HL Deb 20 November 2000 vol 619 cc556-646

4.52 p.m.

Report received.

Schedule 1 [The Electoral Commission]:

Lord Bassam of Brighton moved Amendment No. 1: Page 122, line 25, leave out sub-paragraph (1) and insert— ("(1) There shall be paid to an Electoral Commissioner such remuneration, and any such allowances or expenses, as may be specified in a resolution of the House of Commons. (1A) If a resolution of the House of Commons so provides in the case of any person who is an Electoral Commissioner or former Electoral Commissioner—

  1. (a) such amounts shall be paid towards the provision of superannuation benefits for or in respect of him as may be specified in the resolution:
  2. (b) (in the case of a former Electoral Commissioner) such pension shall be paid to or in respect of him as may be so specified.").

The noble Lord said: My Lords, this amendment and those grouped with it make a number of essentially technical adjustments to the provisions of Schedule 1. The amendments are concerned with the remuneration of electoral commissioners, deputy electoral commissioners and assistant electoral commissioners. They provide, first, that pension benefits do not have to be paid in every case. Indeed, we envisage that only the full-time chairman of the commission will receive a pension. The second purpose of these amendments is to provide for the payment of expenses in addition, or as an alternative, to the payment of allowances. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 2 to 5: Page 122, line 45, after ("paragraph") insert ("(other than by way of expenses)"). Page 122, line 46, at end insert— ("() Any amount payable under this paragraph by way of expenses shall be paid by the Commission."). Page 123, line 19, leave out sub-paragraph (4) and insert— ("(3A) The Commission shall pay to a Deputy Electoral Commissioner such remuneration, and any such allowances or expenses, as may be provided for by or under the terms of his appointment. (4) If the terms of his appointment as Deputy Electoral Commissioner so provide, the Commission shall—

  1. (a) pay towards the provision of superannuation benefits for or in respect of a Deputy Electoral Commissioner or former Deputy Electoral Commissioner such amounts as may be provided for by or under those terms;
  2. (b) pay such pension to or in respect of a former Deputy Electoral Commissioner as may be so provided.").
Page 123, line 44, after ("allowances") insert ("or expenses").

On Question, amendments agreed to.

Lord Bach moved Amendment No. 6: Page 124, line 13, leave out from ("Commission") to end of line 14 and insert ("by virtue of section 15(1) or by an order under section 17(1), 18(1) or 19(1).").

The noble Lord said: My Lords, this second group of amendments starts with government Amendment No. 6. I shall speak also to 20 other government amendments; namely, Amendments Nos. 8, 16, 31 to 34, 36, 37, 39 to 46, 268, 270, 273 and 275. I shall speak also to two opposition amendments: Amendment No. 35 tabled in the name of the noble Lord, Lord Mackay of Ardbrecknish, and Amendment No. 38 tabled in the name of the noble Lord, Lord Rennard.

The House will recall that in Committee a number of amendments were made to the Bill to clarify the relationship between the electoral commission and its four boundary committees. These further government amendments address the equally important relationship between the electoral commission and the Secretary of State, or his Scottish or Welsh counterparts.

Clauses 17, 18 and 19 provide for the transfer to the electoral commission of the functions of the Local Government Commission for England, and the Boundary Commissions for Scotland and Wales. If these functions were transferred without further ado, the electoral commission would be required to undertake reviews in accordance with directions made by the Secretary of State, or the equivalent, as is the current position.

We have made clear on a number of occasions that the electoral commission should be as independent of the government of the day as our constitutional arrangements will allow. The purpose of these amendments is therefore to set the parameters for the review of local government electoral and administrative boundaries and structural issues and then to leave it to the commission to get on with the job with minimum interference from Ministers.

Amendment No. 37 is the key provision. New subsection 1A of Clause 17 provides that an order made under subsection (1) may make provision for transferring to the commission any relevant function of the Secretary of State or for terminating or modifying any relevant function of the Secretary of State. We propose to exercise the order-making power in such a way as to confer full responsibility on the electoral commission for keeping under review electoral boundaries and, as appropriate, for giving effect to any changes to such boundaries. That will entail not only terminating the Secretary of State's powers of directions in respect of electoral reviews, but also transferring to the commission the Secretary of State's function of making statutory instruments to give effect to the conclusions of such reviews.

In the case of the review of local authority administrative boundaries or structure, we envisage that under the new arrangement the electoral commission would provide advice or undertake such reviews at the request of the Secretary of State. There will be no power to direct the commission to carry out these reviews. We would expect the Secretary of State and the commission to come to a proper understanding on the timing of any such advice or reviews. But, ultimately, it would be open to the commission to turn down a request if, for example, it had been given insufficient notice to build a particular review into its forthcoming work programme.

Once the commission had completed an administrative boundary or structural review of a particular local government area, it would submit its recommendations to the Secretary of State and it would continue to fall to him or her to give effect to recommendations. We believe that these matters are central to ensuring that there is effective local government with councils which are well placed to discharge their twin roles of community leadership on the one hand and delivery of local services on the other. As such, traditionally, and in our view properly, they have been matters in which the government of the day, whether the party opposite or ourselves, have a proper and legitimate interest. Orders changing the structure of local authorities should, as is now, be matters on which Parliament itself has the final say. It is for those reasons that we are not making provision in these amendments to change the current arrangements for the making of these orders.

That is not to say that the electoral commission, with its expertise in boundary matters, and with the force that its independent scrutiny can bring, should not have a role. Our intention is that no order relating to structure or boundaries should be able to be made by the Secretary of State, or indeed a draft of such an order laid before the House by the Secretary of State, unless he has sought and obtained the electoral commission's advice on the changes concerned.

Moreover, it is our intention to use our order-making powers provided for by these amendments to so modify the existing legislation that it would not be possible for the Secretary of State to propose to Parliament a structural change, or to make a boundary change, which was contrary to the advice he or she had received from the electoral commission.

In that way we seek to maintain the right balance: on the one hand, providing for an appropriate input into decision making on these matters by the Secretary of State and, on the other, ensuring equally that, as appropriate, the independent electoral commission, and indeed this House and another place, can make their input. Our intention therefore is that nothing can be done which runs counter to the advice of the commission or the will of Parliament.

We recognise that as a result of these changes the scope of the order-making power in Clause 17 is such as to warrant the affirmative resolution procedure. Amendment No. 268 makes the appropriate adjustment to Clause 153.

The amendments to Clauses 18 and 19 make broadly equivalent provision in respect of Scotland and Wales. I should emphasise that whether or not the functions of the Local Government Boundary Commissions for Scotland and for Wales are transferred to the electoral commission will be a matter for the Scottish Executive and the Welsh National Assembly respectively.

The amendments to Schedule 3 are in a similar vein. As Section 3 of the Parliamentary Constituencies Act 1986 stands, the Secretary of State may modify the recommendations of the Parliamentary Boundary Commissions before laying a draft order before Parliament giving effect to those recommendations. Again, it would not be in keeping with the independent status of the electoral commission if this power to modify its recommendations in respect of parliamentary constituencies were retained. Accordingly, the amendments to Schedule 3 have the effect of requiring the Secretary of State to lay before Parliament a draft order which gives effect to the committee's recommendations without modifications.

The other government amendments in this group are essentially consequential upon the ones I described. I hope that the noble Lord, Lord Rennard, will accept that our amendments achieve much the same end as his Amendment No. 38, although perhaps not going as far as he would like. Similarly, I hope that the noble Lord, Lord Mackay, may be prepared not to move his amendment in favour of our Amendment No. 34, which addresses the same drafting point left over from Committee. I beg to move.

5 p.m.

Lord Mackay of Ardbrecknish

My Lords, we are grateful to the noble Lord, Lord Bach, for that explanation, and perhaps for slowing down the tempo of the beginning of this Report stage which was just beginning to run away with at least government Ministers as to exactly where we were.

Perhaps I may dispose of my amendment first. It was tabled because we noticed that the Government had omitted to table an amendment in similar terms. That has now been corrected with the tabling of Amendment No. 34, and I am content. I hope that I receive a letter of thanks for reminding the Government of the need to table this amendment.

I want to make just one point, which is not really one for the noble Lord, Lord Bach, but for others to read. It is that I hope that the Scottish Executive and the Welsh Assembly will transfer the same powers to the electoral commission. I fully understand why it is up to them to make those decisions for themselves, but I hope that the powers will be transferred. That would be a sensible way to have a more uniform position on looking at electoral boundaries throughout the United Kingdom.

It is also important because so often decisions about local government boundaries—I am not talking about the boundaries of local authorities, but about the electoral boundaries within local authorities—are followed by the Parliamentary Boundary Commission, sometimes mistakenly. That can lead to considerable numerical imbalances between one constituency and another, which I feel is wrong.

It is important therefore for the electoral commission to have overall responsibility for parliamentary boundaries. It is important also for it to have responsibility for local government boundaries. It will have that in England. I hope that my friends in Scotland and Wales will read what I say and follow suit.

Lord Rennard

My Lords, I welcome the amendments in this group which were tabled by the Government and which concern the relative powers of the electoral commission and the Secretary of State in relation to local government boundary reviews. That relationship is, of course, subject to Amendment No. 38 in my name and that of my noble friend Lord McNally.

As originally drafted, the Bill was inconsistent in giving the electoral commission powers over parliamentary boundaries, but leaving the Secretary of State with responsibility for local government and ward boundaries. It is generally agreed that the electoral commission is intended to have substantial independence. Its role will be supervised not by the Government, but by the proposed Speaker's committee. It would therefore have been somewhat incongruous for the committee to be subject to the direction of the Secretary of State with regard to its local government electoral functions.

In the previous Parliament we witnessed manipulation by the Conservative government of local government boundaries in Scotland in a vain attempt to secure for the Conservative Party control of at least one Scottish council and perhaps the parliamentary seat if parliamentary boundaries were then to be redrawn along the lines of local government boundaries.

Lord Mackay of Ardbrecknish

My Lords, perhaps the noble Lord will explain exactly what he means by his last few sentences. Can he explain where, when and how, if he does not mind?

Lord Rennard

My Lords, I am happy to do so. There was a great deal of controversy about the local government boundaries in Scotland prior to the previous general election campaign and the creation of the new unitary councils in Scotland, and the one based largely around the Eastwood constituency was clearly being created by the then Conservative government to try and create one council which the Conservative Party might be able to hold. Indeed, it failed to do so in the Scottish councils elections, despite the fact that the boundaries had been arranged in such a way as to favour the Conservative Party.

My point is simply that the rearrangement of local ward boundaries should not be in the hands of any specific Secretary of State, but in the hands of the electoral commission.

Lord Mackay of Ardbrecknish

My Lords, I notice that the noble Lord is introducing a party-political slant to this debate. But will he accept that that particular local authority was already a district council authority and therefore the provision was not as illogical or as politically motivated as the noble Lord seems to think?

Lord Rennard

My Lords, I believe that it is right that at the time there was a suggestion that the Conservative government were interfering with the boundaries in a way that would be improper and it is only right that in future the electoral commission should deal with those issues rather than a government of any party. It would not be right if the commission did not have such powers and it continued to be responsible to the Secretary of State for these matters.

At present the Secretary of State has considerable powers over the local government commission. At present he has the power to direct the commission to undertake reviews and to have regard to guidance he or she may issue, and has the ultimate power to approve, reject or amend the commission's proposals without reference to Parliament. The new commission, established with a wide remit over electoral matters, should not have its work on local government reviews subject to the direction of, and approval by, the Secretary of State.

The Secretary of State does not have such powers in relation to the Parliamentary Boundary Commissions. So if modifications to the Parliamentary Boundary Commission proposals are proposed by the Secretary of State, for which there is no known precedent, he or she must not only explain the reasons for them, but also the draft order must be debated and approved by both Houses of Parliament. The same principle should now apply for local government.

I thank the Government for thinking again about this issue and changing the commission's remit in this area. I confirm that I shall not move Amendment No. 38.

Lord Bach

My Lords, I am grateful to noble Lords who have spoken. As to the issue between them, the Government could not possibly comment—or chooses not to on this occasion. Indeed, it is something of a relief for the Government not to have to comment on such an issue.

I am grateful to both noble Lords, with their experience of local government and elections generally. I am sure that the noble Lord, Lord Mackay of Ardbrecknish, will be heard and read in Scotland; and we are grateful for the support of the noble Lord, Lord Rennard.

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 7: Page 124, line 33, leave out ("3(4)(b)") and insert ("3(4)(a)").

The noble Lord said: My Lords, we discussed in Committee and agreed that the electoral commission should be and should be seen to be independent of political parties. The whole House will agree with that proposition. That is why in Committee the Government inserted provisions into the Bill which disqualify a person from being appointed an electoral commissioner if he is a member of a political party, or if he is, or has recently been, an officer of, or a large donor to, a political party.

Schedule 1 extends those disqualifications to the chief executive of the commission, who will be the senior paid public official in charge of elections in the whole of the United Kingdom, and to members of the commission staff. The post of chief executive will be significant and will carry significant powers and responsibilities. It is right that whoever holds those posts should be politically neutral, as should the staff of the commission.

However, that extension of the disqualifications to the chief executive and the staff is incomplete. It does not include first and arguably the most important element which will apply to the commissioners; namely, current membership of a political party. In this Bill, we are placing restrictions on the electoral commissioners as to their membership of political parties but are not applying the same rule to members of the commission's paid service. That seems strange. My amendment would apply to the chief executive and the staff of the commission the full range of restrictions which will apply to the commissioners.

When I raised the issue on 11th May (col. 1763), the Minister said: My understanding is that staff at all levels with: n the organisation, including the chief executive, may be members of political parties". He went on to say: I shall endeavour to take up the point made by the noble Lord, Lord Mackay, with regard to the chief executive having a party affiliation. I take note of the noble Lord's concern. However, I believe that in the real world many chief executives or leading civil servants may have undeclared party memberships. Who are we to say that they should cease to hold party membership?".—[Official Report, 11/5/00; cols. 1767–70.] I take the noble Lord's point, but I do not believe that there are direct analogies with other areas of the public service and I want to explain why.

To what extent will the staff of the commission be barred from act of involvement in politics? That seems to me to be the main question. It would appear that under the Bill the staff will be able to be members of a political party. Will that allow them to engage in campaign activity or are they to be barred from doing that? It would be preferable for them to be—and, crucially, seen to be—above involvement in party politics.

I hope that the Minister can tell us that during the past six months the Government have given detailed consideration to these issues, as I was promised they would. There is little precedent for the powers that the commission will have: powers which on a day-to-day basis will be exercised on the ground by the chief executive and by other members of the commission staff. They will have the power to go through the accounting records of political parties and to question members of their staff. They will have early sight of reports of donations because they will go to them before being made public. Their opinion about those and other issues will influence the way in which commission members are briefed.

I do not believe that it would be perceived as fair by the political parties if they discover that they are giving detailed confidential and privileged information about their finances to people who are members of rival parties and who therefore may be seen to be possibly biased, even if they are not biased in practice.

There is a compelling reason why the analogy drawn by the Minister on 11th May is invalid. In no other area of the public sector service are such sweeping powers of investigation into and regulation of political parties given to officials who may be members of rival parties. That is what the Bill does. The electoral commission will regulate political parties. It will not be doing other work; it will be directly regulating political parties.

I am sure that Ministers agree that this is uncharted territory. It seems to me crucial that the officials of the commission, as well as the commission itself, are seen to be above party politics. I believe that if they are not seen to be above party politics, confidence in the working of the commission will be reduced. The situation which could be created by the Bill as drafted would be very difficult. I hope that the Minister, from his thoughts since the matter was first raised last May, can give me reassurances. However, I am concerned that without the amendment standing in my name, and even with the Minister's reassurance, it will be a distinct possibility that a political party could be giving confidential information to an official of the commission who is a member of another political party. I do not believe that that is a satisfactory position and I commend my amendment to the Government and the House. I beg to move.

5.15 p.m.

Lord Sanderson of Bowden

My Lords, I had not intended to speak in the debate but I want to support my noble friend most strongly. The most important point is that if the electoral commission is to have respect, it must be, and be seen to be, above reproach. I should have thought that my noble friend's amendment does just that. It will not be popular with the public if, as has happened in the United States, there are seen to be political affiliations which can have a bearing on the result of an election.

Lord McNally

My Lords, the noble Lord, Lord Sanderson, is probably right in saying that the amendment has greater strength since events across the Atlantic where election officers are quickly identified as registered Democrats or Republicans and doubt is cast on their impartiality. The argument against the chief executive being a registered party member has considerable merit.

My only concern is that in recent years we have tried to encourage the participation of public officials in political parties and tried to remove some of the too restrictive rules in various areas of the public service. I wonder whether the noble Lord's amendment, which would apply to staff at all levels, takes matters too far the other way.

Lord Bach

My Lords, as the noble Lord, Lord Mackay, explained, the amendment is concerned with whether or not a member of the electoral commission staff can be a member of a political party. He has obviously concluded that the staff as well as the commissioners should be barred from belonging to a registered party. After consideration, we believe that that would be going too far and would be an unnecessary and unjustifiable restriction.

One of the reasons for that belief was given by the noble Lord in the Committee debate to which he referred. The noble Lord advised us to check, whether saying that they cannot be members of a political party actually breaches the convention".—[Official Report, 11.5.00; col, 1764.] We had already considered that point and reached the conclusion that there was no necessity to prohibit party membership as regards the staff such as to justify the undoubted restriction that we would be placing on their convention rights.

The noble Lord draws a distinction between civil servants, however senior or sensitive their posts, who can be members of a political party. That is true about senior local government officials, too. We do not believe that there is a sufficient distinction between the role of, say, a junior member of staff at the electoral commission and a senior civil servant such that the first cannot be a member of a political party but the second can. We do not believe that there is sufficient justification to treat the staff of the commission differently.

I remind the House that local authorities, and no doubt also the Civil Service, have already adopted rules which mean that those who are members of a political party cannot play an active role in its activities. That is also true of the electoral staff of local authorities who are not barred from membership of political parties. Their position in some ways will be parallel to that of the staff of the electoral commission when they take up their posts.

We do not believe there is any doubt that the commission will adopt rules similar to those introduced for civil servants to restrict the political activities of its staff, and for their limited part in this the Government will certainly advise it to do so. A balance must be struck here. Many of the points raised by the noble Lord are valid, but I believe that on balance the line comes down in favour of allowing staff to be members of political parties, and I hope that the noble Lord will withdraw his amendment.

Lord Mackay of Ardbrecknish

My Lords, if I heard the Minister correctly—I found it difficult to follow his argument—he confirmed that if the staff of the commission were banned from political membership that would not be a breach of their convention rights.

Lord Bach

My Lords, perhaps I was not as clear as I should have been. We believe that it may be a breach of their rights and that almost certainly the matter will be tested in the courts. We do not go as far as to say that it would definitely be a breach: that is not the advice that we have received.

Lord Mackay of Ardbrecknish

My Lords, if someone who is a member of a political party wants to join the staff of the commission but is not allowed to do so because my amendment is accepted, and he takes the commission, or perhaps the Government, to court because of an infringement of his convention rights, I wonder why such a person is so keen to be a member of staff of the commission.

The Minister tried hard to deal with my points, but he did not answer the real question. This commission is not like any other part of the Civil Service. The commission will send out its staff to obtain information from political parties. It could easily happen that a member of the commission's staff who was also a member of the Labour Party visited the headquarters of the Conservative Party at Smith Square in order to obtain information which might or might not be confidential.

Lord Bassam of Brighton

My Lords, does the noble Lord accept that in some ways members of staff employed in an electoral registration office who were also members of political parties might obtain quite sensitive political information about other political parties? Sometimes they are in a sensitive position but no one has questioned their integrity.

Lord Mackay of Ardbrecknish

My Lords, I do not agree with the Minister. I cannot think of anything that an electoral registration officer wants to discover from a political party that that party may regard as confidential in the sense of its operations, funding or whatever. I do not believe that there is any analogy. I am very unhappy about this matter, especially as I appear to have discovered in passing that the chief executive could also be a member of a political party. I believe that that is beyond the pale. The Government have not thought this through sufficiently carefully. They agree that the members of the commission should not be members of political parties but suddenly stop and do not take the next logical stop. This matter is so important that I must ask the opinion of the House.

5.25 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 108; Not-Contents, 153.

Division No. 2
Alton of Liverpool, L. Liverpool, E.
Anelay of St Johns, B. Lucas, L.
Astor, V. Lyell, L.
Astor of Hever, L. McColl of Dulwich, L.
Attlee, E. Mackay of Ardbrecknish, L.
Blatch, B. Mancroft, L.
Boardman, L. Marsh, L.
Brabazon of Tara, L. Molyneaux of Killead, L.
Brougham and Vaux, L. Monro of Langholm, L.
Burnham, L. [Teller] Monson, L.
Butterworth, L. Montrose, D.
Campbell of Alloway, L. Moynihan, L.
Campbell of Croy, L. Murton of Lindisfarne, L.
Carnegy of Lour, B. Naseby, L.
Chadlington, L. Noakes, B.
Coe, L. Northbrook, L.
Colwyn, L. Northesk, E.
Cope of Berkeley, L. Norton of Louth, L.
Courtown, E. O'Cathain, B.
Cranborne, V. Onslow, E.
Crickhowell, L. Oppenheim-Barnes, B.
Cumberlege, B. Palmer, L.
Dean of Harptree, L. Park of Monmouth, B.
Deedes, L. Pearson of Rannoch, L.
Dixon-Smith, L. Perry of Southwark, B.
Dundee, E. Pilkington of Oxenford, L.
Eccles of Moulton, B. Prentice, L.
Eden of Winton, L. Rawlings, B.
Elles, B. Rees, L.
Elliott of Morpeth, L. Rees-Mogg, L.
Elton, L. Renton, L.
Fookes, B. Roberts of Conwy, L.
Freeman, L. Rotherwick, L.
Gardner of Parkes, B. Ryder of Wensum, L.
Geddes, L. Sanderson of Bowden, L.
Glentoran, L. Seccombe, B.
Goschen, V. Selborne, E.
Gray of Contin, L. Sharples, B.
Greenway, L. Shaw of Northstead, L.
Hanson, L. Shrewsbury, E.
Henley, L. [Teller] Slim, V.
Higgins, L. Soulsby of Swaffham Prior, L.
Hodgson of Astley Abbotts, L. Stewartby, L.
Hooper, B. Strange, B.
Howe, E. Strathclyde, L.
Howell of Guildford, L. Tebbit, L.
Hunt of Wirral, L. Thomas of Gwydir, L.
Hurd of Westwell, L. Trefgarne, L.
Inglewood, L. Vivian, L.
Jopling, L. Waddington, L.
Knight of Collingtree, B. Wakeham, L.
Laird, L. Weatherill, L.
Lamont of Lerwick, L. Willoughby de Broke, L.
Lawson of Blaby, L. Young, B.
Acton, L. Bach, L.
Addington, L. Barnett, L.
Amos, B. Bassam of Brighton, L.
Andrews, B. Beaumont of Whitley, L
Archer of Sandwell, L. Berkeley, L.
Ashley of Stoke, L. Bernstein of Craigweil, L.
Ashton of Upholland, B. Billingham, B.
Blackstone, B. Lipsey, L.
Blease, L. Lockwood, B.
Borrie, L. Lofthouse of Pontefract, L.
Bradshaw, L. Longford, E.
Bragg, L. Macdonald of Tradeston, L.
Brennan, L. McIntosh of Haringey, L. [Teller]
Brett, L.
Brooke of Alverthorpe, L. McIntosh of Hudnall, B.
Brookman, L. MacKenzie of Culkein, L.
Brooks of Tremorfa, L. Mackenzie of Framwellgate, L
Burlison, L. McNally, L,
Carter, L. [Teller] Maddock, B.
Chandos, V. Mallalieu, B.
Christopher, L. Mason of Barnsley, L.
Clarke of Hampstead, L. Massey of Darwen, B.
Cledwyn of Penrhos, L. Merlyn-Rees, L.
Clement-Jones, L. Mitchell, L.
Clinton-Davis, L. Morris of Manchester, L.
Cocks of Hartcliffe, L. Newby, L.
Cohen of Pimlico, B. Northover, B.
Crawley, B. Paul, L.
David, B. Peston, L.
Davies of Coity, L. Plant of Highfield, L.
Davies of Oldham, L. Prys-Davies, L.
Desai, L. Puttnam, L.
Dholakia, L. Ramsay of Cartvale, B.
Dixon, L. Randall of St. Budeaux, L.
Dubs, L. Razzall, L.
Eatwell, L. Rea, L.
Elder, L. Rennard, L.
Evans of Temple Guiting, L. Renwick of Clifton, L.
Falconer of Thoroton, L. Richard, L.
Farrington of Ribbleton, B. Rodgers of Quarry Bank, L.
Faulkner of Worcester, L. Roper, L.
Gale, B. Russell, E.
Gibson of Market Rasen, B. Sainsbury of Turville, L.
Gilbert, L. Sawyer, L.
Goodhart, L. Scotland of Asthal.B.
Goudie, B. Scott of Needham Market, B.
Gould of Potternewton, B. Serota, B.
Gregson, L. Shepherd, L.
Grenfell, L. Shore of Stepney, L.
Hamwee, B. Shutt of Greetland, L.
Hardy of Wath, L. Simon, V.
Harris of Greenwich, L. Smith of Gilmorehill, B.
Harris of Haringey, L. Stoddart of Swindon, L.
Harris of Richmond, B. Stone of Blackheath, L.
Harrison, L. Strabolgi, L.
Haskel, L. Symons of Vernham Dean, B.
Hayman, B. Taverne, L.
Hilton of Eggardon, B. Taylor of Blackburn, L.
Hogg of Cumbernauld, L. Tomlinson, L.
Hollis of Heigham, B. Tordoff, L.
Howells of St. Davids, B. Turnberg, L.
Howie of Troon, L. Turner of Camden, B.
Hoyle, L. Uddin, B.
Hughes of Woodside, L. Varley, L.
Hunt of Kings Heath, L. Walker of Doncaster, L.
Irvine of Lairg, L. (Lord Chancellor) Wallace of Saltaire, L.
Walmsley, B.
Islwyn, L. Warner, L.
Jacobs, L. Warwick of Undercliffe, B.
Janner of Braunstone, L. Wedderburn of Charlton, L.
Jay of Paddington, B. (Lord Privy Seal) Whitaker, B.
Whitty, L.
Jenkins of Putney, L. Wilkins, B.
Judd, L. Williams of Crosby, B.
King of West Bromwich, L. Williams of Elvel, L.
Kirkhill, L. Williams of Mostyn, L.
Layard, L. Williamson of Horton, L.
Lea of Crondall, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.35 p.m.

Lord Bach moved Amendment No. 8: Page 126, line 13, after ("by") insert ("the Secretary of State under section 17(6) or").

On Question, amendment agreed to.

Clause 3 [Appointment of Electoral Commissioners and Commission chairman]:

Viscount Astor moved Amendment No. 9: Page 3, line 4, after ("officer") insert ("or employee").

The noble Viscount said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 10, 11 and 12. Amendments Nos. 9 and 10 address what appears to be an inconsistency in drafting between Clause 3 and Schedule 1. I hope that the Minister will be able to tell the House that it is an unintended inconsistency rather than anything more sinister.

Paragraphs (a) and (d) of Clause 3(4) provide that a person cannot be appointed an electoral commissioner if he is or has been at any time within the preceding 10 years an officer of a registered party or accounting unit. However, paragraph 3 (3)(b) of Schedule 1 states that an electoral commissioner shall cease to hold office if, he takes us any office or employment in or with … a registered party or any accounting unit". The distinction is made in the schedule between the terms "office" and "employment" but it is not made in Clause 3.

There is certainly a distinction between being an officer of a party, which presumably means someone who holds a quite senior post—perhaps one mentioned in the party's constitution and indeed unpaid—and being an employee. If the noble Baroness, Lady Gould, were in her place, I might say that in the past she had been an officer of the Labour Party whereas Mr Alastair Campbell and Mr Charlie Whelan could have been described as "employees" when the party was in opposition. Under my reading of the Bill, the noble Baroness would therefore be disqualified from appointment to the commission, but Mr Campbell and Mr Whelan, despite their highly political roles, would not be. Are we to conclude that an electoral commissioner may be forced to resign if he takes up employment with a party, but it is all right for him to be appointed a commissioner if he is a party employee, even one with an overtly political role, at the time of his appointment or if he has been employed by a party in the recent past?

I hope that this is just poor drafting and that that is not the Government's intent. I hope that my amendments will be accepted as they seek to make the Bill clearer and more acceptable.

There are other inconsistencies in the Bill which I trust the Minister will address. In the schedule, the list of things that will terminate a commissioner's appointment includes his taking up office or employment with a recognised third party or a permitted participant in a referendum. However, in Clause 3, the disqualification from appointment in the first place applies only to office held in registered parties and their accounting units. Are we to read into that that a commissioner can hold or can have held office with a third party or a referendum participant on his appointment, or is that what I would describe as inconsistent drafting? What about officers of members' associations? Should not they be included in both definitions as well?

Again, the schedule provides that a commissioner's appointment ends if he becomes a candidate at an election. However, there is nothing in Clause 3 to prevent his appointment if he has been a candidate in the recent past; only if he was actually elected would he fall within the provisions of subsections (4)(c) and (4)(d). I should be grateful for clarification from the Minister as to whether he considers that the drafting is correct or whether he considers that there is a loophole.

Amendment No. 11 would extend the disqualification which applies to past political activity to membership of a political party, as well as to that of holding office or donating. We suggest that someone who is a member of a political party should not be appointed, unlike the other criteria for disqualification which do not extend all that far back into the past. The current drafting suggests that it is not necessary for someone to hold office in a party to have a significant political profile, either locally or nationally. For example, someone might be the head of a members' organisation such as the Fabian Society or the Tory Reform Group; that person would not in fact hold office within the party itself. Perhaps the Minister will consider the matter a little further. This amendment is of a probing nature. I wish to understand the Government's thinking here and I seek reassurance that they have drafted this part of the Bill correctly.

I shall turn now to Amendment No. 12. This would provide that no person could hold office as an electoral commissioner for more than 15 years. I accept that that is an arbitrary figure and that commissioners could he appointed for up to 10 years in the first instance in order to achieve the security of tenure intended by the Neill committee. My amendment seeks to establish how long the Government intend that a commissioner should serve and how often he could be reappointed. As the Bill stands, a person could be reappointed for three full terms and thus would serve for 30 years. I am sure that the noble Lord would agree that that is rather a long time for anyone to undertake one job. Obviously we need commissioners who have gained experience, but it is equally important to make available to the commission opportunities to introduce fresh talent and expertise at reasonable intervals.

It is important, when we consider the Bill as a whole, to ensure that the role of the commissioners is properly fulfilled. To that end, Amendment No. 12 seeks to clarify the Government's thinking in this important area. I beg to move.

Lord Hodgson of Astley Abbotts

My Lords, I should like to support my noble friend in these amendments. In particular, I wish to add my support to Amendment No. 12, which deals with the length of service of electoral commissioners. The Bill concerns freshness and transparency. To that end, we should like to receive a clear statement from the Government as regards how long they anticipate that electoral commissioners should hold office.

Given that the Government have refused to accept the cogent arguments put forward by my noble friend on the previous amendment, on which we have just divided, we wish to be able to distinguish clearly the lines drawn between those operating within the commission and outside the commission; namely, what they can and cannot do. I look forward to the Minister's response.

5.45 p.m.

Lord Bach

My Lords, in Committee we discussed the question of whether people should be debarred from being commissioners or members of the commission's staff by reason of political affiliations. The restrictions now contained in subsection (4) of Clause 3, which has been referred to by the noble Viscount, were added to the Bill at our instigation at that stage. Some reservations were expressed about what we are proposing here. However, those reservations seem now to have disappeared.

I shall work through the amendments and explain to noble Lords the Government's thinking on these matters. First, I should say that there is no great gulf between the Government and the Opposition Front Bench as regards the issues raised by these interesting amendments. I shall be suggesting that the majority of the amendments—or perhaps half of them—are unnecessary or mildly undesirable. However, I note that those amendments are of a probing nature in order to establish the Government's point of view on the issues raised. Indeed, it may be that, once he has heard my reply, which will not be overly long, the noble Viscount might not feel the need to press them further if he achieves most of what he seeks here.

Amendment No. 9 would prevent a person from being a commissioner at the same time as being an employee, and not merely an officer, of a registered party. Here, we can change our tune. If I wanted to advise the House to reject the amendment, I would have to explain the difference between an officer and an employee and why one of these things was compatible with being a commissioner but not the other. Both those tasks are well beyond me and therefore I recommend to the House that it should agree with the noble Viscount's amendment.

Amendment No. 10 would make it impossible for a person to be appointed as a commissioner if he or she had been an employee and not merely an officer of a party within the previous 10 years. We have thought a little longer about this amendment because it could be argued that some kind of employment, perhaps as a manager in information technology, for example, would not necessarily connote any real association with the party's political position. However, bearing in mind the generous nature of the Government Front Bench this afternoon, I am not minded to oppose this amendment either.

However, as regards Amendment No. 11, I am afraid that the honeymoon is over and I must revert to type; namely, to the posture of the Government defending the Bill—probably rightly so here. The amendment would make it impossible for a person to be appointed as a commissioner if he or she had been a member of a party within the previous five years. We think that that goes too far. We accept that, as the Bill already requires, a commissioner should have to resign from any membership of a party on appointment. We think that that requirement is quite justifiable, for commissioners as opposed to staff members, so as to avoid the possibility of any enduring conflict of interest. But we do not think that previous membership, unaccompanied by the holding of any political office, need be an absolute bar. We think that it would require a great deal of justification to impose a stiffer test in this regard for membership of the commission than, for example, for appointment as a High Court judge, where the same rule would not apply. For that reason, I would ask the noble Viscount not to press his amendment.

I shall turn finally to Amendment No. 12. This would impose an overall limit of 15 years on the period for which a person could serve as a commissioner. I shall say again that there is no great gulf between our attitudes on this point. The Government agree that very long service as an electoral commissioner would be undesirable in most cases. We shall ourselves be following that principle when we put forward those selected for initial appointment. Indeed, if we were to set a statutory maximum—although I should state that we do not support setting such a limit—it might be open to question whether 15 years was not in any event on the long side, as the noble Viscount suggested when he spoke to the amendment. In our view that would certainly send the wrong signal if, as sometimes happens, the maximum came to be regarded as the norm.

On the other hand, there may be cases in which someone has become a lynchpin of the commission and it was agreed all round that it would be of benefit for them to serve longer. We feel that this is a matter best left to the good sense of the government of the day. However, that would apply not only to the government, but to the judgment of another place. I should remind noble Lords that another place has to agree on a reappointment to the commission. Thus, having explained briefly to noble Lords our thinking on this issue, I am sure that it is clear that we are not all that far apart here. However, we do not feel that it is necessary for the maximum period to be set down in law. Given that, I would ask the noble Viscount not to press his amendment.

Viscount Astor

My Lords, perhaps I may start with Amendments Nos. 9 and 10. I am grateful to the Minister for accepting these two amendments. I am glad that I have been able to aid him in the drafting of a Bill and I am delighted with the Government's response.

I shall turn first to Amendment No. 12. I thought that the Minister's response here was extremely helpful and gave good guidance to noble Lords. I shall not move the amendment because I am happy to accept what he said; it has been most helpful in explaining the Government's position.

As regards Amendment No. 11, I accept that in such instances it is difficult to impose an absolute bar on membership of a political party. I listened carefully to what the Minister said. Perhaps he can help the House on this matter. Often in these cases, membership of a political party may mean only that one gets a card through the post stating, "You are a member of this political party"; on the other hand, it may mean something more. Will there be any guidance in relation to this? Will the Government offer a view of where the cut-off will be? It will be difficult because every instance may be different, but will a person elected to the commission be able to go to someone and say, "This is what I have done in the past; what do you think? Does this go beyond ordinary membership of a party and constitute an active political role?"? It would be useful if the Minister could briefly comment on that issue.

Lord Bach

My Lords, I cannot comment because I have not received any advice on the issue, but if someone had been a member of a particular party and was about to be appointed a commissioner, I think it unlikely that there would not be some questions about what his role had been, when he had resigned from the party, and basically how active he had been. I should have thought that was common sense.

Viscount Astor

My Lords, that is an extremely helpful answer. I am grateful to the Minister.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 10: Page 3, line 9, after ("officer") insert ("or employee").

On Question, amendment agreed to.

[Amendments Nos. 11 and 12 not moved.]

Lord Bach moved Amendment No. 13: Page 3, line 25, leave out ("(3)(b)") and insert ("(4)(b)").

The noble Lord said: My Lords, in moving Amendment No. 13, I shall speak also very briefly to Amendments Nos. 124, 135, 136, 144, 161, 162, 190, 191, 207, 208 and 213, which are all government amendments.

These amendments, by and large, simply correct a number of erroneous cross-references which appeared in the changes made to the Bill in Committee. The amendment to Clause 67 in Amendment No. 124 is consequential upon the insertion in Committee of paragraph 3 of Schedule 6, which relates to the information about the identity of a donor which parties must supply in weekly donation reports. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 14: After Clause 3, insert the following new clause—

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