col 547, 17 January 2005.)
From 1945 to 1997 the turnout of voters at general elections ¬‚uctuated
between 71 per cent and 84 per cent of the electorate. In the June 2001 election
the turnout was 59.4 per cent, the lowest since 1918, and in the election of May
2005 it increased only slightly to 61.4 per cent. (See Kellner, ˜Britain™s culture of
detachment™ (2004) 57 Parliamentary A¬airs 830; Curtice, ˜Turnout: electors
stay home “ again™ (2005) 58 Parliamentary A¬airs 776.)
497 Parties, groups and the people


The votes of the electorate in a general election not only determine the com-
position of the House of Commons but also “ unless the result is a hung
Parliament “ decide which of the competing parties will form a government.
The present system accords with a conviction “ not universally held “ of the
merits of one-party government based on an absolute majority in the House of
Commons. Views about the best system of election will di¬er according as
emphasis is placed on electoral choice of a government, or on the desirability of
a truly representative elected House from which a government, re¬‚ecting the
balance of parties in the House, will emerge.


(a) Review of constituency boundaries
Within the constraints of the existing plurality (or ˜¬rst past the post™) electoral
system it is clearly desirable that votes should be, as nearly as possible, of equal
value: a vote in Hammersmith should be worth as much as a vote in
Huntingdon. If this is to be substantially achieved, the boundaries of con-
stituencies should be drawn in such a way that their electorates do not di¬er too
greatly in size. Other factors may also have to be taken into account in drawing
the boundaries, but it is of the greatest importance that the process should not
be in¬‚uenced by considerations of party advantage.
The Parliamentary Constituencies Act 1986, consolidating previous legisla-
tion (and as amended by the Boundary Commissions Act 1992), provided for
constituencies to be kept under review by four permanent Boundary Commi-
ssions, one each for England, Scotland, Wales and Northern Ireland. Following
the completion by the Boundary Commissions of their Fifth Periodic Review of
constituency boundaries in 2006, future reviews will be carried out by the
Electoral Commission established by the Political Parties, Elections and
Referendums Act 2000, which as one of its several functions is to assume the
responsibilities of the Boundary Commissions. The following description of
the process of boundary revision focuses on the new Electoral Commission,
which will however be governed largely by the same rules, and will follow
broadly similar working practices, as those which have guided the Boundary
Commissions.
The independence of the Electoral Commission from government and from
political parties is assured by the provision made for the appointment of its
members. Electoral Commissioners are appointed by the Queen on an Address
from the House of Commons, the motion for the Address to be made with the
agreement of the Speaker of the House and after consultation with the leader of
each political party that is registered under the Act and has two or more sitting
MPs. (See below as to registration of parties.) No person may be appointed as
a Commissioner if he or she is a member of a registered party or has in the past
ten years been an o¬cer or employee of a party or a registered donor to party
funds or has held a relevant elective o¬ce (eg as an MP). An Electoral
Commissioner may be removed from o¬ce only on an Address from the House
498 British Government and the Constitution


of Commons, which may not be moved unless the Speaker™s Committee (see
below) has reported that it is satis¬ed that there are grounds for removal, such
as are speci¬ed in the Act.
The Electoral Commission will be required to carry out a general review of
constituency boundaries in each part of the United Kingdom at intervals of not
less than eight or more than twelve years, and to submit separate reports to the
Secretary of State with respect to each part, setting out the changes it recom-
mends. The Commission may also conduct interim reviews of particular areas
in any part of the United Kingdom at any time, and this option may be used to
realign parliamentary constituencies with revised local government bound-
aries, or to take account of a substantial change in the population of an area.
The Electoral Commission is to establish four Boundary Committees, one
each for England, Scotland, Wales and Northern Ireland. Each Boundary
Committee is to be chaired by an Electoral Commissioner and must include at
least two other members, each of them to be either an Electoral Commissioner
or a deputy Commissioner appointed by the Commission to serve on the
Committee. When the Commission intends to prepare a report for submission
to the Secretary of State, the Boundary Committees will carry out reviews of
their respective areas with a view to proposing recommendations to be included
in the Commission™s report. The Commission may give binding directions to a
Boundary Committee, provided that these are consistent with the rules in
Schedule 2 to the Parliamentary Constituencies Act 1986 (below). Expert assis-
tance (on population changes and mapping) is to be given to each Boundary
Committee by two assessors, the Registrar General for the relevant part of the
United Kingdom and the Director-General of Ordnance Survey (with a slightly
di¬erent provision for Northern Ireland).
The Electoral Commission may accept a Boundary Committee™s proposed rec-
ommendations in full, or subject to modi¬cations agreed with the Committee, or
may reject the proposed recommendations and require the Committee to recon-
sider its proposals or carry out a fresh review. In formulating its recommenda-
tions for the revision of constituency boundaries, the Electoral Commission must
give e¬ect to the rules for redistribution of seats contained in the Second Schedule
to the Parliamentary Constituencies Act 1986. The Schedule (including the
amendments made by the Political Parties, Elections and Referendums Act 2000)
is as follows.

SCHEDULE 2

R U L E S F O R R E D I S T R I B U T I O N O F S E AT S

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