The London 5% Rule

One thing I want to look at is the Additional Members System - as I noted some time back, about 25% of the electorate use AMS, namely those in Greater London, Wales and Scotland.

Unlike the devolved legislatures in Scotland and Wales, the Greater London Authority Act 1999 introduced a 5% rule, so that basically no party list (and "party list" can mean an Independent candidate running on a list with just their name on) can win any top-up seats.

This might follow the practice of the German Bundestag But is actually more restrictive. In Germany a party that wins 3 constituencies is exempt from the 5% rule. For example, at the September 2002 election, the Party of Democratic Socialism won 2 constituencies (both in Berlin) and only 3.99% of the vote, so only had 2 MPs. Interestingly, if the PDS has won a third constituency, then they would have been entitled to 24 or 25 MPs, with a reduction in MPs for other parties. That election saw the Social Democrat/Green coalition re-elected with a majority of 9 - if the PDS had won that third constituency, this majority would have vanished and the Social Democrats would have had to look to the Christian Democratic Union/Christian Social Union to form a "grand coalition".

In Germany the 5% rule is effective at a national level, not at the Land level. Foe example, the Free Democrats fell below 5% in Bavaria (but won 4 list seats there); while the PDS won 11.36% of the vote in Berlin and failed to win any list seats (ahead of the Free Democrats on 6.62% and 2 list seats), 16.32% in Mecklenburg & West Pomeria (ahead of the Free Democrats on 5.43% and 1 list seat and the Greens on 3.51%, who failed to win any of the 3 available seats), 17.24% in Brandenburg (ahead of the Free Democrats on 5.81% and the Greens on 4.50% - both of whom won 1 list seat), 14.41% in Saxony & Anhalt (ahead of the Free Democrats on 7.57% and the Greens on 3.40% - both of whom won 1 list seat), 16.95% in Thurnigia (ahead of the Free Democrats on 5.86% and the Greens on 4.26% - both of whom won 1 list seat), and 16.17% in Saxony (ahead of the Free Democrats on 7.26% and the Greens on 4.62% - both of which won 2 list seats).

So, what we see in Germany is some parties falling below 5% in a Land and being represented, while others in the same Land can be above 5% but get no representation.

Although I appreciate the reason why - the old Weimar Republic did not use a threshhold, and in May 1928, the National Socialist German Workers' Party won 12 of the 491 seats available on just 2.60% of the vote, and we all know what happened from there.

So, like Germany, but unlike Wales and Scotland, London imposes a threshhold. How has this impacted the result?

The first election was May 2000:

Party	London vote	Constituencies	Additional	Total	Additional (no threshhold)	Total (no threshhold)
Labour	30.30%	6	3	9	3	9
Conservative	28.99%	8	1	9	0	8
Liberal Democrat	14.80%	0	4	4	4	4
Green	11.08%	0	3	3	3	3
Christian People's Alliance	3.33%	0	0	0	1	1

That 5% rule meant that the Conservatives' Eric Ollerenshaw - now MP for Lancaster & Fleetwood - obtained the last seat instead of the CPA's Ram Gidoomal. As Ollerenshaw went on to beocme leader of the Conservative group, that threshhold made the difference there.

I'm not suggesting that the CPA would have become a major party, but the absence of the threshhold would have given it a toehold in politics, perhaps enough of a presence so that Gidoomal could hold his seat and maybe there would be a CPA Member of the European Parliament for Greater London, taking his or her seat alongside the Conservatives and Ulster Unionist Party in the European People's Party/European Democrats group.

This election - the last major British election of the 20th century - strikes me as being not just from a different millennium, but from a different era. Go back then, and you would expect the Greens - not the UK Independence Party (who came seventh with 2.05% of the vote) - to emerge as England's fourth party. You would look at Northern Ireland and see the setting up of devolution and feel that the Democratic Unionist Party were on the wrong side of history and the UUP had been vindicated and would remain doninant in unionism. You would look at Scotland and think that yes, the Scottish National Party is Scotland's second party, but the idea of the SNP producing a First Minister was a pipe dream, and as for the idea the SNP would win an overall majority - lie down in a darkened room until you get such silly ideas out of your head.

And yes, this experimenting with AMS for devolved legislatures could lead to electoral reform for the House of Commons, but if a hung Parliament emerged, then obviously there would be a Labour/Liberal Democrat coalition.

The next election was postponed to June 2004 to coincide with the European ones:

Party	London vote	European vote	Constituencies	Additional	Total	Additional (no threshhold)	Total (no threshhold)
Conservative	28.49%	26.78%	9	0	9	0	9
Labour	25.00%	24.75%	5	2	7	1	6
Liberal Democrat	16.88%	15.32%	0	5	5	4	4
Green	8.57%	8.43%	0	2	2	2	2
UK Independence Party	8.37%	12.34%	0	2	2	2	2
British National Party	4.82%	4.04%	0	0	0	1	1
Respect - The Unity Coalition	4.67%	4.84%	0	0	0	1	1

In italics I have put the share of the vote within Greater London that the parties achieved at the simultaneous European elections.

The 5% rule meant that Labour's Murad Qureshi (who is still a member of the Greater London Assembly) and the Liberal Democrats' Dee Doocey (who is now a member of the House of Lords) would not have been elected, and in their place would have been the BNP's Jason Douglas and Respect's Lindsay German. However, top of the Liberal Democrat list was Lynne Featherstone - now Under-Secretary of State at the Department for International Development - who resigned from the Assembly in May 2005 when she was elected as MP for Hornsey & Wood Green, and in this scenario she would have been replaced by Doocey, fifth on the list, rather than by Greg Pope, sixth on the list.

Coming eighth in London was the CPA on just 2.93%. Of course, if the threshhold was not in place and Gidoomal was heading the CPA list as a sitting Assembly member, then they could have done better.

So 2004 saw changes from just 4 years earlier. In the European elections, across the United Kingdom as a whole, the Conservatives obtained 25.01% of the vote, and Labour 21.16% - combined this is a lower share of the vote than Labour obtained in the February 1950, October 1951 (when it lost), May 1955 (when it lost) and March 1966 general elections, abnd a lower share of the vote than the Conservatives obtained in the 1950 (which they lost), 1951, 1955, October 1959 and June 1970 general elections. UKIP rose to third place (in terms of votes) and joint third place with the Liberal Democrats (in terms of seats).

The next election was May 2008:

Party	London vote	Constituencies	Additional	Total	Additional (no threshhold)	Total (no threshhold)
Conservative	34.63%	8	3	11	3	11
Labour	27.58%	6	2	8	2	8
Liberal Democrat	11.41%	0	3	3	3	3
Green	8.43%	0	2	2	2	2
British National Party	5.42%	0	1	1	1	1

With the sixth placed party being CPA/The Christian Party on 2.91%, the 5% threshhold had no impact.

And this brings us to the latest election, that of May 2012:

Party	London vote	Constituencies	Additional	Total	Additional (no threshhold)	Total (no threshhold)
Labour	41.14%	8	4	12	4	12
Conservative	31.99%	6	3	9	3	9
Green	8.54%	0	2	2	2	2
Liberal Democrat	6.79%	0	2	2	1	1
UK Independence Party	4.52%	0	0	0	1	1

So, in this case the threshhold meant that the Liberal Democrats' Stephen Knight won the last seat, which would otherwise have gone to UKIP's Steven Woolfe.

But why have a threshhold at all? The debate in the House of Commons in May 1999 - which goes over several pages (1, 2, 3 , 4. and 5) - looked at the arguments, but, of course, Labour's massive parliamentary majority meant it got its way.

Nick Raynsford, the Labour MP for Greenwich & Woolwich, who at the time of the debate was Under-Secretary of State at the Department for the Environment, Transport & Regional Affairs, justifies it by saying:

Members would recognise the real concern about people who, for whatever reason, seek to stir up racial hatred or hatred against any section of the community. This is not a matter that any political party can take lightly. We consider that, in the context of the proportional electoral system that we propose for the assembly, a threshold is a necessary safeguard against the possibility of extremist parties or candidates gaining a toehold in our democratic processes having won only a very small proportion of the vote. Once established, extremists and their views could begin to receive a disproportionate amount of publicity, and the corrosive effect of those views on local communities would in turn begin to have a disproportionate effect.

Of course, no threshold can be an absolute safeguard against parties or candidates who represent extreme views. In the unlikely circumstances of such a candidate winning more than 5 per cent of the vote, that candidate would win a London member seat. But if we assume a 50 per cent turnout, that would require a party or individual candidate to win approximately 125,000 votes from across the whole of London.

As members of the Committee pointed out, there are significant drawbacks attached to the setting of such thresholds in that they will not discriminate between the good, the bad and the ugly of minority opinion. Consequently, in seeking to prevent the bad and the ugly, we run the risk of denying a seat to parties or individuals pursuing worthy or worthwhile minority interests, who may also fail to exceed the threshold and who might otherwise have won a seat. We must, therefore, ask whether that is a price worth paying. I believe that it is.

A threshold--for all its imperfections--is a bulwark intended to deny a platform to those who, among other things, peddle race hatred, who spread fear among our citizens and seek to undermine our democratic system. That is why we have decided that this measure must be included in the Bill.

So, a threshhold is there to block parties which hold extremist views, and blocking other parties is a price worth paying. But is denying the CPA, UKIP and Respect at various points a price worth paying in order to prevent the BNP getting elected - which they managed to do in 2008?

Richard Ottaway, the Conservative MP for Croydon South, who at the time was the Shadow Minister for London, comments that:

While most people talk about this as a matter of groups on the extreme right, most civil disobedience in London in recent years has been from the extreme left. I am thinking in particular of the miners' strike and the poll tax rioters.

With some reservations, we support the amendment, but the Minister must answer two questions. First, he must explain to those who still have doubts why someone's extreme views are abhorrent if he gets 4.5 per cent of the vote but acceptable at 5.5 per cent Secondly, can he confirm that a repeat of the Greater London council election result of 1977, when the British National party polled 5.3 per cent, would mean that it would get someone elected to the new assembly? Where it put up candidates in 1994, the BNP polled 18.2 per cent of the vote, and in 1998, 7 per cent So it is possible that extreme candidates will be elected to the authority despite the amendment.

Quite prophetic - why are the BNP's views abhorrent in 2004 but acceptable in 2008?

Simon Hughes, the Liberal Democrat deputy leader and MP for Bermondsey & Old Southwark, makes the obvious point that:

People should be able to stand for election and express their views within the law. If they break the law--by inciting racial hatred, for example--they should be prosecuted and, if convicted, banned from taking part in the electoral process.

And John Bercow, the MP for Buckingham and Speaker of the House of Commons, who at the time was a Conservative MP, notes:

Would it not be more honest if those who advocated that the threshold should be set deliberately at whatever level is necessary to prevent the election of extremist candidates simply advocated the disqualification of such candidates from standing?

Precisely - if a Government wants to stop a party being elected, then the honest thing to do is the messy business of proscribing them. But that would be awkward in a liberal democratic society, although it might produce good newspaper headlines from those who like their leaders to be authoritarian (and of course, see being authoritarian and ignoring liberal principles as being "tough" and "acting in the interests of the majority").

Ken Livingstone, at the time Labour MP for Brent East, who went on to be elected as Mayor of London twice (as an Independent in May 2000 and as Labour in June 2004), makes the observation that:

We should look at the narrow point at issue in terms of numbers of votes cast. We are introducing a threshold which means that a fascist party will have to get 5 per cent of the votes to qualify for a seat. We know from the 1977 GLC election, when the British National party contested all seats across London and got 5.3 per cent of the vote, that that is an achievable objective for a fascist party in this country. If we did not impose a threshold, a party would still need to win 4 per cent of the vote to get a seat. Given 25 seats, it would need to get 4 per cent, unless a vast number of minor parties got 2 or 3 per cent each. So we are drawing a small margin of difference.

Across Europe, it is not unusual now for fascist parties to get 15 per cent of the vote. There have been breakthroughs in France and Austria. To guarantee to keep the fascists out for all time, we would most probably have to set the threshold at 15 per cent or more and that would also eliminate the Liberal Democrats in many areas. When I first entered local government in London, the Liberals did not get 5 per cent in the borough council elections Londonwide. So we are working ourselves up over the wrong issue.

It worries me that people could use candidacy as a platform to propagate their racist views. We should consider what to do to prevent that. My fear is about what may have motivated the young man who has been arrested for the bombings. He was not linked into an organised fascist party, but the contagion of fascist views had reached him. What worries me most is not the threshold--whether the 4 per cent without a bar or the 5 per cent bar that we are introducing--but the fact that the new election for mayor could give a fascist candidate access to broadcasts and a big distribution of literature which, while with clever lawyers working on it may narrowly stay within the race relations law, would pander to racism, homophobia and bigotry and help to stir up the sort of passions that have led to deaths on the streets of London in the past few days.

The thing is, as Livingstone is getting at, parties and individuals standing for election get those free mailshots, regardless of views. Throughout the debate, Labour MPs mentioned the "oxygen of publicity" logic - namely that back in the 1980s, the then Conservative Prime Minister, Margaret Thatcher, banned broadcasters from broadcasting speeches by certain individuals to deny them the "oxygen of publicity". The leading person affected was the leader of Sinn Féin, Gerry Adams.

But Adams was an elected MP for Belfast West. And that didn't alter. Thatcher did not introduce legislation to remove him from his seat or to ban him from being elected. She let the democratic process take its course, however objectionable his views. That is a far cry from saying "we must introduce laws to stop these people getting elected".

Moreover, it doesn't matter whether you get 1 vote in the election or 99.99% - you get the "oxygen of publicity" of that mailshot. So, introducing a threshhold using the "oxygen of publicity" argument is deeply flawed.

What about the concern that without the threshhold, an extremist party is going to hold the "balance of power"? OK, so in a 25-member Assembly, there are 12 members on each side and extremist, who sneaked in with less than 5% of the vote, somehow holds the balance of power, and that would be OK if they won more than 5% of the vote. Er, sorry, don't get it.

And how realistic is it that a major party would do a deal with an extremint party to form a majority? Take 2008. You could have Conservative/Liberal Democrat (14 seats), or Labour/Liberal Democrat/Green (13 seats). The presence of the BNP isn't going to stop the Liberal Democrats being the party holding the balance of power.

But why would it be wrong for the BNP to hold the balance of power in 2004 but not in 2008?

Moreover, just suppose that in the next few months there is a spate of by-elections in Conservative seats, and in each one an extremist wins. And it gets to the stage that the Conservative/Liberal Democrat government loses its majority. There are three options for the Government:

• Sit down with the leader of the extremists and discuss Cabinet posts and legislation
• Sit down with Labour and discuss common ground which would involve ensuring that (heavily modified, of course) legislation would get through
• Sit down with certain Labour backbench MPs and MPs from mainstream minor parties to hold discussions on a Bill-by-Bill basis

If we look at Germany, we see that at times a Social Democrat/Christian Democrat "grand coalition" is the solution. And we should trust the voters, and also trust the politicians to ensure that any extremists who get elected are frozen out of any cross-party discussions.