§ Mr. Mike O'Brien
I beg to move amendment No. 6, in page 94, line 9, at end insert—'Powers1A. The Commission may do anything (except borrow money) which is calculated to facilitate, or is incidental or conducive to, the carrying out of any of their functions.'.As a body corporate, the Electoral Commission will be able to do anything that is incidental to the carrying out of its functions. That principle has been established by case law dating back to 1880. The issue is not in serious doubt, but we think it sensible to have a clear statement of the position in the Bill. New paragraph 1A has numerous precedents in other legislation establishing bodies corporate.
§ Sir George Young (North-West Hampshire)
I want to press the Minister a little further. The amendment is extremely wide and might have brought a smile to the lips of King Henry VIII. It gives the commission virtual carte blanche. I note that the Treasury, which never sleeps, managed to get "except borrow money" inserted into the amendment before it was published.
What will the amendment provide that the commission cannot do under the Bill as drafted? Clause 8 allows it to do certain things but only "at the request of'; clause 3 allows it to do other things "with the agreement of'; clause 5 bans it from doing certain other things; clause 11 adds further parameters; and then along comes the amendment and makes much of the rest of the Bill wholly redundant by allowing it to do virtually anything to facilitate the carrying out of its functions. If such broad provision is required, can it be restricted in some way so as not to conflict with the parameters laid down elsewhere in the Bill?
§ Mr. Maclean
I am concerned about the amendment for several reasons, the first of which is its location in the Bill. It is my experience that when such a body is set up, its functions and powers are described in various clauses and then there is a general subsection saying something like, "Notwithstanding any of the above, the Commission can exercise any other powers, duties or functions that are incidental to its purpose", but here we have a free-standing Henry VIII power stuck in a schedule.
626 The schedule says:The Commission shall not be regarded—.
- (a) as the servant or agent of the Crown, or
- (b) as enjoying any status, immunity or privilege of the Crown."The property of the Commission shall not be regarded as property of, or property held on behalf of the Crown.Why should that be followed by such a broad power as the amendment will bestow? It is rather scary that the Government are taking such a power in a mere schedule.
There could have been better places to put such a power. Clauses 4 and 5 describe the commission's functions, and clause 7 listsPowers exercisable only on Commission recommendation.Other parts of the Bill also describe the commission's proposed powers and functions. It might have been more appropriate to attach a general catch-all.
At the risk of being rude, I hope that the Minister's explanation will be slightly better than his previous one. It will be not satisfactory for him to say, "The Neill committee said one thing, but the right hon. Member for Bromley and Chislehurst (Mr. Forth) said another, and I prefer the opinion of Lord Neill." It is this Chamber that is making the legislation and I hope that the Minister will take seriously the views of all right hon. and hon. Members and not depend on someone else for his judgment.
The placing of the amendment is odd, wrong and somewhat sinister, but I also find its terms unacceptable. The Minister will doubtless have some precedent before him—unless his officials have gone downhill radically in the past three years, and I doubt that—showing that the Home Office put through some legislation between 1993 and 1997 that contained a clause roughly similar to the amendment. At the time, I may have advanced impeccable arguments to support the case that the inclusion of general powers such as those contained in amendment No. 6, was appropriate—in the appropriate place, of course—in certain legislation. However, I find the phrasewhich is calculated to facilitatevery worrying.
I am certain that I must have put through legislation that allowed an organisation to do anything that was incidental to, or conducive to, the carrying out of its functions, but the amendment contains that new phrase. Neither my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) nor I would have tolerated a word such as "facilitate" in legislation, and indeed the phrase would make the powers of the commission much wider.
While I can see that certain items might be incidental or conducive to the carrying out of the commission's functions, who will judge whether they are "calculated to facilitate"? If the commissioners came to an irrational decision—about something which they thought was calculated to facilitate their functions—their irrationality would not mean that they would fail a judicial review, provided they could argue that the decision was "calculated to facilitate", no matter how illogical, irrational or off the wall it might have been.
What is the precedent for the phrase? It is the widest such phraseology that I have seen in legislation and will give an already wide-ranging power an even wider range. 627 Will its insertion make it much more difficult for people to win a judicial review against the commissioners, because they could say that something was "calculated to facilitate" even though 99 people out of 100 might disagree? The commissioners' calculation may have been silly, wrong, naive or foolish, but they could still claim that it was "calculated to facilitate". When was the phrase last used and what is the justification for its use? Although I am concerned about the location of the amendment, I would be happy to accept it if the phrase were removed.
§ Sir Michael Spicer (West Worcestershire)
Like my right hon. Friends the Members for North-West Hampshire (Sir G. Young) and for Penrith and The Border (Mr. Maclean), I am mystified by the amendment. It would give unlimited powers to the commission to carry out the functions as specified in the Bill, but it begs as many questions as it answers. The more one considers the functions and powers of the commission as defined in the Bill, the more of a dog's breakfast it seems.
Are the powers of the commission purely advisory, as defined in clause 5, so that while the Home Secretary must listen to its advice, he need take no particular account of it? The clause lists the factors that the commission must keep under review, but under clause 7, for example, the powers are more executive in nature. That gives rise to the question: what is the nature of the commission's powers?
The Bill is extremely muddled about functions and the commission's powers. The best that one can say is that it is permissive. Is the commission to have any part in the wording of a referendum? Is it to have any part in saying how far the Government may become involved, and at what point their involvement should cease, during the run-up to a referendum? Is there to be minimum threshold voting, for example, and, if so, is the commission to be involved in that? The Bill is completely silent on those vital matters, yet the amendment, which purports to be clear, begs more questions than it resolves. I hope that the Minister can explain the purpose of the amendment, other than just to draw our attention to these matters, and tell us what the commission's functions will be. The Bill refers to functions—it is up to the Minister to be much clearer as to what they will be.
§ Mr. Forth
The debate is in danger of getting off to a bad start. The Minister must not presume the good will of the Committee; he must not simply stand up and say, "There are precedents for this, so it is all right." Precedent, of course, plays a powerful and important part in our constitutional and judicial arrangements. However, simply to say that something has been done before, so the Committee must accept it, is not proper treatment of the Committee.
If I may give the Minister a bit of friendly advice, he might find that proceedings would go more quickly if he did the Committee the honour of giving a proper explanation up-front. That might even make a debate otiose sometimes. Who knows? The hon. Gentleman might like to give it a try. If he gave the Committee a full explanation up-front of one or two of the following groups 628 of amendments, he might find that matters progress that little bit more quickly. I am trying to be helpful to him, and I am sure that he will, as ever, give the matter some thought.
Nor should the Minister imagine—and I am trying to be helpful here as well—that it is good enough simply to say to the Committee that as someone called Neill says that this should be the case, it must be accepted. This is the legislative process—this Committee and this House of Commons. Of course, we are entitled—some might say obliged—to take advice from many different sources. However, simply to say that an outside body has said something and that the Committee effectively has no choice but to accept it is not a compelling argument. We must consider what someone called Neill said, but that is all we need do. If the Committee believes that what Neill said is not correct, it must feel free to reject that view—as the Minister seems to do from time to time, when it suits him. So let us not have any of this business about something being pre-ordained, so that the Committee need only skip through this formally and accept it. We surely will have none of that.
My right hon. and hon. Friends have identified the difficulty in amendment No. 6. My worries are not simply theirs, although I share them, as I share the amusement of my right hon. Friend the Member for North-West Hampshire (Sir G. Young), who noted that the commission can do everything except borrow money. That raises some interesting questions about funding, to which we may have to return in a future debate, possible on the schedule as a whole. We must satisfy ourselves that funding is available to the commission so that it can fully discharge its responsibilities—wide and varied though they are—but not by borrowing money, which is what the amendment says. We already have a clue about the Government's attitude, albeit via the Treasury, to the way in which the provision will work.
The amendment includes the words "may do anything", the type of very wide provision that always sets our nerves a-tingling. Another of the amendment's intriguing phrases is "calculated to facilitate". Calculated by whom? The amendment does not tell us. It may imply that the commission will make the calculation, but it is not impossible that it could be made by the Secretary of State, or by the commission collegiately, or by the chairman, or by individual commissioners. We are not told who will make the important calculation about whether "anything" will "facilitate, or" beincidental or conducive to, the carrying out of any of their functions.The provision is somewhat circular: the more one considers it, the less one understands it, except that it is a catch-all with no limits. We may feel that if the body is to discharge its responsibilities properly, it must be totally untrammelled. That is what the amendment proposes. However, we should do that only with our eyes wide open. We are becoming involved in the very nature of the political process, political parties, electoral provisions and so forth. It is a large step, therefore, to say that the body to which we are giving wide responsibilities should have no limit to its remit, powers and scope.
Some hon. Members may feel that it would be wiser to draw some boundaries around what the commission can do, at least in its early stages. The Government's approach to these matters worries me because they offer none of 629 the pilot studies of which we, in the previous Administration, used to be fond. [Interruption.] Some people may find that approach amusing, but the more I dealt with such schemes, the fonder I grew of them. They enabled one to experiment, analyse and assess matters before determining whether they had worked out as one had hoped that they would.
The Government often seem to plunge wholeheartedly and experimentally into our electoral and political arrangements without providing any escape clause or any means by which they can be hauled back, except through further primary legislation. Here we go again. We are faced with an entirely new, powerful and influential body, but instead of exercising caution, we are heading for the other extreme. Not only will we trust it totally as we take a leap in the dark, but we will allow it to do anything that it deems fit to allow it to meet the wide responsibilities that we are giving it. I wonder whether that is wise.
I hope that the Minister will take my helpful advice. On this occasion, he will have to offer an explanation at the end of our short debate—[Interruption.] It is a short debate; by some of our standards, it has hardly begun. We have suggested enough concern and anxiety—
§ Mr. Forth
I speak only for myself; my hon. Friend need not fear that I seek to curtail debate; he should know me better than that. We are merely clearing our throats at this stage.
However, so that we can avoid Divisions and suchlike—surely we want to avoid them at this stage, although they may come later—I hope that the Minister may feel it necessary to give us a full explanation rather than the trite and patronising remarks that he made earlier. I have expressed my anxieties, and my hon. Friend is about to express his. I hope that the Minister will satisfy us so that we may make modest progress.
§ Mr. Shepherd
I am grateful to my right hon. and hon. Friends who have spoken so far in the debate, because the amendment is curious. On Second Reading, we discussed the powers and duties of the commissioner. However, between Second Reading and Committee, the Government had a rethink and decided that perhaps the commissioners did not have enough powers to discharge their functions. The Government decided to insert an amendment.
I shall come to the words of the amendment later, but, as my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) pointed out, it has not been inserted in the most obvious place. One would have expected to find it in the early clauses. Perhaps this is the paranoia of opposition, but why insert such a wide and sweeping power—one that almost rolls up all the other powers of the commission—at the end of the first paragraph of schedule 1?
As my right hon. Friend correctly pointed out, that paragraph deals with the status of the commission—its relationship to the Crown, its immunity and the question of property. Why do the Government want to include something about powers in that paragraph? It seems an odd place to insert such profound and important powers, especially because, on Second Reading, we discussed a Bill that excluded them.
630 As my right hon. Friends the Members for Penrith and The Border and for Bromley and Chislehurst (Mr. Forth) have pointed out, the amendment states:The Commission may do anything (except borrow money) which is calculated to facilitate".Our attention has been drawn to that point. I should have been grateful to the Minister if he had begun by explaining why that phrase was deemed appropriate. Is "intended" the word that is meant? Do the Government mean that the commission may do anything—except borrow money—that is "intended to facilitate"? Do we need such a qualifying verb? Should the provision readwhich facilitates the carrying out of any of its functions"?I am being cautious, because I know that such matters are often important in legal terms—for the purposes of judicial review or any other means by which we tackle what we judge to be an unfair decision of the commissioners. However, my right hon. and hon. Friends have opened up that line of questioning, so I have no doubt that the Minister will address those points.
After 20 years as a Member of this place, I am nervous about conferring on the Government or on any body set up under the authority of Parliament, the powers implied by words such as "incidental or conducive to". I have no idea what the Minister understands by such concepts in the context of the measure.
The powers of the commission are made formidable by the amendment. It is wrongly placed and not easy to understand—at least on first reading, although I understand the word "conducive"; it means "to be helpful to". Why is the amendment to be inserted in this part of the measure? What is the meaning of the wordswhich is calculated to facilitate"?Although the words look simple, what is the meaning ofis incidental or conducive to"?Why was it necessary—in the short time between Second Reading and the Committee—to introduce such a new and formidable provision?
§ Mr. Mike O'Brien
There is nothing frightening, sinister or formidable about this minor—even mundane—little amendment. The incidental powers that it will confer will be powers to enter into contracts; for example, to provide research facilities for the commission or to obtain services, such as secretarial back-up when its secretaries are ill. It is fairly mundane stuff. The provision will enable the commission to dispose of property, perhaps to buy new office space.
What is important is that the provision does not extend any of the commission's functions. They are circumscribed by the other clauses. The powers conferred by the amendment are limited to the carrying out of the commission's functions as set out in the Bill. It does not extend the commission's functions any further. Therefore, when I describe the amendment as mundane, I really mean that.
The right hon. Member for Penrith and The Border (Mr. Maclean) asked where the amendment came from and whether I had been given any precedents for such wording. I quote directly from an Act that he voted for and supported, from which we took the wording. It is a 631 provision relating to the Local Government Commission in the Local Government Act 1992. Paragraph 4(1) of schedule 2 of that Act says:Without prejudice to any powers exercisable apart from this paragraph, the Commission shall have power to do anything (whether or not involving the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the carrying out of any of its functions.We thought that that essentially meant that the commission shall have the power to do anything which is calculated to facilitate, or is conducive or incidental to, the carrying out of any of its functions, and we used that as a precedent.
§ Sir George Young
I appreciate that the Minister is trying to be helpful, but did that precedent have something that specifically excluded the extension of the powers to other matters?
§ Mr. O'Brien
It is the case that the wordsWithout prejudice to any powers exercisable apart from this paragraphappear at the start of that paragraph, but—and I am conscious that those who may have to interpret the legislation will read the debate—it is not argued that the amendment will extend any functional role of the commission at all.
The right hon. Member for Penrith and The Border asked whether the amendment was really necessary, whether it was required to extend what the commission could do anyway, and what it extended that to. The answer is that, no, the amendment is not necessary, in the sense that case law dating back to 1880 makes it clear that a public authority such as the Electoral Commission would in any event have the facility to do anything incidental to its functions.
We considered whether we could be certain how the wording in the amendment would be interpreted and decided to make the provision explicit. When the Local Government Commission—in many ways a very good model—was set up, such explicit provision was included in the legislation.
The amendment is fairly minor. The hon. Member for Aldridge-Brownhills (Mr. Shepherd) asked why the provision was to be incorporated in the schedule. My answer is that, essentially, it is fairly minor and does not deserve a prominent place in an early part of the Bill. It is entirely incidental to the broader powers.
The principles in case law were established way back in 1880, so there is little more that I can say about the amendment. We are merely trying to help those who may, in due course, have to run the commission, by letting them know that they have powers to enter into contracts and to sell and buy buildings, and that they need not go running to the Home Office or another Government Department to do so. The amendment just makes it clear in the schedule that the commission has those incidental powers. It does not extend the functions of the commission in any way. It is no Henry VIII clause, or anything like it. I hope that hon. Members will be reassured by the fact that the record of the debate will be read by those who, in due course, have to interpret the words of the provision.
§ Mr. Maclean
I welcome the tone that the Minister has adopted in his response. I appreciate that he can quote 632 precedents for the use of such wording, but am I right in saying that when it has been used previously it has always followed a list of things, such as, "The commission may buy office furniture, rent offices, hire staff, bring in a tea lady" and so on? Is there any precedent for its use as a totally free-standing phrase, without any of the preceding list?
§ Mr. O'Brien
Just before the provision for incidental powers in the Local Government Act 1992, there is a reference to staff, remuneration, pensions and other things. I am informed that there is a precedent and that other legislation carries similar provisions. I can ask my officials to provide information to the right hon. Gentleman, so that he can examine the legislation in which such minor, mundane and incidental provisions appear. I am conscious in using those words that they will be considered when the provision's meaning is interpreted.
§ Mr. Shepherd
I wish to make a simple point in the light of the Minister's remark that such provisions already exist. Have the courts ever interpreted or examined this formula? Has the matter ever come before them?
§ Mr. O'Brien
I cannot quote the case law at this point. However, I suspect that the courts have not so much considered whether the law was valid, but merely whether public authorities have the right to enter contracts. Since 1880, case law has established the principle that we are adding to the schedule merely for the sake of clarity. Although I do not know whether there has been interpretation of the 1992 Act, I suspect that a fair amount of case law exists, given the quantity of litigation that goes on in local government. I can ask my officials to find the case law if the hon. Gentleman so wishes. If he still has concerns, he can speak to me about them.
§ Amendment agreed to.
§ Mr. Stunell
I beg to move amendment No. 1, in page 94, line 20, at end insert—'(4A) An Electoral Commissioner shall cease to hold office if he accepts nomination for office on any elected public body.'.
§ The Chairman
With this it will be convenient to discuss the following amendments: No. 2, in page 94, line 20, at end insert—'(4B) An Electoral Commissioner shall cease to hold office if he takes up any office of profit under the Crown.'.
No. 3, in page 95, line 44, at end insert—
'(g) he has accepted nomination for office on any elected public body
(h) he takes up any office of profit under the Crown.'.
No. 22, in clause 3, page 3, line 11, at end add—
'(7) No serving or former member of the House of Commons, the Scottish Parliament, the National Assembly for Wales, the Northern Ireland Assembly or the European Parliament shall be eligible for appointment as an Electoral Commissioner.'.
§ Mr. Stunell
The three amendments in my name hang together and have a clear intent. Amendments Nos. 1 and 2 deal with the qualifications—or, perhaps more accurately, the disqualifications—for being an electoral commissioner and amendment No. 3 deals with the 633 disqualifications that would apply to deputy electoral commissioners who can be appointed under the provisions in clause 13.
In the Standing Committee, we considered the Bill's broad sweep and reminded ourselves that it represented the first fundamental review of our electoral procedures since 1883—117 years ago. The Government's intention—Liberal Democrats support them on this—is that the overhaul should be thorough and enduring. Although, given the speed of legislative change, I have no doubt that our successors will return to the issue long before another 117 years have passed, we must bear in mind that we are putting in place provisions that will have a long life. Indeed, they may have a longer life than any of us in this Parliament or even the current political parties. In the Standing Committee I reminded the Minister that the Labour party did not even exist in 1883, so who can say where we might be in another 117 years?
Everyone in this Committee is, of course, sane, wise and full of good intentions and good will. It is inconceivable that any Member here today would ever seek to stuff the Electoral Commission with friends, cronies or those with ill will towards the democratic process in their hearts.
Clause 1 and schedule 1 put in place the first steps to ensure that the Electoral Commission is a buffer or intermediary between the harsh and sometimes fractious realities of party political conflict in the House and outside and the administration of the electoral and democratic process. The aim is to set up an authoritative, neutral and non-partisan body, untainted by outside interests. The Bill goes a long way towards achieving that.
I add in passing that the House and the British constitutional system are adept at forming such bodies, which in many other democratic systems might be regarded with the utmost suspicion and thought of as unworkable. We already have a good number of such bodies in our system, so the process of setting them up and their operational viability are certain.
The amendments would go one step further and try to ensure that there will be no circumstances in which there can be the impression or reality of an improper interest or improper influence being brought to bear on the electoral commissioners or the deputy electoral commissioners.
The amendments are simple and straightforward. The first would prohibit any electoral commissioner from being a person who holds a publicly elected office. That may seem so obvious and simple that it does not need to be stated, but it is appropriate that it should be spelt out in the Bill. We should be clear that the commissioners are without any personal interest in the outcomes of the decisions that they make or may make. It is important also that the public perception is that they are completely without any taint of personal interest in those outcomes.
Amendment No. 2 would hopefully rule out the possibility that any future Government or Secretary of State would pack the Electoral Commission with place people, by making sure that commissioners cannot simultaneously hold an office of profit under the Crown. That is intended to preserve their independence of thought and action and to prevent any perception that they might come under undue influence from a future Government or any of their agencies.
Amendment No. 3 would deal with the role of the deputy commissioners, which I mentioned in an intervention on the right hon. Member for Bromley and 634 Chislehurst (Mr. Forth). In every practical regard, they will have the same duties and responsibilities as the commissioners, and they will be appointed by the commissioners subsequent to the appointment of the commission. The deputy commissioners will have the same freedom of action within the terms of reference in the Bill and the functions given to the commission to exercise powers on its behalf. It is therefore entirely sensible that they should be subject to precisely the same restrictions on holding elected office and office for profit under the Crown.
These straightforward amendments are intended to strengthen the hand of the Electoral Commission and to make sure that it is seen to be, and is, completely above suspicion in a future that may stretch through different and difficult political times, when it may be extremely valuable to us all for the commission to have that safeguard of independence and freedom to exercise its own judgment in the face of possible substantial and sustained pressure by a hostile Government.
§ Mr. Walter
I think that the Opposition have always made it clear throughout the deliberations on the Bill in the Standing Committee and, I hope, on the Floor of the House that, in our amendments and comments, we seek to improve the Bill. It will come as no surprise that there were occasions in the Standing Committee when the official Opposition and the Government found themselves on the same side in discussing Liberal Democrat amendments.
In tabling amendment No. 22, we were trying to ensure that the commission is independent. I know that those were the sentiments that were expressed by the hon. Member for Hazel Grove (Mr. Stunell), but I should like to quote what the Neill committee said.
§ Mr. Mike O'Brien
It may assist the hon. Gentleman to know, as he develops his argument, that he does not have to convince me of the principle of the amendments. I am not far from him. My only question is whether he considers that councillors should be included in the amendment.
§ Mr. Walter
I thank the Minister for his intervention, but the point that I wish to make is important. Although I shall not necessarily quote the Neill committee at length to aid my argument, it is worth repeating what it said:An Election Commission in a democracy like ours could not function properly, or indeed at all, unless it were scrupulously impartial and believed to be so by everyone seriously involved and by the public large.It went on to say in paragraph 11.8:In our view, a number of important consequences follow. The first is that the members of the Commission should not, in the normal course of events, be people who have previously been involved in any substantial way in party politics.The substance of amendment No. 22 is that we should exclude from membership of the commission those who are, or have been, Members of Parliament, Members of the National Assembly for Wales, Members of the European Parliament, Members of the Scottish Parliament, or Members of the Northern Ireland Assembly.
The Minister asked whether local councillors should be excluded. I should like to look a little more deeply at the implications of amendment No. 1 for local councillors. 635 The question is: how local do we want to get in excluding people who might sit on the commission? The hon. Member for Hazel Grove suggests that anyone who has stood for, and been elected to, a public body should be excluded. Does he—the Minister might have some views on it, too—include members of a parish council, or a community council in Wales? Does the hon. Member for Hazel Grove think that we should exclude church wardens, who hold an elected public office?
The Church of England is an established Church, governed by statutes that were passed in the House, as are members of parochial church councils of the Church of England and those who go on to stand for office—
§ Mr. Stunell
Although the hon. Gentleman's questions are legitimate, he is perhaps making slightly heavy weather of it. Clearly, an elected public body includes local councillors and parish and community councillors. It does not include bodies such as the Church of England, as he has indicated.
§ Mr. Walter
I hesitate to accept the hon. Gentleman's explanation because I believe that those elected in the Church of England—it is the only Church that is the established Church—are holders of public office. Elected churchwardens are elected by the general electorate of their parish—those who are resident in the parish. Members of parochial church councils are elected by those on an electoral register, to which anyone resident in the parish can seek registration. By implication, those who serve on bodies from the deanery synod to the General Synod of the Church of England can be regarded as having been elected.
What about parent governors of state schools? They are elected by the parents within a state school; a state school is a public body; therefore, its governing body is a public body. I think that parent governors would fall foul of the definition set out in the Liberal Democrats' amendment.
More important is amendment No. 2 and the issue of what constitutes an "office of profit". If the amendment were accepted, it would kill a later amendment standing in my name and those of my right hon. and hon. Friends, but that is not the reason why I specifically object to it. Quite simply, the reason is that, in pursuing independence by making the amendment, we would kill off the possibility of several independent office holders joining the commission—people who would otherwise provide a great deal of weight to the Electoral Commission's independence.
In addition, the provision falls foul of the Government's proposal that the Electoral Commission should absorb the work of the boundaries commissions. The chairmen of the boundaries commissions as constituted are normally High Court judges, who are holders of an office of profit under the Crown. Therefore, the amendment would preclude from appointment to the Electoral Commission people who are already in post in bodies that are likely to be incorporated into the commission.
In passing, I should point out that if, as the Minister says, the chairmanship of the Electoral Commission is to be a full-time post and if, as I imagine they will, the part-time commissioners are to be paid a salary or form of allowance for their endeavours, they will, by virtue of 636 their appointment to the commission, become holders of an office of profit under the Crown and so will, immediately on their appointment, become ineligible to continue to hold the office. Amendment No. 2 is, therefore, somewhat illogical. I shall not dwell on amendment No. 3, as it is consequential on amendments Nos. 1 and 2.
I am reassured by the Minister's intervention, in which he stated that he leans a long way toward being sympathetic to amendment No. 22. He asked whether local councillors should be included. The spirit of the amendment is to preclude from membership of the commission those who hold significant elected office. It covers Members of Parliament, of the Scottish Parliament, of the National Assembly for Wales, of the Northern Ireland Assembly and of the European Parliament, but the Conservatives would be quite content if the Government thought it necessary to extend the principle of the amendment to local councillors.
§ Mr. Forth
I am rather uneasy about the direction of the amendments. It seems that an unfortunate pincer movement is being deployed, whether wittingly or unwittingly—who knows, in this day of consensual politics? My right hon. and hon. Friends on the one hand, and the Liberal Democrats on the other, seem to be closing in on the unfortunate commissioners from two directions, and I am not sure that I agree with either of them.
The wording of amendment No. 1 says that a commissionershall cease to hold office if he accepts nomination for office on any elected public body.We must deal with the important distinction between nomination and election. We must consider whether it is wrong, improper or unacceptable for an electoral commissioner to allow himself even to be nominated, whether or not he is elected.
In the case of the Liberal Democrats, a mere nomination would rarely cause them to be elected, so that might seem a little hard on them. In the case of Conservatives or Labour party members, election may well follow nomination fairly regularly, so the approach is uneven. Liberal Democrat Members are being unfair on their own colleagues.
Leaving that issue to one side, I query the principle itself. The interesting contrast between amendments Nos. 1 and 22 is that my colleagues seem to seek to deny the commission the benefit of political experience, whereas the Liberal Democrats seem to wish to deny to the political process previous experience on the commission.
My argument is that an interplay between the commission and the political process may not be as undesirable as both the Liberal Democrats and my right hon. and hon. Friends suggest: the commission may well benefit from that two-way process. I suspect that we are beginning to see the effect of the bodies that we keep setting up to intervene in the political process, which Ministers keep quoting as the final word on the subject. Any possibility of a causal connection or a connection of membership between the commission and the political process is, the amendments suggest, unacceptable.
That is an odd argument, unless one starts from the proposition that any interconnection is per se undesirable. I would approach the matter from an entirely different 637 direction and say that the commission may benefit from a proper degree of representation of people with political interest, prior political experience, or indeed political aspirations.
§ Mr. Stunell
I entirely accept the right hon. Gentleman's point. The purpose of my amendment is to make sure that there is nothing to stop a poacher becoming a gamekeeper, because I can think of nobody better than a poacher to become an effective gamekeeper. However, my amendment seeks to prevent the gamekeeper reverting to being a poacher, and perhaps setting rules as gamekeeper that will benefit him when he once again becomes a poacher. My amendment addresses precisely the right hon. Gentleman's argument.
§ Mr. Forth
I doubt whether the amendment would have that effect. If an individual were able to do what the hon. Gentleman suggests, and single-handedly get himself on to the commission or on to a political body, and then single-handedly influence the other commissioners or Members or Parliament, he would probably deserve what he was aiming to achieve, if he were that good. I doubt whether many people can exercise such mesmeric influence. Perhaps the hon. Gentleman would.
§ Mr. Stunell
I am sorry that the right hon. Gentleman, who contributes so fluently to these debates, spends less time listening to the contributions of other hon. Members. If he had listened, he would have heard me say that there were two evils to be avoided—one, the real possibility that that might happen, and the other, the public perception that it could happen, which would fatally undermine the credibility of the Electoral Commission.
§ Mr. Forth
That gives the game away, and worries me more and more. The idea of the public perception, which is generated almost entirely by the media anyway, is in danger of causing us to have such a lack of confidence in ourselves, our processes and our integrity that we will no longer be capable of making properly independent decisions of the kind that an electorally accountable legislature should make.
I am not going to be frightened or stampeded by talk of public perception. Public perception is important, but it is generated almost entirely by the words and images of the media. I should be surprised if the hon. Gentleman's postbag were stuffed full of letters from irate and outraged constituents, complaining about any interchange between members of the Electoral Commission and elected Members, even at the nomination stage. I have received no such letters, and I should be astonished if the hon. Gentleman had received even one. The hon. Gentleman's paranoia about public perception of the alleged evils of the political process is dangerous and could lead the House, or even the Committee over which you are presiding, Mr. Lord, to be so afraid, and so lacking the self-confidence to use our judgment and make free-standing decisions—accountable as we all are to our electors—that we become the instrument of outside bodies or, even worse, that of purported public perception.
§ Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)
I am surprised by the right hon. Gentleman's point about public opinion. He may not have received any letters about the Government's proposed action to try to prevent candidates for the mayoralty of London from issuing individual communications for which the public pay, but I have received such letters. That matter might well be tackled by an independent commission.
§ Mr. Forth
I do not doubt that, or query the fact that we all want an independent commission. We are discussing whether a former Member of Parliament serving on the commission would prevent it from being independent, or whether the proper political aspirations of a member of the commission would undermine its independence. Neither proposition is self-evident or credible. We must be cautious about putting too many constraints on the political process, in case that reduces or demeans the commission's effectiveness.
I am surprised at the view that my right hon. and hon. Friends have taken in amendment No. 22, which would provide that serving or former Members of the House of Commons or the other distinguished elected bodies would, having served with distinction, be ineligible to make a contribution to the Electoral Commission. I go further: a proper degree of representation by a former Member of the House of Commons would add enormously to the commission's breadth of vision and practical experience. A commission bereft of such experience might be a lesser body. I must differ totally from my right hon. and hon. Friends and I cannot therefore support amendment No. 22. If the Government agree to it, I cannot support them. I hope that the Minister will give the matter further thought in the short time that our little debate allows him.
I want to consider amendment No. 1 and the important distinction between nomination and election. Aspiration to political office and the willingness to allow oneself to be nominated is an important process. It makes a statement, but there are a million miles between that and being elected. Are we so nervous and tentative that we claim that even being nominated should debar someone instantly from serving on the commission?
§ Mr. Stunell
The very title, "Electoral Commission", suggests that the commission's principal purpose is to deal with matters prior to election. A candidate who has sought nomination is at the heart of the business to which the Electoral Commission is entirely devoted. It is right and appropriate that such a person should be debarred.
§ Mr. Forth
That is the hon. Gentleman's judgment. A less harsh and more liberal view, if I may put it that way, and one that I might espouse, is that a member of the commission should step down from its deliberations for the period of his nomination as a candidate. That proposition, which I might have felt more able to support, is not unreasonable, but total disbarment or the need to dismiss a commissioner merely because he has accepted a nomination seems to be overly illiberal. However, we are becoming increasingly used to such proposals from the Liberal Democrats. Perhaps their proximity to government makes them that way.
I do not want to prolong the debate unduly, but I am alarmed. I had hoped that the Minister would take his usual approach of not accepting any amendments— 639 I would have felt cheered by that and he would have had my wholehearted support—but I am horrified to learn that, apparently, he likes them and the Government are minded to accept. I make a plea, although it gives me no joy. I hope that the Minister will not accept even the spirit or substance of amendment No. 22, which was tabled by my hon. Friends, because it strikes me that the commission could be severely weakened in the discharge of its functions and responsibilities ifNo … former member of the House of Commonswere eligible for appointment. That would be a big mistake and I hope that the hon. Gentleman will think again, if he were ever minded to accept that amendment. I certainly do not.
§ Mr. David Wilshire (Spelthorne)
It is always a delight to listen to my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), the Opposition parliamentarian of the year, as I am always reminded of how much I have to learn. It therefore pains me greatly to take a slightly different tack and I apologise to him for doing so. The words "Committee of the whole House" always signal great importance and, whether we have been involved in previous stages of a Bill's consideration or not, it is dangerous to leave such matters to the specialist few. Therefore I make no apology for becoming involved in the debate.
When confronted by a Minister who is prepared, it seems, to make a small concession, it is always tempting to pocket that concession, shut up and go away, but for two reasons we should be careful not to be seduced. The Minister might want an early night, but we should not stop all debate because he is offering us the odd crumb of comfort. First, we are not sure what he is offering and if we do not speak before he makes his offer, the chances are that we shall be not be able to do so afterwards. Secondly, even if he offers us a goody that we like, it is important that the record shows why we are concerned and why we want that concession. At some stage in the unforeseen future, somebody may want to look back at Parliament's intention when it was offered.
I want first to discuss amendment No. 22. I was surprised by it, not for the reasons given by my right hon. Friend, but because I had assumed that the Bill would say a great deal about the commissioners. However, even though the explanatory notes refer to the commissioners on some 20 pages, they are silent on the skills required and on impartiality, which is crucial. As far as I can make out, the Bill is also silent on that and I am amazed by that silence.
In principle, amendment No. 22 has my support. Although it pains me to agree with the Liberal Democrats—I promise them that I do not intend to make a habit of it—I was also surprised by amendments Nos. 1, 2 and 3 for the same reasons. I listened carefully to the hon. Member for Hazel Grove (Mr. Stunell) and all I can say is that, despite the reservations of my right hon. Friend, the principles he was driving at are so obviously right that they should have occurred to the Government. It should not be necessary for an Opposition Member—if Liberal Democrats are Opposition Members; for the moment, let us assume that they are—to table amendments that are so evidently necessary and sensible, no matter which party he belongs to.
640 History is littered with examples of party hacks seeking unfair advantage for their party, and the Bill offers the commissioners all sorts of opportunities to take advantage for a party that they support. They will be involved in registering parties and overseeing party political broadcasts, which will both offer huge temptations, as well as in the regulation of donations to parties. We need only read the newspaper reports of what has happened in Germany to learn what those temptations could be.
History is also littered with examples of candidates at elections seeking to bend the rules. Again, we should consider the powers that are being offered to the commissioners, who will be able to determine boundaries. Gerrymandering is an art form in some countries, but I do not want it to become an art form here. On the control of spending at elections, America offers an example of what happens when spending gets out of control. How that spending is regulated can be a partisan matter if people want it to be. The commission's ability to oversee the conduct of polls and make regulations will provide almost limitless scope for taking advantage, should someone be so minded.
History is further littered with examples of organisers of referendums seeking to distort the result to their own advantage, yet the commissioners will be told that they can determine the permitted participants in a referendum. That represents a wonderful opportunity for someone to cook the books to his own advantage. They will also be involved in deciding how money will be provided and there will be enormous scope for those who want to take advantage of it.
On amendment No. 22, I would not for a moment suggest that any Member of this honourable House would want to do any of those things, so we can exempt all current Members of the House of Commons from that. However, I would support the amendment for the benefit of future Members who may not be as trustworthy and upright as we are. There is good reason, without criticising ourselves or each other, for going down that track. Whatever else might be said, we all have to admit, "Once a politician, always a politician." People will always worry about what we might be up to if we appear to make our own rules, so the Electoral Commission must be utterly, completely, totally impartial, but that is not enough. It must not only be impartial; it must be seen to be impartial above all doubt.
Despite the reservations that one might have about what the media will make of things, perception is important on this occasion. These proposals are so central to the way in which a democracy functions that we have to make it clear that political activists are not involved. The Minister asked my hon. Friend the Member for North Dorset (Mr. Walter) whether councillors should be included. My reply would have been that, although I had not thought it through thoroughly, I would be tempted to say yes, although there are doubts about parish councillors. The parliamentary draftsman would have to make that distinction. In return, I would have put a question to the Minister along the same lines.
§ Sir Michael Spicer
Presumably, councillors would have be to excluded if the argument is that anybody who has been contaminated by party politics at any time has to be excluded, but would not ex-councillors also be excluded? Is not that a reason why my hon. Friend is 641 pushing his argument a little further than he might otherwise do in agreeing to exclude former Members of Parliament from the commission?
§ Mr. Wilshire
I understand my hon. Friend's argument. If we are not careful, we shall have such a long list of people who cannot serve that it might be difficult to work out who is left to serve. In trying to help the Minister by responding to his query about councillors, I said that I should like to think it through, but my instinct goes in that direction. Former councillors would be caught as well.
The question that I was about to ask the Minister, in much the same spirit—he may like to ponder it rather than give a definitive answer—was whether someone who belongs to, or has belonged to, one of the registered parties would be seen to be tainted. Perhaps the Minister may care to contemplate that point. That would leave us with even fewer people, but the same arguments apply to party political activity as apply to elected activity.
The details of all four amendments may not be perfect, but the little morsel that the Government are about to throw to us may not be the right one. The principle behind the amendments—and, I suspect, behind the concession that we are about to be given—is right, and I hope that the Committee supports them.
§ Mr. Maclennan
I support the thrust of all four amendments. It is imperative that the commission should be, and should be seen to be, independent. It is impossible for us to legislate for independence. Anyone who is appointed to a job of such importance is likely to have views: political eunuchs are few. However, we can legislate to prevent holders of offices who have declared views and who are not independent—by virtue of their holding of those offices—from holding such office as that of an electoral commissioner.
It is clear that behind this measure lies the desirability of ensuring that decisions about elections are taken with the maximum objectivity and are as far removed as possible from party interest as we can devise. It cannot be doubted that the decisions that are taken or recommended by commissioners will have major political import—sometimes disadvantageous to particular political parties. The dissatisfaction that flows not infrequently from boundary commissions' decisions demonstrates the point.
Furthermore, under clause 5(2), the Secretary of State may request a review of the commission. Now we learn that the commission may do anything, except borrow money, which is calculated to facilitate the carrying out of that review. It is an extensive power to take action on behalf of a Minister of the Crown, who will undoubtedly have a view. Although commissioners are not agents of the Crown, as specified in schedule 1, they clearly act under instruction from the Government, in that instance at least.
We must do all that we can. Mere asseverations of the Government's intention that these roles should be conducted with objectivity and independence of mind are not good enough. If the language of the amendments does not stand up, for some technical reason, I hope that the 642 Government will agree to come forward with their own language designed to shore up the independence that we all seek.
§ Mr. Mike O'Brien
As the debate has shown, the amendments raise important issues concerning the eligibility of certain persons to be appointed as electoral commissioners or deputy electoral commissioners. Amendments Nos. 1, 2 and 3, in the name of the hon. Member for Hazel Grove (Mr. Stunell), would prevent anyone who accepts nomination for office on any elected public body or who holds any office for profit under the Crown from serving on the Electoral Commission. Amendment No. 22 is along similar lines to amendment No. 1, and would prevent any serving or former Member of the House, the European Parliament or a devolved legislature from serving as an electoral commissioner.
Until I saw the battering that the proposal in amendment No. 22 was given by Conservative Back Benchers, I was disposed to accept the underlying spirit of that amendment and of amendment No. 1. However, interesting and important issues have been raised, so I ask that the Government be allowed time to consider this matter. Some pertinent points have been made that we should weigh in the balance in considering how we move forward.
I shall set out some broad principles. It is important that the Electoral Commission is scrupulously impartial in the conduct of its business. If it is to be seen to be above the party political fray, appointees to the commission should be politically neutral figures who have not previously been involved in a substantial way in the party political process. Anyone who has in recent years held senior office in a party, been elected or been a major donor to a political party would obviously be seen as partial. It follows that, once appointed, an electoral commissioner or a deputy commissioner should be excluded from such activity.
I can see an advantage in including at least some of these restrictions in the Bill. It would be impossible to legislate for all possible conflicts of interest. That may be better dealt with in the terms of appointment.
If the hon. Member for Hazel Grove will agree to withdraw the amendment, I should like to consider introducing a Government amendment that will take on board at least the core principle of amendments Nos. 1 and 22, bearing in mind some of the valid points that have been made.
§ Mr. O'Brien
Perhaps I could give way when I have completed my argument, because the hon. Gentleman will then see where I am going.
The right hon. Member for Bromley and Chislehurst (Mr. Forth) asked how long someone should be excluded from the nomination process. The hon. Member for Spelthorne (Mr. Wilshire) asked whether any person who is a party member should be regarded as tainted. There must be a willingness to have people with at least some awareness of the political process on such a commission. They need not be elected or have previously held political positions, but they should at least be aware of the political process and have the benefit of being impartial.
643 In the past, we have taken the view that certain former Members of the House and some serving Members of the other place provide an element of impartiality, even when they have expressed partial comments. For example, the person who chairs the Metropolitan Police Committee is a former Member of the House. When we wanted to examine the issue of proportional representation, we did not consider a commission headed by someone who had never said a word on the subject. We believed that we should have people with some knowledge of the issues. Likewise, we do not consider that people who formerly served in the House should not act as judges, and that their partiality is so obvious that they should be for ever excluded from such positions.
However, an appointee who has recently stood for election, or has obvious partiality because of his party political affiliation would undermine the commission's credibility. Striking a balance is important. It cannot be right to tell people that it is their duty as citizens to be politically interested and involved, and then, when they have completed that duty, exclude them from serving on a commission at some point and for all time because they lack the necessary objectivity, integrity and impartiality.
I should like to consider the point raised by the right hon. Member for Bromley and Chislehurst, who asked whether exclusion should be for ever. What the public really want is to know that people serving on the commission can reach reasonable and objective judgments and that the commission will not be tainted by past political affiliation. Ensuring that those objectives are achieved will be a matter for those who appoint the commissioners.
The only reason why I have not yet gone into detail on disbarring is that, as I said, the debate has raised some important issues on various matters. My initial view on disbarring was that we should disbar for a time former Members of Parliament, Members of the European Parliament and Members of devolved legislatures. We should also disbar certainly serving and probably recent unitary, borough and shire councillors. I would be reluctant to go as far as excluding parish councillors. However, as in my area, some parish councillors stand for office on a party political ticket. There is therefore an issue of whether we should be concerned about the impartiality of those who have very recently stood on a party political ticket for a parish council, or who are currently serving as parish councillors after election on that basis.
Although there is a strong argument for clearly addressing those issues in the Bill, I should like to consider further the detail of amendments Nos. 22 and 1. I accept the principle behind the amendments, and the fact that there should perhaps be relevant provision in the Bill, but I should also like to consider the various other views expressed in the debate.
Amendment No. 2 presents a rather more difficult problem. I understand the wish of the hon. Member for Hazel Grove to avoid conflict of interest. However, it is not self-evident that a conflict of interest automatically arises if an electoral commissioner holds some other public office. With the exception of the chairman, the commission's members may well be part-time appointments. Therefore, we would be unnecessarily 644 restricting the field of candidates if we restricted anyone who holds judicial office, for example, as a part-time recorder or as a member of some type of non-departmental public body. Indeed, we may positively welcome such candidates.
I am not sure whether, if we were to accept the proposed restrictions on candidates, we would also wish to exclude from the commission Lord Neill or members of the Neill committee. Therefore, although we have to think much more about such restrictions, I cannot accept amendment No. 2.
Eventually, it might make sense and be desirable to have on the commission a commissioner, a deputy commissioner or one or two people who have served on the parliamentary or local government boundary commissions. Some of the amendments, however, would exclude such people from serving on the commission, and I do not think that that would be right or desirable.
I suspect that the distance on the issue between the hon. Member for North Dorset (Mr. Walter) and me is less than that between him and the right hon. Member for Bromley and Chislehurst. Similarly, the distance on the issue between the Government, the official Opposition and the Liberal Democrats is not too great. We all agree that the Bill should contain some provision to ensure that political partiality is not seen to be obvious in the commission.
We should, however, constrain such provision a little more carefully to take on board the fact that, although people may hold various offices or be former hon. Members and have some knowledge of the political process, they should not be excluded. We should at least not exclude them from consideration. Perhaps after a given time has elapsed, consideration of their appointment should be allowed.
On that basis, I ask the hon. Member for Hazel Grove to withdraw amendment No. 1.
§ Mr. Stunell
Although there are still some points of difference between us, I thank the Minister for his very helpful and constructive reply. The debate has been worth while. If it has at least caused the Government to consider what the right level of skills qualification and disqualification should be, and to agree to present further proposals to the Committee, it will certainly have been worth while.
Various points have been made in the debate, and I shall not even attempt to deal with them comprehensively. I should, however, like to deal with one difference between the view that I expressed and the view of the right hon. Member for Bromley and Chislehurst (Mr. Forth), who seemed not to be as concerned as I believe that the Committee should be about the impact of public perception in this sphere of public policy. Surely he has learned from the previous general election that public perception is utterly vital to the integrity of the political process and the public perception of that process. If the Electoral Commission should at any point lose public credibility, the consequent damage would be very serious.
As I said when moving the amendment, the Neill review is the first fundamental review of the electoral system for 117 years. There may be another review soon, 645 but equally, there may not be another one soon. Therefore, our fundamental objective should be to get the grounds rules for the Electoral Commission right.
In the Standing Committee, when concerns were expressed about other parts of the Bill, the Parliamentary Secretary, Privy Council Office—dealing with us very fairly—said, "Don't worry. Our intention is that this is a matter that the Electoral Commission will come back to in due course." It is one of the Minister's favourite phrases.
§ The Parliamentary Secretary, Privy Council Office (Mr. Paddy Tipping)
§ Mr. Stunell
Revisiting issues is fine, as it will provide a mechanism for keeping electoral processes up to speed—whether those processes involve new technology, new avoidance techniques developed by the political parties, or as yet unforeseen circumstances—but that benefit will be undermined if the Electoral Commission itself has lost public credibility and validity in the eyes of hon. Members. Furthermore, not only the Government of but the Opposition of the day will have, implicitly, to be able to place their trust in the commission and to have confidence that the commission is able credibly to conduct elections.
In other countries with different political backgrounds, the majority of general elections are won not by campaigns, but by their equivalent of the electoral commissioners and the rules that they operate. That is why it is so very important that the Committee should ensure that we have appropriate rules which command public support and deliver what Parliament wants.
I thank the hon. Member for Spelthorne (Mr. Wilshire) for his very time-limited but specific support for my amendments. I shall not tempt him by saying more than that. Nevertheless, there is one important distinction between my amendments and amendment No. 22, which was tabled by Conservative Front Benchers. I ask the Minister, in considering the issues raised in the debate, to consider those differences very carefully. I have characterised the argument as one involving the poacher and the gamekeeper.
I see absolutely nothing wrong with people with experience of poaching joining the commissioners and showing not only that excesses exist, but how those excesses might be controlled or mitigated. I take the point made by the Under-Secretary, that there should perhaps be a period of purdah, so that one does not go from being Chancellor of the Exchequer to being an electoral commissioner. Such a restriction seems sensible. However, it is also worth bearing in mind the Minister's other point—that pre-existing political experience and knowledge of political culture are important.
I tell Conservative Members that the truth of that proposition was evident in the Committee's previous consideration of the Bill. Each hon. Member has experience of fighting elections, raising money and taking part in keen political debate, making us perhaps uniquely well-equipped—perhaps too well equipped—to know what we are talking about when debating this subject. So often, a Committee's consideration is perhaps not terribly well informed by practical, first-hand experience. However, in the Committee's consideration of this legislation, everything from the auctioning of Mrs. Thatcher's handbag 646 to the most minute detail of electoral law has been explored by people who know what they are speaking about. Let us have some poachers.
§ Mr. Stunell
That is for Conservative Front Benchers to explain.
I hope that the Minister accepts that we should not throw away the idea of having commissioners with political experience. However, we must ensure that there is not the slightest appearance or reality that they are returning to political activity. I accept that some issues are best put into employment contracts and others are best put in job descriptions, but some are best put in the Bill. The Bill should specify that such people should not participate in current political activity.
I shall not pursue the argument about whether parish councillors should be included. I do not want my practical intention to be sunk by sticking too rigidly to an interpretation that I offered the Committee on the spur of the moment in an intervention. But it would be a shame if we did not take into account, for example, the fact that someone had been the leader of a local authority in a major city for 10 years.
I understand the Minister's reluctance to accept amendment No. 2, which deals with taking an office of profit under the Crown. A Conservative amendment lists several offices of profit under the Crown from which some candidates for the commission would have to be chosen. I understand those arguments, but I hope that the Minister understands the concern that a less benign future Government—not containing any current Members of Parliament, who are full of good will to all men and women—might seek to use the appointments system to undermine the integrity and independence of the Electoral Commission. Hon. Members may think it far-fetched to fear that we could get into a situation such as obtains in some other so-called democracies, where the equivalent of the Electoral Commission is manipulated by the ruling party, but we should not leave that as a feasible option.
We have had a useful debate and the Minister has made some useful concessions. We shall watch carefully to see the form of those concessions when they reappear. I hope that he will bear our concerns in mind and will treat them not as party political knockabout, but as a genuine desire to ensure that we establish a secure, long-lasting foundation to monitoring our democratic process. I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Dominic Grieve (Beaconsfield)
I beg to move amendment No. 35, in page 98, line 14, after '17(8)', insert—'or by the Scottish Parliament in pursuance of section [Transfer to Commission of functions of Local Government Boundary Commission for Scotland](8).'.
§ The Second Deputy Chairman of Ways and Means (Mr. Michael Lord)
With this it will be convenient to discuss the following: amendment No. 23, in clause 5, page 4, line 7, after 'however', insert—'save with the consent of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly (as the case may be)'.647 Amendment No. 24, in page 4, line 26, at end insert—'(iv) local government elections in Scotland (with the consent of the Scottish Parliament); and'.Amendment No. 28, in clause 8, page 6, line 28, after 'Scotland', insert—'unless the Scottish Parliament requests otherwise'.Amendment No. 34, in clause 11, page 8, line 14, after 'Scotland', insert—'except with the consent of the Scottish Parliament'.New clause 3—Transfer to commissions of functions of Local Government Boundary Commission for Scotland—
- '.—( 1) The Scottish Parliament may by order make provision for the transfer to the Commission of any one or more functions of the Local Government Boundary Commission for Scotland (in this section referred to as "the Scottish Commission").
- (2) The Commission shall make arrangements for functions transferred to them by an order under subsection (1) to be exercised by the Boundary Commission for Scotland.
- (3) Where each of the functions of the Scottish Commission is transferred by an order under subsection (1), the Scottish Parliament may by order make provision for the abolition of the Scottish Commission.
- (4) An order under subsection (1) or (3) may include provision for the transfer to the Commission.
and an order which contains provision such as is mentioned in paragraph (b) may in particular provide for the order to have effect despite any provision (of whatever nature) which would prevent or restrict the transfer of the property, rights or liabilities otherwise than by the order.
- (a) of the staff of the Scottish Commission, and
- (b) of any property, rights and liabilities to which the Scottish Commission are entitled or subject;
- (5) An order under subsection (3) may include provision for the abolition of any duty in compliance with which the Scottish Commission was established or constituted.
- (6) An order under this section may contain any appropriate consequential, incidental, supplementary or transitional provisions or savings (including provisions amending, repealing or revoking enactments).
- (7) Any power of the Scottish Parliament to make an order under this section shall be exercisable by statutory instrument.
- (8) The expenditure of the Commission, so far as attributable to the exercise of any functions transferred by an order under subsection (1), shall be met by the Scottish Parliament.'.
§ Mr. Grieve
Amendment No. 35 is perhaps the least important of the amendments in this group, because it is consequential on the others, so the fact that it is the lead amendment might be misleading.
The amendments concern the possible applicability of the aspects of the Bill relating to the commission to local elections in Scotland. It became apparent in the Standing Committee that, as a consequence of devolution, although the new regime that we are establishing for the funding of political parties will apply to elections to this place and to the Scottish Parliament, it will not apply to local government elections in Scotland, by virtue of the Scotland Act 1998.
Lord Neill was unequivocal about the desirability of the reforms that he was proposing applying to every part of the United Kingdom. He said:We have considered whether the Election Commission's remit should cover the whole of the United Kingdom for all purposes or whether, in connection with elections and referendums in Scotland, 648 Wales and Northern Ireland, there should be separate election commissions for those parts of the country. Our view is that the Election Commission should have UK-wide authority, especially since all aspects of election law (save for local government elections) are to be reserved for the UK Parliament under devolution legislation.It is curious that, when the Bill is passed, the regulations on election expenditure and political donations for those standing for the Scottish Parliament will be different from those that apply to candidates in local government elections.
We respect the decisions of the House as regards the Scotland Act 1998. The decision on whether the anomalies on funding are tolerable or sensible must be a matter for the Scottish Parliament, even if we have our own views on the matter. However, we should consider how far we facilitate any wish of the Scottish Parliament to come within the umbrella of the Bill, which appears to have been welcomed in principle by all parties. That is the aim of the amendments. In each of the clauses relating to the commission, the amendments would enable the Scottish Parliament to invite the commission to take over some of the functions that will otherwise have to be exercised elsewhere. I shall run through them briefly.
Under clause 5, the commission is required to keep under review and to submit reports on a range of issues, but that requirement does not extend to local government elections in Scotland. We propose in amendment No. 23 to enable the Scottish Parliament to request the commission to provide such information on local government elections in Scotland or elections to the Scottish Parliament.
§ Mr. Tipping
I have been following the debate closely. It mirrors a debate that we have had elsewhere. Clause 8(1) says:The Commission may, at the request of any relevant body, provide the body with advice and assistance as respects any matter in which the Commission have skill and experience.That may deal with the matters about which the hon. Gentleman is concerned.
§ Mr. Grieve
That is a half-reassuring comment, but I am not completely convinced. Some clauses specifically provide for the right of the National Assembly for Wales to sign up, but the same has not been done for the Scottish Parliament. I understand that the Scottish Parliament probably can be defined as a relevant body, so it might be possible for other provisions to be implemented, but nothing will be lost by spelling out in the relevant clauses the provisions from which it will be possible for the Scottish Parliament to benefit.
The Minister's argument about the more general aspect of clause 1 may have some force in relation to amendment No. 23, but it has much less in relation to amendment No. 24, which specifically concerns local government elections and which would allow reviews to be carried out under clause 5, subject to the Scottish Parliament's decision.
Amendment No. 28 relates to clause 8, which is all about allowing the commission, at the request of a relevant body, to provide advice and assistance. As the clause stands, it is specifically provided that a 649'relevant election' means any election falling within section 19(3) other than a local government election in Scotland.If the Minister says that that is covered in clause 1, I will have to express a certain amount of doubt, because if that is so, the two clauses are incompatible and there has been a drafting failure. The Bill has been notoriously difficult to draft, as we will doubtless discover on Report when we see what amendments the Government come back with.
Amendment No. 28 would in no way fetter the Scottish Parliament—in no way could it be described as a gross intrusion by Westminster—but would provide a straightforward mechanism whereby the commission, if asked, could provide what Conservative Members believe to be an important service, without further legislation being needed.
§ Mr. Alasdair Morgan (Galloway and Upper Nithsdale)
Has the hon. Gentleman consulted his party colleagues in the Scottish Parliament on the amendments; if so, what is their view?
§ Mr. Grieve
Their view, which I believe is shared widely in the Scottish Parliament, is that the Parliament will have to attend to local government election rules in the near future, and that having a separate set of rules which might be regarded as inferior—in clarity and effectiveness in the elimination of corruption—to those that will apply in Westminster might be undesirable. They have no objection to the amendments, which do not fetter the Scottish Parliament. If the Parliament thinks that it can come up with something better, it is free to do so. No one can suggest that we are trying to interfere with prerogatives handed out under the Scotland Act 1998.
The amendments would allow my colleagues in Scotland, and doubtless other Members of the Scottish Parliament—having read the Neill report and considered the fact that the legislation will apply to Scottish Parliament elections and that similar provision might be beneficial for Scottish local government elections—to sign up if they so wished. If the hon. Member for Galloway and Upper Nithsdale (Mr. Morgan) has an objection, I cannot fathom what it is.
New clause 3 exactly mirrors the provisions in clause 17 in respect of the Welsh Assembly. Clause 17 allows the National Assembly for Wales tomake provision for the transfer to the Commission of any one or more of the functions of the Local Government Boundary Commission".The Scottish Parliament may decide that it wants to spend a great deal of its block grant on having a completely separate boundary commission, or it may want to take account of the fact that there is likely to be at least one Scottish member of the Electoral Commission, and to take advantage, under the new clause, of the expertise that will be on offer to all our democratic institutions.
It has often been said that the secret of devolution's success will lie in the ability of the two Parliaments to co-operate creatively without treading on one another's toes. The amendments and the new clause are designed to achieve exactly that. The Minister took the view in Standing Committee that the Scottish Parliament might want to implement specific electoral rules that we set down in amendments, but that we did not need specifically to provide for them. Now we are talking specifically about the commission.
§ Mr. John Bercow (Buckingham)
My hon. Friend talks about working creatively without treading on one 650 another's toes. Can he assure me that the new clause contains provision to ensure that in future the Scottish Parliament and the Welsh Assembly will indeed be able to work creatively but without treading on everyone else's toes?
§ Mr. Grieve
One of the consequences of devolution—especially in Scotland—is that considerable autonomy has been granted, and I do not want to interfere with that. It is worth remembering that, even under the Scotland Act 1998, the question of the franchise in local government elections remains a matter for the House, so the matters are inextricably linked. Because they are so linked, the commonsense view in Scotland would not in any way take exception to introducing the possibility of the Scottish Parliament's taking advantage of what the amendments and the new clause would offer. I hope that the Minister will see that it makes sense to allow that to happen, rather than wasting resources on further legislation.
§ Mr. Tipping
The amendments and the new clause cover familiar ground, as the hon. Member for Beaconsfield (Mr. Grieve) acknowledged. I accept the spirit of what he is saying. It may well be possible to find common ground. The amendments may be premature. The meat—the strongest part of the argument—lies in new clause 3, which, as he rightly says, mirrors the provisions in clauses 16 and 17.
We are actively discussing the way forward with the Scottish Executive, who are considering whether they want such a provision inserted in the Bill. The hon. Gentleman generously acknowledged that we should defer to them, given that local government is a devolved matter. If they conclude that they would like to transfer responsibility for local government boundary reviews to the commission, we will table a suitable new clause at a later stage.
Such a provision would no doubt look not unlike new clause 3, but for the time being I ask the hon. Gentleman to allow the discussions to proceed. Detailed discussions are being held. The amendment may be the appropriate vehicle to achieve the aims, but at this stage it is not in our gift. The hon. Gentleman should recognise the powers involved, because amendments Nos. 24, 28 and 34 are also the subject of discussions with the Scottish Executive. I cannot promise him that the amendments will be accepted, but he is right to raise the issues.
§ Mr. Alasdair Morgan
The Minister has referred to discussions with the Scottish Executive. Have the Executive told him whether they will take the results of those discussions to the Scottish Parliament before they give him their opinion on the amendments?
§ Mr. Tipping
The hon. Gentleman tempts me a step too far. He will acknowledge that the issues involved have been devolved and are therefore a matter for colleagues in Scotland, who must be accountable for their own actions. However, I will undertake to draw the attention of the Scottish Executive to the discussion this evening and, in particular, to his remarks, which appeared to be a warning to the Executive.
Amendments Nos. 23, 24, 28 and 34 tread similar ground. The key issue underlying the amendments is the devolution settlement. This Parliament has devolved 651 certain matters to Scotland and Wales, including local government elections in Scotland, the funding of political parties represented in the Scottish Parliament and the conduct of referendums in Scotland and Wales on devolved matters. Having devolved those issues, it would not be appropriate for us to give the Electoral Commission free rein to undertake reviews in respect of such matters. Nor should the commission have free rein to conduct voter education programmes under clause 11 in respect of local government and local government elections in Scotland. That is not to say that the commission should not get involved in such matters if invited to do so by the National Assembly for Wales or the Scottish Parliament or Executive. The important point is that the initiative should come not from the commission but from the devolved administrations. I welcome the fact that amendments Nos. 23, 24, 28 and 34 accept that principle.
Clause 8(1) already covers some of the territory addressed by the hon. Member for Beaconsfield. It provides thatThe Commission may, at the request of any relevant body, provide the body with advice and assistance as respects any matter in which the Commission have skill and experience.A relevant body is defined in clause 8(6) to include the Scottish Parliament and Executive and the National Assembly for Wales. Given that clause 8 has almost exactly the same effect as the amendments, I ask the hon. Gentleman to reconsider his position. There is little difference in principle, and it must be right that the provisions of the Bill should extend across the United Kingdom.
I have told the hon. Gentleman that discussions are being held with the Scottish Executive, and I have drawn his attention to new clause 3 and the fact that his drafting may contain some plagiarism. However, I readily acknowledge that if the Scottish Executive, perhaps after discussion with the Scottish Parliament, were minded to accept the provisions, we would table a new clause 3 on Report in terms almost identical to the one he has tabled. Given those assurances and the fact that I foresee the need for further amendment, I hope that the hon. Gentleman can be persuaded to withdraw his amendment.
§ Mr. Grieve
In the face of such courtesy and helpfulness from the Minister, it would be churlish to press the amendment to a vote. I am not sure whether I should look forward to the Report stage, because we will have so much to discuss. The same may apply when the Bill comes back from the other place, although I hope that we will send it there in a satisfactory condition. In view of the Minister's remarks and the fact that we can return to the issue, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Question proposed, That the schedule, as amended, stand part of the Bill.
§ Mr. Maclean
I did not trouble the House with detailed amendments that might have delayed matters unduly, but I wish to say a few words about some of my concerns, 652 especially about the financial provisions. Paragraph 4 states that an electoral commissioner shall be paid such salary and allowancesas may be specified by a resolution of the House of Commons.The obligation seems to be placed on the House to decide the salaries and expenses of the electoral commissioners, but when I searched through the schedule, I found little guidance for the House in completing that task.
Paragraph 10 contains a little guidance about the salaries of the staff of the commission, because it states:In determining the terms and conditions of staff … the Commission shall have regard to the desirability of keeping the remuneration and other terms and conditions of employment of its staff broadly in line with those applying to persons employed in the civil service of the State.That seems reasonable, but there is no obligation on the commission. However, the fountain of all knowledge on the matters under the commission's consideration are the excellent staff of the Home Office, and why should they wish to be lured away to the commission unless the terms and conditions are superior?
The commission will probably have to employ those civil servants who have not been promoted to higher grades, and who will conclude that moving sideways to the commission might give them a good chance of promotion. However, that is not what we want for such an important body, and it will have to recruit some of the cream, the fast-streamers, and those who are currently serving at grade 5 or 3. Indeed, if the commission is to get off the ground, it will need someone at grade 3 level—or perhaps even higher—as the chief executive, several grade 5s and lots of grade 7s and higher and senior executive officers. If we are to get properly qualified people, I suspect that salaries will have to be more generous than the suggestion contained in paragraph 10 that they should be broadly in line with those of the civil service. The Minister and the Government must know that. It is why they have not laid down conditions that the salary, terms and conditions shall be the same as the those of the civil service, merely exhorting that they shall be broadly in line.
If commission staff are to have civil service-type salaries broadly in line—and, as I suggest, more—than those of the civil service if the commission is to recruit properly qualified staff, what salary shall we in the House of Commons provide for the commissioners, deputy commissioners and assistant commissioners? I assume that we will not pay them less than their own staff. It would not be a good signal if we suggested to the commissioners that the House of Commons thinks that the commission is so important that we will pay them less than their civil servants or their chief executive.
§ Mr. Maclean
My hon. Friend is right: we could set that precedent. Members of Parliament are often paid less than many of the staff of the House, and certainly less than some of the chefs and catering workers. That may give an important signal to our electorate and to others, although for the life of me, I am not sure what it is.
We must expect that the commissioners will be paid more than the staff. The Government should have a system for ensuring that that pay is appropriate. 653 Our salaries in the House are tied to the recommendations of the Top Salaries Review Body, and I believe that Members of Parliament are tied in to a grade 7 in the civil service. Some Members of Parliament may have a view about being paid the same as grade 7 civil servants, excellent though they are. In my first few days at the Home Office, no one as junior as a grade 7 was allowed to come to see me on his or her own. Eventually, when they discovered that I was not as ferocious, nasty or terrible as had been rumoured—
§ Mr. Maclean
Yes, they were wrong. As I was saying, after that, staff as junior as a grade 7 were allowed to see the Minister on their own. That is what some Departments regard, rightly or wrongly, as the status of Ministers and of grade 7 civil servants.
§ Mr. Bercow
Unfortunately, my right hon. Friend has failed to vouchsafe one crucial piece of information in developing his argument. Was he, as a Minister, ever allowed to see a grade 7 on his own?
§ Mr. Maclean
That is the case. One day I went walkabout on the fifth floor, unescorted, before my private secretary caught up with me. I made contact with a number of admirable staff, who were equally surprised to see the Minister. But I digress.
How are we to decide the appropriate salary for the commissioners? The schedule should provide a mechanism linking in the Top Salaries Review Body, or one that allows the House to determine the appropriate amount. Otherwise, the Government will simply move a resolution.
Clause 2 sets up a Speaker's Committee. For the life of me, I cannot see that it does anything except consider the financial report prepared by the commission—which it will not be entitled to amend or change one iota—and present it to the House. In this Bill, the Speaker's Committee seems no more than a rubber stamp. It does not appear to have the power to determine the salaries of the commissioners. If I have got that wrong, I am happy for the Minister to say so, and tell me that the Speaker's Committee can determine the salaries of the commissioners and then advise the Government and the Leader of the House on the sort of resolution that should be brought before the House to fix their salaries. The mechanism by which the commissioners will be paid and the reasons for determining their salary should be made clear somewhere in the Bill.
Another little point that struck me when looking at the schedule was that although clause 1 invites us to appoint between five and nine commissioners, we seem to have no control over the number of assistant electoral commissioners who may be appointed. Paragraph 6 of the schedule allows the commission to appoint one or more assistant electoral commissioners. The commission lays down the terms and conditions, and will pay them any salaries and allowance that it thinks fit. Paragraph 7(1) of the schedule provides that the commission may establish any committees that it thinks fit.
We are giving the commission significant power to appoint any number of assistant electoral commissioners and staff and determine their salaries, yet we will be asked 654 to determine the salary of the commissioners once the salary infrastructure has been established. Once the commission has determined, in its independence and wisdom, the salary levels for all its staff and assistant commissioners, how can we have any freedom of choice in determining the commissioners' salaries? Are we not tied by the decisions that they will make for their juniors? It would be perverse for us to determine salary levels for the commissioners at a level that we may think appropriate if those levels are the same as those that they have already determined for their junior staff.
§ Mr. Andrew Miller (Ellesmere Port and Neston)
Does not the right hon. Gentleman believe that the independence created by the provisions in the schedule's final paragraph on the function of the Comptroller and Auditor General answers all his questions? There is an independent mechanism to determine whether the commission is running economically, efficiently and effectively.
§ Mr. Maclean
Paragraph 24, the final paragraph of the schedule, refers to delegates, but I see the provisions to which the hon. Gentleman refers. They deal with the accounting officer, the audit and the accounts. Paragraph 15 refers to the Comptroller and Auditor General's annual examination of the commission. The CAG can conclude that the organisation is efficiently run, with reasonable economy and effectiveness, but I see nothing to suggest that he can rule that the salary structure selected is inappropriate. That is not the solution. Surely it is up to us, if we are moving a resolution on salaries, to be clear in our mind what the salaries should be.
It is totally unacceptable to me, and I hope that it is to the hon. Gentleman, to suggest that we pick a salary figure for the commissioners, then wait for a year until the CAG carries out an audit and says that we have got it wrong. The onus is on the House to get it right in the first place. It is not good enough to have this rather sloppy schedule, which gives the commission significant powers to determine the salaries for its staff and the salaries, terms and conditions of work for assistant electoral commissioners without giving us any mechanism to come to an appropriate determination of their salary or the number of assistant commissioners who will be appointed.
As I wish to make progress—I wish to unburden myself of other opinions—I will leave it there for the moment. I had a number of concerns regarding other provisions of the schedule, but these were the principal ones. I look forward to the Minister's response.
§ Mr. Tipping
I am interested in the right hon. Gentleman's points. I will consider those matters more closely than, I confess, I have to date. He made some strong points. In the debate on a previous group of amendments, were it not for the fact that he is, as it were, in quarantine and could not be a commissioner for a good length of time, I thought that he was making a job application to be a commissioner, or at least the chief executive of the new organisation.
The right hon. Gentleman has a long history as a marketeer, and of telling us that salaries are set by the market. The market will determine salaries for the commission, and, as he rightly said, there are already several benchmarks. Some Home Office staff may want to transfer to the new commission. Boundary commission and Local Government Commission staff will certainly 655 wish to transfer in due course. They will provide a first benchmark, with salaries broadly in parity, although there may be variations.
Another likely benchmark will be provided in relation to deputy commissioners, who, in a sense, already exist in a different role as commissioners to the boundary commission. I cannot recall what they are paid for that task, but I shall write to the right hon. Gentleman.
We employ the Comptroller and Auditor General and the Data Protection Registrar, who provide another useful benchmark against which to set the salaries of commissioners. Finally, as the right hon. Gentleman said, the House will have to approve the figures. Decisions have not yet been taken on commissioners' salaries, and he will have an opportunity to express his views, as I am sure he will. As my hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller) said, the CAG has a supervisory role.
§ Schedule, as amended, agreed to.