Parliamentary Voting System and Constituencies Bill

I certainly recognise that. I also recognise that this is a bicameral House and I hope that it stays as such. One of the jobs of a bicameral House is for the second Chamber to revise what the first Chamber has done, and that is particularly important on constitutional issues. I return to the core amendment. I want to speak only on Amendment 73, but there is a wider point here that affects some of the others. There is great diversity in this group of amendments, and it might have been better if some of them had been separated out. Those tabled by the noble Lords, Lord Rennard and Lord Tyler, might have been better as a separate group because there is quite a bit in them that is separate from the others. I want to focus on Amendment 73 in the name of my noble friend Lord Kennedy, where he suggests replacing the word ““may”” with ““shall””. Many people in this Committee will recognise that the wording of a Bill and the use of words such as ““may”” is critically important, because it carries legal weight. The word ““should”” is not very different from ““may”” and, I say to my noble friend, not much better. This point is important because it relates to some of the other amendments in this group. Why do we not use the word ““shall”” in relation to my noble friend’s amendment? It is a stronger commitment. The Minister will know that, in several other places following this, the word ““shall”” is used. The obvious example is in rule 6 the new schedule, which states: "““There shall continue to be … a constituency named Orkney and Shetland””." The Government want that to be legally enforced, so the use of the word ““shall”” is essential. In rule 5, however, as my noble friend has picked out, the word ““may”” is used. In other words, it states: "““A Boundary Commission may take into account, if and to such extent as they think fit … special geographical considerations””." The Explanatory Notes to the Bill and many of the things that Ministers have said from time to time indicate that they also regard the things listed in rule 5(1)(a) to (d)—that is, special geographical factors, local government, local ties and the inconvenience attendant on such changes—as very important. Schedule 2, the measure that is driving them forward on this Bill, says: "““The electorate of any constituency shall””—" so there they are using a very strong form of wording that has strong legal force. However, back over the page, as I say, they use the much softer word ““may””, which does not have that commitment. I am after an answer from the Minister because this question affects other parts of the Bill—certainly some of those affected in this group of amendments—but I am trying to focus on one for the sake of clarity. There is in fact no reason why we should not also use the word ““shall”” in rule 5. If we are all saying, as the Government have done, that we want these things to be taken into consideration, the use of the word would not undermine the use of ““shall”” in rule 2(1)— "““The electorate of any constituency shall””." It would simply instruct the Boundary Commission in a much more forceful way to take into account the factors that Ministers and Members on all sides of the Committee say are important. I do not see why we should not ask the Boundary Commission to do that. The Minister might well say that it could bring up legal challenges. I understand that that could be a problem. We do not want lots of reviews by the courts of such things. Having said that, there is no way that we can assume that these factors are not important. Nor is there any reason to assume that the number of challenges in a court of law would necessarily be different if we used the softer word of ““may””. That does not rule out a legal challenge. It might make it more difficult to win but it does not rule it out, as I understand the law. I will focus my comments just on this one point, but it is very important because it runs throughout the Bill. I understand why the Government, for party political reasons, have locked themselves into ““shall”” for the number of seats in Parliament. What I do not understand is why they cannot also use ““shall””—the stronger legal version—for issues that they say are important and we all say are important. This is perhaps the best example. My noble friend Lord Kennedy has drawn attention to that discrepancy. The Minister needs to explain why we cannot have a straight change to the Bill here, so that it reads: "““A Boundary Commission shall take into account, if and to such extent as they think fit””," followed by the four factors.