My Lords, I start by thanking the noble Lord, Lord Pannick, for his amendment. I also thank all those who have contributed to what has been a very good debate. Given the way that the noble Lord, Lord Pannick, presented his amendment, I am sure several constituency associations will be lining up to engage him for various cases when the Boundary Commissions bring forward their proposals. I appreciate not only the manner in which the noble Lord presented the amendment but his willingness to engage. As he recognised in moving the amendment, considerable efforts have been made to see whether the Government and the noble Lord, Lord Pannick, could find common ground.
The effect of the amendment would be to give the four Boundary Commissions discretion to propose constituencies with an extended 15 per cent range-from 92.5 per cent to 107.5 per cent of the United Kingdom's electoral quota-in the event that the commission considers that exceptional local ties or geographical circumstances make it necessary to create a viable constituency. As my noble friend Lord King indicated, at the heart of this part of the Bill is the principle of seeking equal value-one vote, one value-and doing so in order that the new boundaries can come into effect for the general election to be held in 2015. The Bill before your Lordships' House is founded on the clear principle that constituencies should contain an equal number of voters. Having given great consideration to the points put forward and the detail, we do not believe that these principles would necessarily be achieved-they would certainly be put at risk-by passing this amendment, so we find that we must resist it.
The principle that constituencies should contain an equal number of voters is not exactly new. The existing legislation-the Parliamentary Constituencies Act 1986-requires the Boundary Commissions to recommend seats that are as near to equal as practicable. The problem with that legislation, as has been mentioned on many occasions during our debates in this House and the other place, is that although it clearly sets the goal of equal constituency sizes, the mutually contradictory rules in the Act result in a wide variation of constituency sizes. That is not an abstract problem. One person, as we have said, should mean one vote. Nor is it just a matter of local representation; the nature of our parliamentary democracy means that one's vote is one's stake in who forms the Government of the day. As we have also heard in debates, turnouts will vary but the system should not compromise an elector's stake in the Parliament long before a ballot has been cast.
That is why the Bill that the Government brought to this House had very few named exceptions to the parity principle-only two constituencies out of 600. The specific exceptions that we made were born of necessity to guarantee effective representation in constituencies that were not only geographically remote but had no obvious link to a mainland constituency. The same principle informs the geographical size limit, which also has very limited application. I acknowledge that there is a range of views across your Lordships' House on which specific areas, if any, should have such treatment in the Bill. However, as has been said, the general principle of equality is accepted on all sides of the House. That equality informs the guiding principle in the rules in Clause 11. It is clear that absolute equality is neither desirable nor practicable. That is why the Bill already moves from absolute equality to allow flexibility for the Boundary Commissions to vary seats by 10 per cent between the smallest and the largest. My noble friend Lord Maples made that point. The amendment of the noble Lord, Lord Pannick, would allow a range of more than 11,000 voters between the smallest and the largest.
The figure of 5 per cent, moving as it does from absolute equality, has a rationale. We have made it clear that in our judgment it is the closest to equality that can be achieved while allowing wards to continue being the building blocks of constituencies in most cases in England. For local government reasons the wards in Scotland and Wales are somewhat different. However, the figure seeks to strike the right balance between the principle of "one elector, one vote" and the opportunity for local flexibility. Last night we debated a government amendment that will reinforce the notion that the commission should use wards in this way.
I hope no one can doubt the Government's commitment to the guiding principle in the Bill: that as far as practically possible there should be equality of treatment between electors. In our view, the only case for exceptions to this principle should be where Parliament has determined that the exception is merited. We have debated, and will return later, to several specific exceptions. That is how we should move forward when we approach these very difficult issues.
The noble Lord, Lord Pannick, fairly pointed out some of the concerns that the Government have rehearsed with him as we have discussed these matters. Our first concern is that, although I understand where the amendment comes from, it breaches the principle of equality of treatment. The Boundary Commissions would be set a clear task by the Bill's provisions: to propose constituencies that are within the same range of 7,500 electors across the whole of the United Kingdom, subject to the two named exceptions. There is also the exception that has already been voted for by the House. The same rule applies to everybody unless an exception has been explicitly approved by Parliament. That does seem to be an approach that is rooted in some principle.
By contrast, the amendment asks the Boundary Commissions to grant a number of special seats outside the general rule, effectively conferring special status on electors who live there. That could put the Boundary Commissions in a difficult position. Let there be no doubt that the Boundary Commissions would be in an invidious position. A decision about special treatment for one elector has a direct impact on an elector elsewhere. The noble Lord, Lord Pannick, said that the impact would be felt in a next-door constituency, but it does not necessarily follow that it would. This is particularly the case in Scotland, Wales and Northern Ireland, where there is less scope in the number of seats to make adjustments. To take Scotland as a case in point, on the 2009 electorate figures Scotland would have 50 seats plus the two exceptions. Once the commission had proposed a number of smaller seats at 92.5 per cent to take account of the sparsely populated areas in the highlands, the result would be that it would have to allocate larger seats on average elsewhere.
That could already happen to some degree under the Bill; the key difference is that at present under the Bill there is one rule for everyone. In other words, one part of the country's exception would be another part of the country's squeeze. There would be less flexibility in another part of the country, which might be some distance away. Under the amendment, the commission would be asked to award greater power to electors in a smaller number of seats outside the norm for the rest of the country. As my noble friend Lord Elton said, that goes against the principle of the value of the vote as set out in the Bill. The noble Lord's amendment would ask the commissions to trade off the rights of different communities alongside potentially far-away constituencies.
There is a further point, which relates to timing. If these changes were made as a result of representations taken after the first period of consultation, because exceptional circumstances had been identified at the second phase, constituencies that were perfectly happy and content with the original proposals might well find that because a change was made in one or two places the ripple effect meant that what was acceptable first time around would not be acceptable second time around.
I recognise the attempts that have been made in the amendment. Regarding judicial review, on which much has been said in this debate, I agree with the noble Lord that the amendment would send a clear signal to any court considering a judicial review of the Boundary Commission's decision to exercise flexibility. However, I am concerned less about the verdict of the court than the effect that the amendment might have on the conduct of the boundary review in practice. There might be an effect not only on how the commission balanced the specific factors referred to in the amendment but in the greater subjectivity to which the amendment could lead. The noble Lord's prediction that a commission may ultimately have the support of the courts, if the matter were put before them, might turn out to be right, but the effect of giving the commission discretion for exceptional circumstances might, in the real world, mean that it felt compelled to use that discretion. The experience of trying to set a high bar to limit the exercise of discretion is not always encouraging. In reality, a procedure sanctioned expressly on the basis that it is intended as exceptional can, and sometimes does, end up becoming common practice.
My noble friend Lord Rennard made an important point on the question of what a viable constituency is. To whom is it viable? Is it viable to the electors or to the Member of Parliament? Also, there are four Boundary Commissions. If each took a different view on what constituted a viable constituency, the danger would be that we could move even further away from trying to achieve the equality that is at the heart of the Bill.
Even unsuccessful judicial reviews will have an impact on resources. I hear and give careful consideration to the points made by noble Lords with considerable experience, including the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Pannick. I also heard what the noble and learned Lord, Lord Scott of Foscote, said about the opportunity to use litigation and judicial review as a means of stringing things out. On many occasions in our debates, noble Lords have mentioned that it is important that the Boundary Commission proposals are presented to Parliament and passed in good time for the 2015 election to be fought on new boundaries.
I make a further point on the figure of 7.5 per cent on either side of the UK boundary quota. I have already described the Government's case for a range of 5 per cent on either side. I am not sure what rationale there is for the figure of 7.5 per cent; perhaps it is because it is half way between 5 per cent and 10 per cent. Sometimes compromise is right, but, as I have indicated, strict equality would be zero. Our movement to accepting a 5 per cent variation already allows for some of the geographical considerations and local ties that have been mentioned.
In conclusion, exceptional treatment would not help some of the specific cases that have been debated-for example, in Argyll and Bute. It would not guarantee the sanctity of the Tamar. I recognise and welcome the spirit in which efforts have been made to find common ground on which we could have moved forward. I thank all noble Lords who have sought to help us make progress. However, I hope that I have set out that, in practice, the amendment not only would place the commissions in a difficult position but could breach the principle of equality of treatment that is at the heart of the Bill. There would be a potential risk that the Boundary Commissions' target of reporting before the next election is fought in 2015 would not be met. I invite the noble and learned Lord to withdraw the amendment.