Monday, 7 April 2014

Margo MacDonald Is Irreplaceable - A Feature Of The Additional Members System

Thursday saw the sad news of the death of Margo MacDonald, the Independent Member of the Scottish Parliament for Lothian.

Elected at the first election to the Scottish Parliament in May 1999, as top of the Scottish National Party's regional list for Lothians (and coming second to Labour in Edinburgh South on 23.53% of the vote - a seat which fell to the Liberal Democrats 4 years later), early in 2003 MacDonald parted ways with the SNP, and did something unusual - she decided to stand as an Independent.

Nothing unusual about that - you are used to there being a handful of Independent candidates contesting constituencies in any election - but MacDonald decided to stand as a regional candidate.

The Scottish Parliament uses a form of Additional Members System - basically each region is made up of constituencies and you cast two votes; one for the constituency, and one for a regional list (which can have just one person on it). As we are used to for the House of Commons, in each constituency, the person with the most votes wins (the Single Member Plurality system - often called "First Past The Post").

Then the number of regional votes a party (or list) gets is divided by one more than the number of constituencies it has won - the Scotland Act 1998 calls this the "regional figure". The party (or list) with the highest regional figure is awarded the first regional seat (e.g in Lothians in 1999, the SNP had the highest regional figure at this stage, so MacDonald - as top of their list - became the first of Lothians' 7 regional MSPs).

Then, the regional figure is re-calculated for that party (or list) - if a party had 12,000 votes and 1 constituency, then the regional figure would be 6,000. When it picked up its first regional seat, then the new regional figure would be 4,000 - which is 12,000 divided by 3 (one more than the total number of seats it held at that point). And so on.

The Act doesn't state if a regional figure can be fractional - this method is the d'Hondt system and it is normal with d'Hondt for fractions to be ignored.

When it comes to deciding who the regional MSPs are to be:

Seats for the region which are allocated to a registered political party shall be filled by the persons in the party’s regional list in the order in which they appear in the list

A slight caveat - no-one can be both a regional and a constituency MSP. So, if the next person on the list is a constituency MSP, they are passed over.

There are another couple of technical issues:

An individual candidate already returned as a constituency or regional member shall be disregarded


Once a party’s regional list has been exhausted (by the return of persons included in it as constituency members or by the previous application of subsection (1) or (2)) the party shall be disregarded

"Individual candidate" is the term the Act uses for someone like MacDonald, an Independent standing on a "list" with one name on it. Hence, once she won a regional seat, she was disregarded from the calculation going forward.

There has actually been another case of this. In 1999, Dennis Canavan was an individual candidate in Scotland Central, with more votes than the Liberal Democrats. However, he was elected as the MSP for Falkirk West, the constituency he represented in the House of Commons. As he was a constituency MSP, he was "disregarded" when it came to allocating the regional seats.

If Labour had won/held Falkirk West in 1999, then Canavan would have been the fifth regional MSP elected in Scotland Central (which would have meant that the SNP's Linda Fabiani - currently MSP for East Kilbride - would have failed to be elected).

A party's regional list can become exhausted - the Scottish Parliament (Elections etc.) Order 1999 gives a detailed set of rules relating to Scottish Parliament elections, and one of these states that a list can have at most 12 names on it.

Now, to win 12 seats in a region, a party is looking at around 60 to 65% the regional vote - no party has managed that, although the SNP does have 11 MSPs in Scotland North East. There is no rule saying you have to put all your constituency candidates on the list - if you have candidates contesting safe seats, then it is sensible not to put them on the regional list, to reduce the chances of the list becoming exhausted at this stage (the initial allocation of MSPs). Although you have to be careful not to be too confident - I was in Edinburgh last summer and chatting to a civil servant, who mentioned that one silly thing Labour did was to not put many of its sitting constituency MSPs on regional lists. Result, of course, was that when they lost oodles of central belt seats to the SNP, their long-standing MSPs were out, and in came inexperienced MSPs from the lists.

Not all MSPs are going to be there from one election to the next. MSPs can die, resign, get sent to prison for setting fire to hotel curtains etc. and so they have to be replaced. When it comes to the regional MSPs, then the Act has a set of rules:

(2) If the regional member was returned as an individual candidate, or the vacancy is not filled in accordance with the following provisions, the seat shall remain vacant until the next general election.

That is, of course, very relevant at the moment.

  • (3) If the regional member was returned (under section 8 or this section) from a registered political party’s regional list, the regional returning officer shall notify the Presiding Officer of the name of the person who is to fill the vacancy.
  • (4) He must be a person who -
    • (a) is included in that list, and
    • (b) is willing to serve as a regional member for the region
  • (5) Where more than one person satisfies the conditions in subsection (4), the regional returning officer shall notify the name of whichever of them was higher, or highest, in the list

So, as a rule of thumb, when there is a regional vacancy, then the next person on the list who is willing to serve (and is qualified to serve) is elected. However, if there is no such person, it is left vacant. This is the position caused by MacDonald's death - the Scottish Parliament has only 128 (rather than 129) MSPs, with Lothian only having 6 regional MSPs (rather than 7). Holyrood will be undersized for the next couple of years.

Are there ways that this could be filled (subject to an amendment to the Act)? I can think of 3 possibilities.

The first way goes back to the idea of disregarding an exhausted list - which is only done at the initial post-election allocation, but not when there is a vacancy mid-term. Why not allow disregarding when there is a mid-term vacancy in these circumstances? If Lothian had elected 8 regional MSPs, then the final seat would have gone to the Liberal Democrats. Top of their list was Margaret Smith, elected for Edinburgh West in 1999, re-elected in May 2003 and May 2007 (where the SNP replaced the Conservatives as her main challenger), before being swept away in the SNP victory of May 2011.

If the regional seat entitlement was recalculated - disregarding MacDonald - then this would see Smith returning to Holyrood after a gap of 3 years and the number of Liberal Democrat MSPs reaching the dizzy heights of 6.

The second way is one that exists for the European Parliament, although it has never been used. In Great Britain, Members of the European Parliament are elected on regional lists using d'Hondt, with the rules in the European Parliamentary Elections Act 2002. With regard to vacancies, it simply allows the relevant Secretary of State to draw up rules, which might include by-elections.

And these rules can be found in the European Parliamentary Elections Regulations 2004.

There is a procedure outlined of the Returning Officer contacting the next person on the list on which the MEP was elected and seeing if they will serve, and if they won't/can't, then contacting the next person etc. However, if the MEP who has died/resigned/become disqualified was elected as an "individual candidate", or the Returning Officer is unable to find someone to take the vacancy, then there is a by-election.

Note that I have put this emphasis on the word elected - for some reason there have been a lot of changes in allegiance since the last European elections in June 2009:

MEP Region Date From To
Edward McMillan-Scott Yorkshire & Humberside July 2009 Conservative Independent
March 2010 Independent Liberal Democrat
Nikki Sinclaire West Midlands March 2010 UK Independence Party Independent
David Campbell-Bannerman Eastern England May 2011 UK Independence Party Conservative
Roger Helmer East Midlands March 2012 Conservative UK Independence Party
Andrew Brons Yorkshire & Humberside October 2012 British National Party Independent
February 2013 Independent British Democratic Party
Marta Andreasen South East England February 2013 UK Independence Party Conservative
Mike Nattrass West Midlands September 2013 UK Independence Party Independent
Godfrey Bloom Yorkshire & Humberside September 2013 UK Independence Party Independent

[Italics means that this was a whip withdrawal]

Our MEPs are not a particularly loyal lot - this would be equivalent to 18 MPs losing the whip and choosing to sit as Independents, 9 MPs losing the whip and choosing to then sit for another party, 9 MPs resigning the whip and then choosing to sit for another party, and 27 defections from one party to another.

However, if a defector were to leave the European Parliament, their successor would come from the party they were elected for. There is one example. At the June 1999 European elections, UKIP won a seat in South West England, which went to its then-leader, Michael Holmes. In January 2000 he was voted out as leader, and he followed this in March 2000 by resigning from UKIP. In December 2002, Holmes resigned as an MEP.

Despite having left UKIP, the rules were clear that the vacancy post would be offered to the next person on UKIP's list - Graham Booth.

Since the last European elections, there have been 4 MEPs who have been replaced:

Region/Nation Party Date Retiring MEP New MEP
South East England Green May 2010 Caroline Lucas Keith Taylor
Yorkshire & Humberside Liberal Democrat January/March 2012 Diana Wallis Rebecca Taylor
West Midlands Liberal Democrat February 2012 Liz Lynne Phil Bennion
Northern Ireland Sinn Féin May 2012 Bairbre de Brún Martina Anderson

The Lucas-Taylor replacement was due to Lucas being elected MP for Brighton Pavilion. A 2002 decision by the European Council, stated that:

From the European Parliament elections in 2004, the office of member of the European Parliament shall be incompatible with that of member of a national parliament

The European Communities (Definition of Treaties) (Common Electoral Principles) Order 2004 brought this into British law by interpreting the Council decision as a Treaty for the purposes of the European Communities Act 1972.

There was some controversy over the Wallis-Taylor replacement, as second on the Liberal Democrat list was Wallis' husband, Stewart Arnold. Arnold did decide not to take the seat and it went to Taylor, third on the list.

The de Brún-Anderson replacement is very different. Northern Ireland elects its MEPs by Single Transferable Vote, rather than the d'Hondt system used in Great Britain. The Political Parties & Elections Act 2009 specified rules for filling Northern Ireland MEP vacancies, so that the party's Nominating Officer nominates a successor, or - if the MEP were elected as an Independent - the MEP could nominate a substitute.

Interesting to note that without that, a by-election would have been held to replace de Brún, leading to the situation where Northern Ireland could have 3 Unionist MEPs.

There have been the usual objections that all this is a "buggin's turn" approach. Why not have good old-fashioned by-elections like we have when an MP dies or resigns, rather than have the seat handed to someone who didn't face the electorate?

However, this would not be replacing like-by-like. Imagine if, when Lucas had to resign, those of us in South East England went to the polls to elect a new MEP. We would then be replacing someone chosen by d'Hondt with someone chosen by SMP. There would still be 10 MEPs, but 9 of them would be chosen by one system and 1 by a different system. The rules are clear that a by-election is the last choice option.

In addition, Taylor, Taylor and Bennion did face the electorate - they were there on the lists in 2009, and people voted for one list, aware that the party had the right to allocate the MEPs in accordance with the rules.

And the MPs who take such a stand that legislators should be directly-elected are clearly unaware that at the other end of the Palace of Westminster is a chamber full of men and women wearing ermine robes prancing around red benches. The stance I take when engaging with UKIP supporters in the letters pages of the local paper is that you can't pick and choose which democratic deficits you object to - don't use supposed Brussels democratic deficits as an argument for leaving the EU while defending Westminster democratic deficits as traditions which make this country what it is.

MacDonald's seat could be filled by a by-election as a last resort, if there were relevant legislation in place. One complaint about AMS is that it creates two types of MSPs - the constituency and regional ones. A by-election would create a third type, somewhere between these. On one hand, this would be an MSP who represents the Lothian region, but on the other hand, this would be a sort-of super-constituency MSP, elected across the whole Lothian region on the system used to elect constituency MSPs.

Is there not an issue that a by-election would favour a major party? After all, if Lucas, Wallis and Lynne had to be replaced by by-elections, it would be unlikely that the Greens or Liberal Democrats would win the seat.

To answer this, we need to cross the Irish Sea and look at elections to the Dáil Éireann, where 166 Teachtaí Dála are elected by the Single Transferable Vote in constituencies which return 3, 4 or 5 members. At least they do at the general elections. With by-elections, a new Teachta Dála will be elected by the Alternative Vote.

While AV is technically STV in a single-member constituency, it is different as the quota is higher - one vote more than half the vote, compared to one vote more than a quarter (for 3-member constituencies), one fifth (for 4-member constituencies) or one sixth (for 5-member constituencies) of the vote. In a by-election there is a higher hurdle to getting elected.

Since the last Dáil election of February 2011, which led to a Fine Gael/Labour coalition Government, there have been 2 by-elections:

Constituency Largest party* Date Former TD Party New TD Party
Dublin West Labour October 2011 Brian Lenihan Fianna Fáil Patrick Nulty Labour
Meath East Fine Gael March 2013 Shane McEntee Fine Gael Helen McEntee Fine Gael

[* The party that received the most first preference votes]

What it seems is that smaller parties might be able to win under STV, but with an AV by-election, the seat goes to the largest party in the constituency. But we need to note that the Dublin West by-election occurred while the Government was in its early days and coincided with Labour's Michael Higgins being elected President.

Look at the by-elections in the Dáil elected in May 2007, which led to a Fianna Fáil/Progressive Democrat/Green coalition Government. The by-elections for that were:

Constituency Largest party Date Former TD Party New TD Party
Dublin South Fianna Fáil June 2009 Séamus Brennan Fianna Fáil George Lee Fine Gael
Dublin Central Fianna Fáil June 2009 Tony Gregory Independent Maureen O'Sullivan Independent
Donegal South West Fianna Fáil November 2010 Pat Gallagher Fianna Fáil Pearse Doherty Sinn Féin

In all 3 seats, Fianna Fáil had been the largest party - but this did not guarantee them by-election victory. O'Sullivan had been Gregory's election agent (shades of Dai Davies' victory in the Blaenau Gwent by-election).

Interesting that with an unpopular Government (and looking at the drubbing they got in 2011, imagine if in the UK, Labour ended up the largest party, UKIP second, with the Conservatives and Greens battling for third place and the Liberal Democrats wiped out. Although, it is looking likely that when you wake up on Monday, 26 May, you won't have to imagine that), voters don't automatically elect one of the two main Opposition parties.

So, if a by-election were held to replace MacDonald, it could go to a minor party or to an Independent who was closely associated with her.

There is a third way that a vacancy could be filled - and I have already referred to it when I looked at Anderson becoming an MEP. That is the method of co-option.

The Northern Ireland Act 1998 said that when it came to seats in the Northern Ireland Assembly falling vacant, it was up to the Northern Ireland Secretary to determine the method of filling it, whether by by-elections, substitutions "or such other method of filling vacancies as the Secretary of State thinks fit."

The original guidance was given in the New Northern Ireland Assembly (Elections) Order 1998 (this being the era of New Labour, New Britain), which requires steps to be taken to find the up-to-6 substitutes that the Member of the Legislative Assembly named, and if that fails, a by-election to take place.

Sort-of reasonable. The names of substitutes have to be provided when a candidate to be an MLA hands in their nomination papers. So, when you cast your first, second, third etc. preference votes, you are really casting these votes for lists.

The Northern Ireland Assembly (Elections) Order 2001 simply reiterated the rules for substitutes and by-elections.

However, the rules changed, with the Northern Ireland Assembly (Elections) (Amendment) Order 2009 allowed a party's Nominating Officer to propose a substitute (Independent candidates could still provide their own list).

This puts way too much power in the hands of parties, and creates the situation where someone can become an MLA (or MEP) without facing the electorate, without being a candidate or a name on a list that is available at election time.

One curious thing about MacDonald is that she didn't choose any replacement. She could have formed her own small party and run a Lothian list with a second name on it, to take her place in the event of her death. Many one-person bands in the House of Commons (Lincoln Democratic Labour Association, Ulster Popular Unionist Party, Kidderminster Hospital & Health Concern, People's Voice for Blaenau Gwent) have ensured they have had local government representation in the relevant area. But there was no attempt from her to get supporters to stand for Edinburgh City Council or West Lothian Council and form small Margonaut groupings in them. She was totally independent.

As the law stands, her seat is vacant until May 2016. But maybe it is time for a change in the law. Not just for Scotland - I hope that one day the House of Commons switches to AMS, and the question of what happens in these situations would need to be legislated for.

I think a combination of the first and third possibilities would be the best solution:

  • Allow Independent regional candidates to draw up small lists of substitutes at the time they submit their nomination papers. These would not be "party lists" in the conventional sense - i.e. once that candidate is elected as a regional MSP, then the "regional figure" for that "list" is zero. But if the regional MSP doesn't complete their term of office, then the first person on the list is invited to take the vacant place.
  • If that fails to see a replacement chosen (e.g. the regional MSP did not draw up a list, or no-one on the list is willing and able to serve) then recalcuate the entitlement to regional seats, discounting that MSP. In this case, as shown above, this would see MacDonald's seat going to the Liberal Democrats

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