Political Parties, Elections and Referendums Bill
4:45 pm
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
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--
(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;
(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.").
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
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.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
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--
(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;
(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 (Government Whip (technically a Lord in Waiting, HM Household); Labour)
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.
Lord Mackay of Ardbrecknish (Crossbench)
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 (Liberal Democrat)
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 (Crossbench)
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 (Liberal Democrat)
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 (Crossbench)
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 (Liberal Democrat)
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 (Government Whip (technically a Lord in Waiting, HM Household); Labour)
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.
Lord Mackay of Ardbrecknish (Crossbench)
moved Amendment No. 7:
Page 124, line 33, leave out ("3(4)(b)") and insert ("3(4)(a)").
Lord Mackay of Ardbrecknish (Crossbench)
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 within 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.
Lord Sanderson of Bowden (Conservative)
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 (Liberal Democrat)
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 (Government Whip (technically a Lord in Waiting, HM Household); Labour)
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 (Crossbench)
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 (Government Whip (technically a Lord in Waiting, HM Household); Labour)
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 (Crossbench)
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 (Parliamentary Under-Secretary, Home Office; Labour)
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 (Crossbench)
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.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
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 (Conservative)
moved Amendment No. 9:
Page 3, line 4, after ("officer") insert ("or employee").
Viscount Astor (Conservative)
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 be 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 (Conservative)
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.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
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 (Conservative)
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 (Government Whip (technically a Lord in Waiting, HM Household); Labour)
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 (Conservative)
My Lords, that is an extremely helpful answer. I am grateful to the Minister.
Viscount Astor (Conservative)
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 (Government Whip (technically a Lord in Waiting, HM Household); Labour)
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.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
moved Amendment No. 14:
After Clause 3, insert the following new clause--
:TITLE3:PARLIAMENTARY PARTIES PANEL
(" .--(1) There shall be a panel (to be known as "the Parliamentary Parties Panel") which consists of representatives of qualifying parties appointed in accordance with this section.
(2) The function of the panel shall be to submit representations or information to the Commission about such matters affecting political parties as the panel think fit.
(3) Where the panel submit any such representations or information to the Commission, the Commission shall--
(a) consider the representations or information, and
(b) decide whether, and (if so) to what extent, they should act on the representations or information.
(4) Each qualifying party shall be entitled to be represented on the panel by a person appointed to the panel by the treasurer of the party.
(5) Subject to subsection (6), a person so appointed shall be a member of the panel for such period as the treasurer of the party may determine when making the appointment.
(6) A person so appointed shall cease to be a member of the panel if at any time--
(a) his appointment is terminated for any reason by the treasurer of the party, or
(b) the party ceases to be a qualifying party.
(7) The panel may determine their own procedure.
(8) The validity of any proceedings of the panel shall not be affected by any failure by the treasurer of a qualifying party to make any appointment in accordance with this section.
(9) In this section "qualifying party" means a registered party--
(a) to which two or more Members of the House of Commons for the time being belong; or
(b) to which two or more such Members belonged immediately after the most recent parliamentary general election.").
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, Amendment No. 14 is an important amendment, but one which I am confident will be supported across the House.
I start with why the new clause is being brought forward. On Second Reading, I signalled the Government's intention to bring forward amendments to ensure that the membership of the electoral commission would consist of people who were not associated with political parties. Those amendments, which were very similar to ones moved by the Official Opposition in another place, were duly brought forward in Committee and were passed into the Bill. Essentially, they constitute what is now subsection (4) of Clause 3.
I might add that, with the passage of time, our conviction that it ought not to be possible to associate members of the electoral commission with any political party has grown stronger rather than weaker. Events on the other side of the Atlantic have reinforced our conviction. At every twist and turn we have seen someone with a party tag to their name and it has not done a great honour to the electoral process as a consequence. We should not go any further in jumping on the grave of an electoral system; nevertheless the point is worth making.
Having said that, it was clear both at Second Reading and in Committee that noble Lords were not without some qualms. The concern expressed was that the more impeccable the credentials of the electoral commissioners from the point of view of political impartiality, the less likely they were to have hands-on experience of the political process from the point of view of the parties. That point was echoed on all sides of the House.
The proposed new clause is designed to meet this point, and to meet it head on. It provides a forum and a legitimate opportunity for the political parties collectively to put their points to the electoral commission and to have them considered. The panel will not, of course, be in the nature of a supervisory body; nor is it considered wise to have it as a formal advisory body in the sense that the commission cannot proceed without consulting the panel and, by implication, clearing its proposals through it. The commission will, of course, wish to consult on general matters, but it will obviously cast its net a good deal wider than the handful of political parties represented on the panel. If we were setting up a formal advisory panel, its membership would have to be expanded rather more widely.
There would also be a risk of appearing to set up almost an alternative electoral commission. It is for this reason that I cannot accept Amendment No. 14A, which has been brought forward by the noble Lord, Lord Norton, as an amendment to the government amendment. The panel is designed simply to allow the parties to discuss matters collectively and to engage with the commission if they wish to do so. No doubt it will take notice of the commission's work programme and decide what input it wishes to make. We have not sought to circumscribe in any way the matters on which the panel can engage with the commission. The commission will have to give due consideration to any points put to it but will not, of course, be bound by them.
We have not thought it necessary to provide more than a minimal structure for the commission. It will be open to any party with two Members in the House of Commons to nominate a member of the panel. To extend that opportunity to every registered party would make the panel unmanageable. Procedure is to be entirely in the panel's own hands. In the first instance, it would no doubt be helpful if one of the major parties were to get the ball rolling.
Nor do we think it necessary to provide any logistical or financial support. This is not a new quango. Representatives of the parties get together at present on matters of common concern. The new clause simply provides a new forum for them to do so, and gives a legitimacy to any interaction which they have with the electoral commission.
I believe that the new clause responds appropriately to concerns expressed at earlier stages of the Bill and I commend it to the House.
I must also deal with the amendment to the amendment, tabled by the noble Lord, Lord Mackay and the noble Viscount, Lord Astor. Its effect would be to exclude from the club, if I may put it that way, parties whose members have not taken the Oath. We have done that in other contexts in other parts of the Bill but we have not included it here. In case anyone should think otherwise, that is not a mere oversight on the Government's part but a deliberate decision. The panel is not primarily a parliamentary body. The requirement to have two Members in the House is primarily a means of limiting the membership of the panel to manageable proportions compared with opening it up to every registered party. So there is no inherent reason why any party which has had Members elected to another place should be excluded. I beg to move.
Lord Norton of Louth (Conservative)
moved, as an amendment to Amendment No. 14, Amendment No. 14A:
Line 12, at end of subsection (3) insert--
("( ) The Commission may seek the advice of the panel on matters affecting political parties as the Commission thinks fit.").
Lord Norton of Louth (Conservative)
My Lords, I welcome the fact that the Government have tabled Amendment No. 14. As the Minister said, it has been brought forward to meet the point made in Committee on 11th May that members of the commission will have no grounding--certainly no recent grounding--in party political activity. I and several other noble Lords made that point and I welcome the amendment brought forward by the Government.
My amendment to the Minister's amendment is, I think, self-explanatory. Under the Minister's amendment, the parliamentary parties panel will be empowered to submit representations or information to the commission about matters affecting political parties as the panel thinks fit. My amendment confers upon the commission the power to seek the advice of the panel on matters affecting political parties.
One can see the case for members of the panel wishing to make representations to the commission, but the commission itself may wish to consult on proposals that it is considering. Although the commission is empowered to make reports and to provide advice to different bodies, it is not--at least, not explicitly--empowered to consult other bodies. Contrary to what the Minister said, I believe that it is appropriate to confer such a power, certainly in this case. There may be occasions when members of the commission are considering a proposal on which they would welcome some input from those with knowledge of parties and of fighting elections. The important point is that it may be best for that input to come at the formative stage.
As I say, my amendment is self-explanatory. The case for it is fairly obvious. I do not recognise the Minister's objection as a compelling one. I do not believe that the commission should be constrained in this way or that it would be in any way tainted by being given the power that I suggest. Such a power is necessary to allow the commission, should it so choose, to consult the panel that is being set up. This is a fairly straightforward and sensible amendment. I beg to move.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, I concur completely with my noble friend. I found the Minister's explanation of why the Government do not like the amendment distinctly unconvincing. Subsection (2) of the Government's new clause states:
"The function of the panel shall be to submit representations or information to the Commission about such matters affecting political parties as the panel think fit".
There is nothing wrong with the commission saying to itself, "I wonder what the political parties think". The panel would be the right body to ask the political parties what they think. Frankly, I cannot see why the panel should be able to discuss a matter possibly raised by one of the parties and make a view known to the commission, and yet, amazingly, be unable to ask the panel what it thinks.
I welcome the fact that the panel is to be set up. As the Minister said, the government amendment reflects the concern expressed in Committee over the fact that the commission would not have anyone who was actively involved in politics. It was felt by many noble Lords that there was a vacancy in the information gathering and advice. That has largely been filled by the Government's new clause, and I welcome it. But I do not see why we should stop short of allowing the commission to ask the panel its view. I am convinced by my noble friend's argument.
Baroness Gould of Potternewton (Labour)
My Lords, I, too, am slightly puzzled. It would be perfectly sensible for the commission to be able to seek advice. Surely that is its role. It will not have all the answers. Therefore, I do not understand the objection to Amendment No. 14A. I am sure that the commission will seek advice from all kinds of directions, but this is a particular one in respect of political parties. It answers all the points that were made at Second Reading about the fact that the commission might not be sufficiently experienced in the ways of political parties. I hope that the Minister will give a little more thought to the amendment and perhaps return to the matter at Third Reading.
Lord Rennard (Liberal Democrat)
My Lords, Amendment No. 14A seems at worst harmless and at best extremely useful. The whole purpose of the debate that we had at an early stage of the Bill was that there was a need to involve the parties more in guiding the commission. It was suggested that there was a danger that the commission, working in isolation from the parties, would not know how they worked. I fail to see how the Government can have any real objection to the amendment. As the Minister said, from time to time the Government find it necessary to consult the political parties on matters of election law. Indeed, after every general election the Home Office conducts a consultation among the political parties in relation to lessons that might be learnt from the recent election campaign. I see no reason why the Government should not support the amendment.
Viscount Cranborne (Other)
My Lords, I support my noble friend Lord Norton in his amendment. There is a curious assumption through whole rafts of this Government's legislation that there are some sort of Platonic guardians up there who are repositories of all wisdom and who, by definition, are not only experts but whose views are infinitely preferable and more respectable than the views of the elected representatives in Parliament. It is not difficult to move from that assumption to another curious assumption; namely, that such people are wise almost by birth--dare I say it, in this half-reformed Chamber?--and that they somehow distil their wisdom from cerebration and from air.
I suspect that the accumulated wisdom of this House, while it is of course the result of your Lordships' intellect, is substantially the result of your Lordships' accumulated experience. If the logic of the Government's new clause is that party representatives should volunteer their views based on their own political experience to a body which, by definition, has been accepted to be one of little political experience, the reverse must also logically be the case; namely, that when the commission is deliberating, it may wish to take an initiative and find out what people at the political coal-face feel and what is their experience. As my noble friend said, and as the noble Baroness, Lady Gould, also pointed out, the good sense in my noble friend's amendment is self-evident. The Government's logic has escaped me, as it seems to have escaped other noble Lords who have spoken to the amendment.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, when the noble Viscount, Lord Cranborne, speaks of distilled wisdom, I worry. Distilled wisdom usually comes in a bottle late at night and judgments made thereafter do not necessarily improve.
Turning to the points made during the debate, I do not think that there is a great deal between us. The Government's view is that the panel will be a consultative body. It is not necessary to give the commission a general power to consult it. Consultation will, of course, take place. It will take place not just with the panel but outside the confines of the panel.
However, I have heard the words of wisdom--distilled or otherwise--from various quarters of the House. While I am not prepared at this point to give way, as I am urged from the Benches opposite, I am more than happy at least to give some further consideration to the point that is made in the amendment. It may well be that it needs to be further thought through and broadened slightly. As I read the amendment, it is a bit "top down" and too instructive. What we are attempting to do in the clause is not to confine the process of consultation but to broaden it and to provide for the panel to have a role in that.
I am grateful to those noble Lords who have offered support and comfort in regard to Amendment No. 14. I hope that, particularly in view of what I have just said, the noble Lord, Lord Norton, will feel able to withdraw his Amendment No. 14A.
Lord Norton of Louth (Conservative)
My Lords, I am grateful to the Minister for that response and for having gone somewhat further than he did in his earlier remarks. I am gratified by the comments of other noble Lords. As they made clear, there is no reason why the amendment should not be on the face of the Bill. In the context of the new clause, it is logical and sensible.
However, the Minister has indicated that he will reflect on this matter and perhaps return to it at Third Reading. On that specific understanding, I shall not pursue it at the moment. I beg leave to withdraw the amendment.
Lord Mackay of Ardbrecknish (Crossbench)
moved, as an amendment to Amendment No. 14, Amendment No. 15:
Line 29, after ("belong") insert (", who have made and subscribed to the oath required by the Parliamentary Oaths Act 1866 (or the corresponding affirmation) and are not disqualified from sitting or voting in the House").
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, this is a further amendment to Amendment No. 14. Before speaking to the amendment, it may be for the convenience of the House and the Minister if I ask one question about Amendment No. 14.
I note that in every case the person who is to be appointed is to be decided by the treasurer of the party. When we consider what this panel will do, I wonder whether the treasurer is the best person. I should have thought that the leader of the party would be the best person to make the appointment, not the treasurer. Perhaps the Minister could explain in his response why the Government have decided to make the treasurer the person who nominates an individual to sit on the parliamentary parties panel.
Amendment No. 15 relates to the parties that will qualify to appoint members to the panel. The Minister drew attention to the contradictions in the Bill that form the very centre of my amendment. Looking at Amendment No. 14, it would appear that the panel could have a nomination from Sinn Fein, as there is no disqualification for members who have not subscribed to the House of Commons Oath. However, in other parts of the Bill Sinn Fein would not be considered because they have not taken the Oath and they would, therefore, be disqualified. As the noble Lord pointed out, there is a disqualification in Clause 3(6) which refers back to subsection (2)(b)--
"the registered leader of each registered party to which two or more Members of the House of Commons then belong",
and deals with the question of the appointment of the electoral commissioners. Subsection (6) says that,
"reference to Members of the House of Commons does not include any Member of that House who at the time in question ... has not made and subscribed the oath required by the Parliamentary Oaths Act 1866".
Similarly, we find exactly the same provision in Clause 11(1)(b) with regard to policy development grants; namely,
"a registered party is 'represented' if there are at least two Members of the House of Commons belonging to the party who ... have made and subscribed the oath required by the Parliamentary Oaths Act 1866".
The Minister drew our attention to those two parts in the Bill, but he did not seem to give any justification as to why such a provision should be swept aside when considering the parliamentary parties panel. Indeed, parties that would be considered unsuitable to be consulted under other parts of the Bill would be consulted and allowed to have members on this panel. That seems to me to be both inconsistent and strange.
There can be no party that this provision is aimed at other than Sinn Fein. I do not believe that anyone else has declined to take the oath for membership of the other place. My question is a simple one, and one which I shall no doubt repeat tomorrow: why is an exception being made for Sinn Fein? If its members wish to take part in the parliamentary parties panel, they should subscribe to the House of Commons oath like everyone else. If Clauses 3 and 11 both contain that debar, why should not this new clause have such a provision? I beg to move.
Viscount Cranborne (Other)
My Lords, I rise to express my support for my noble friend's amendment. As was the case with the amendment of my noble friend Lord Norton of Louth, it seems to me that the logic behind this amendment is self-evident in terms of what the Bill contains, as outlined in Clauses 3 and 11. Equally, there is quite an important principle at stake here that the Government seem to have acknowledged in both those clauses. After all, we are told that the whole basis of the Good Friday agreement has been to recognise a government assumption--a heroic one perhaps but, nevertheless, one which the Government have made--that terrorist parties that have been allowed to participate in the new arrangements as a result of the agreement have given up the Armalite in favour of the ballot box. As the noble Lord knows, I am highly sceptical about whether that assumption is justified. However, let us assume that it is; indeed, we all hope that it is.
It seems logical, therefore, that we should not give comfort in this clause, any more than we do in other clauses, to parties that have not agreed to the rules to which the rest of us in parliamentary government have subscribed. Indeed, unless everyone plays by those rules, those who resort to violence, bombs and the Armalite tend to have an advantage which is denied to the rest of us and which destroys the body politic in the polity in which we live.
A commission whose accumulated political wisdom is the reason for its existence should be a body that represents parties that subscribe wholly to the rules to which the rest of us are subject. If the Government do not subscribe to the sentiments expressed in my noble friend's amendment, the logic of that will be even less easy to follow than the logic originally put forward by the noble Lord in his justification--initially at least--for rejecting Amendment No. 14A.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, the noble Lord, Lord Mackay, asked me a question at the beginning of his remarks. I always try to provide him with a straight answer. If I do not always do so on the first occasion, I sometimes do so on the second; but I certainly do so on the third occasion. The noble Lord asked why the treasurer should be the person to make the nomination. If one considers the scheme of things in the Bill, it will be seen that the treasurer is the central player. I have no doubt--indeed, I believe that it is beyond question--that the treasurer of the party would want to consult the "registered leader". That is how I believe the process will work. Indeed, that is how most people expect it to work, and I have no doubt that that is how it will work.
I turn to the matter of substance before us, as outlined in Amendment No. 15. I indicated earlier what had led us not to include the restriction contained in this amendment. I believe that our line was and is valid. As it stands, the government amendment is what we intended to commend to the House. The reason behind that is the fact that the panel is not a government body but one belonging, quite properly, to the parties. They will have to work together to make the panel work.
However, I have listened to what noble Lords opposite have said. I believe that the panel has a very important task to complete and that it must work. Noble Lords have made the point that the Government's amendment would add a degree of inconsistency to the Bill. For those reasons, and bearing in mind the fact that this matter needs to be approached both sensitively and practically, I am prepared to accept the noble Lord's amendment as drafted. It is certainly correct as drafted. I am happy to acknowledge that point this evening and to concede on this issue. That is the position of the Government.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, I was a little concerned earlier that my noble friend Lord Astor would be the only person this evening to receive a concession from the Government--that is to say, to be fair, other than the many concessions contained in the Government's amendments to the Bill, which are concessions or re-thinks arising from the Committee stage. However, I am delighted to see that I, too, have actually scored a concession. Indeed, as the noble Lord pointed out, if consistency is what we are about, if he is prepared to be consistent with me on the Parliamentary Oaths Act, I must be prepared to be consistent with him on the treasurer point. Therefore, I accept the noble Lord's point in that respect. I am delighted to accept his acceptance of my amendment.
Lord Norton of Louth (Conservative)
moved Amendment No. 16A:
Page 4, line 20, leave out ("whether or not").
Lord Norton of Louth (Conservative)
My Lords, this amendment seeks to limit the powers of the Secretary of State. As drafted, Clause 5 lists the matters that the commission,
"shall keep under review, and from time to time submit reports to the Secretary of State on".
Subsection (2) stipulates that the commission shall review and submit a report on,
"such matter or matters (whether or not falling within subsection (1)) as the Secretary of State may specify".
I have no problem with the Secretary of State being empowered to require a report on any matter listed in subsection (1). The matters listed there are all within the competence of the commission. Indeed, as far as I can see, the list is comprehensive in encompassing those matters within the competence of the commission. Paragraphs (a) to (g) within subsection (1) are couched in broad terms. Why, therefore, should the Secretary of State be empowered to require the commission to review and report on matters not falling within subsection (1)?
Apart from the matters specified in subsection (3), the Secretary of State may require a report on any matter that he chooses, regardless of whether or not it is strictly within the competence of the commission. Indeed, he could require a report on any topic that does not fall within the competence of the commission at all. That would be clearly perverse but, as the clause is presently drawn, the Secretary of State would be perfectly entitled to do so.
I am wary of conferring broad powers on Ministers, especially where there is no clear, and certainly no compelling, case to do so. I cannot see a compelling case for the broad power conferred by subsection (2). Under my amendment the Secretary of State would be empowered to require the commission to review and report on any matter or matters listed in subsection (1). That in itself is a considerable power but I think a perfectly acceptable one. I cannot see a case for going beyond that; hence my amendment. I beg to move.
Viscount Astor (Conservative)
My Lords, I support my noble friend's amendment. The commission appears to have an extremely broad power under Clause 5(1)(a)--which I think is right--to report on,
"such matters relating to elections to which this section applies as the Commission may determine from time to time".
As I say, the commission has an incredibly broad remit in this regard; it is not fettered in any way. Therefore the concept of giving the Secretary of State power to go beyond that seems to be perverse because one cannot imagine in what circumstances the Secretary of State would need that power, unless he were in dispute with the commission over its powers and role. If that were the case, should he have the power we are discussing? That is the matter that the Minister needs to address.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, I suspect that too much is being read into the wording here. I am grateful to the noble Lord, Lord Norton, for the explanation of his amendment. I reassure the noble Lord that there is nothing sinister in the words "whether or not" in subsection (2) of Clause 5. The Home Secretary will not ask the commission to review a matter that is wholly outside its sphere of operations. However, there may be matters which we have not thought of to list in subsection (1) which, in time, might perfectly properly be matters that could be put to the commission to examine. It would be a loss to the Bill to take out these words and thereby prevent Ministers tapping into the knowledge and experience that the electoral commission could bring to bear on a particular issue. I hope that with that assurance the noble Lord will withdraw his amendment.
Viscount Cranborne (Other)
My Lords, before the noble Lord sits down, I hope that he will explain something to the House, or rather to me as I have not understood it. This is perhaps a relatively minor matter, but is he not advocating something of a Henry VIII power here if a power is added, perhaps by ministerial order, and therefore amends something which is embodied in primary legislation?
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, I do not think that we are advocating a Henry VIII power here. We are providing no more and no less than some necessary flexibility. It is certainly not my intention to introduce a Henry VIII power here; that would be wrong and improper. However, we may not have listed fully all the kinds of matters that might properly fall to the commission to consider. The wording in the Bill provides some small measure of flexibility which should enable that position to be covered. It is no more and no less than that.
Lord Norton of Louth (Conservative)
My Lords, I am grateful for the Minister's response, but I am not altogether persuaded of the argument that he advanced. We had similar discussions in respect of the Freedom of Information Bill when the Minister advanced exactly the same argument with regard to flexibility. He argued that circumstances might arise which we cannot envisage. That is a dangerous argument. I accept what my noble friend Lord Cranborne said. The measure gives Ministers a broad power in whatever circumstances they think may justify the use of that power. However, the Minister is unable to say what those circumstances may be. Therefore, the broad power is conferred to cover the position. As I say, we heard exactly the same argument with regard to the Freedom of Information Bill. I was not persuaded of the validity of the argument on that Bill. I am not persuaded--
Lord Wedderburn of Charlton (Labour)
My Lords, does not the noble Lord agree that the amendment assumes a burden of proof; namely, of proving that there could not possibly be anything which did not fall within the list in the clause, and that that burden of proof has not been discharged?
Lord Norton of Louth (Conservative)
My Lords, I understand the noble Lord's point, but the clause is so broadly drawn that it is comprehensive in terms of what the commission is expected to do and I can see no reason for going beyond that. It is in many respects, as the Minister argued, a small point in the context of the Bill, but I do not necessarily think that it is a small point in terms of the principle that is involved. It is that principle on which we ought to take a stance. I therefore wish to seek the opinion of the House.
Lord Mackay of Ardbrecknish (Crossbench)
moved Amendment No. 17:
Page 5, line 28, leave out paragraph (i).
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, the amendment arises out of our discussions a year ago about the free delivery of election addresses at elections to the Greater London Authority. Some of your Lordships may think that I am simply trying to revisit the scene of my past victories, but that is not the point of the amendment. We were immediately suspicious when we saw that the provision was included in Clause 6 and tabled amendments to move it to Clause 7. That may not seem a staggering change, but it is significant.
Before I continue, I should congratulate the noble Lord, Lord Bach, on his translation from the Whips Office to be the Parliamentary Under-Secretary of State to the Lord Chancellor, no less. I did not know about the change initially. The Government clearly do not believe in the Freedom of Information Bill and were trying to keep the fact a secret. However, it has slipped out and I am sure that the whole House offers the noble Lord our congratulations and best wishes.
I am sorry that I have to argue with the Minister on this first occasion, but he will remember that your Lordships' House forced the Government to climb down on a free post for the London mayoral elections. The other place had decided that there should be no free post. I suspect that the Government had realised that any free post would only do even more damage to their preferred candidate, Mr Dobson. In the event, poor Mr Dobson was resoundingly beaten and Mr Livingstone was declared the mayor. As far as I can see, the sky has not yet fallen in, although I suspect that it could happen any day.
The eventual compromise was that there would be a free post in the first London mayoral elections. The noble Lord, Lord Rennard, and I negotiated with the Government on the issue. We heard a lot of arguments about the idea being unaffordable and impossible to organise in time and many other excuses, but in the end the Government gave in and we came to a compromise. It may not have been what the noble Lord, Lord Rennard and I preferred, but it was at least an option. It gave the London electorate a piece of paper which explained what the election was about and who the candidates were. I shudder to think what the turnout might have been if there had been no free post delivery. Many electors in London would not have been acquainted with what was going on.
As an aside, it seems very unfair that poor Mr Livingstone is still outside the Labour Party, considering that Mr Dennis Canavan, who left about the same time and for largely the same reason, now appears to have been readmitted to the party. If Mr Livingstone reads the proceedings of the House of Lords, which I am sure he does--at least, those parts which refer to Mr Livingstone--I can advise him that the clear course of action is to follow Mr Canavan and threaten to cause a by-election. The moment that one threatens to do that, as Mr Canavan found out, suddenly one becomes acceptable again and the by-election threat is withdrawn. Perhaps London is different, as there is no Scottish National Party here , but it certainly might be worth Mr Livingstone having a try.
The Bill, as drafted, states that the question of the delivery of a free election address at elections to the Greater London Authority would be one of the matters where the authority would consult the commission. That implies that it could consult the commission and, if it said that it thought that there should be a free post, the authority could still decide otherwise. By moving the paragraph from Clause 6 to Clause 7 I have put it into one of the places where the powers would only be exercisable on the commission's recommendation. So, if it recommended a free post, that would take place, but, if it said no and that there was no need for it, the Government could achieve its original purpose. That would be quite sensible here.
I shall be interested to hear what the noble Lord has to say about it because he will remember the difficulties that the Government had. I am not sure whether I should tempt the Liberal Democrats. I shall be interested to see what support I may get from them for this amendment, which is very small and consistent with previous outings today. I am quite sure that the Government could quite easily accept it. I beg to move.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
My Lords, I thank the noble Lord, Lord Mackay, for his very kind words. His arguments were not quite so kind. I am sorry that he felt bad about arguing with me today. I would not know him if he were not arguing with me. I am very grateful for the very kind remarks that he made. Indeed, if I shut my eyes and listen to the noble Lord--I never do that when the noble Lord is speaking--I could have been taken back 12 months or nine months, which seems like an age ago. We were discussing similar points about forthcoming elections that saw the triumphant return to the Greater London Authority of my noble friend Lord Harris and some noble Lords from the Liberal Democrat benches as well.
The effect of Amendments Nos. 17 and 18 would be, as the noble Lord said, to make the order-making power under Section 17A(3) of the Greater London Authority Act 1999, which relates to the free delivery of election addresses at elections to the Greater London Authority, exercisable only on the recommendation of the Electoral Commission. As the Bill stands, that could only be made after consultation with the commission. The question of a free post provoked a good deal of debate and excitement in your Lordships' House. We are not entirely surprised that the noble Lord sees some minor attraction in taking the matter wholly out of the hands of the Secretary of State.
We do not entirely agree. The provision of free post facilities may involve considerable sums of public money. The commission should be consulted and its view taken extremely seriously as regards the proposed arrangements for a free postal delivery of an election address. However, it must be right that the government of the day, of whatever political persuasion, is able to take account of the cost implications, which may be very large for such arrangements, before making such an order. Therefore, we believe that the government of the day must be able to modify any recommendation made by the commission if they see fit.
Having been consulted, if the commission were to come to a certain view and the government did not, I do not believe that it would be very long before your Lordships' House had something to say about it which might be fairly unpleasant for whichever government was in power at the time. As regards the noble Lord's amendment, that may be a real safeguard against what he fears is in the Bill at present. I hope that the noble Lord will withdraw his amendment.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, I am sorry to dispute with the noble Lord after congratulating him. I was not greatly convinced by that argument. It may be that the Government will get their will on there being no free post without having to come before the House. Therefore, the opportunities which arose earlier in the year which allowed your Lordships to deal with the issue in the way we did, will not arise again. Not only was there some secondary legislation, which, very unusually, we voted against, but there was the Representation of the People Bill in which the Government included the clause which resolved the dispute between your Lordships' House and the Government. Two things happened in a fortuitous way; one a statutory instrument and the other the fact that the Representation of the People Bill was before your Lordships at the same time. I do not see such things happening so fortuitously the next time, if we come to such a position. I do not believe that your Lordships would be in the same position as we were earlier this year.
I noticed that the noble Lord congratulated his noble friend Lord Harris on his election and other noble Lords, looking towards the Liberal Democrat Benches. It may be I am becoming hard of hearing, but I did not hear the noble Lord congratulate Ken. However, as the noble Lord has just been made a Government Minister, no doubt he wants to hang on to that position and knows what is good for him.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
I was talking about the Greater London Authority elections. I do not know whether the noble Lord was listening to me. I was not talking about the mayoral election. Indeed, I am not sure whether this particular amendment is about the mayoral election at all, although the noble Lord spoke about it at length.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, I believe that this matter is about election to the Greater London Authority and I suspect that the Mayor had something to do with that. If my amendment was technically flawed, I am sure the Minister would have told me. I have learnt that from Ministers. All the answers appear to be the same as the earlier ones; namely, the involvement of considerable sums of public money and so on. It would be better if we moved this particular paragraph from Clause 6 to Clause 7. As the Liberal Democrats have been silent on the matter, I cannot resist the temptation to see which Lobby they will enter on this issue. I seek the opinion of the House.
Lord Mackay of Ardbrecknish (Crossbench)
moved Amendment No. 19:
After Clause 8, insert the following new clause--
:TITLE3:COMMISSION TO GIVE ADVICE ON WORDING AND FAIRNESS OF QUESTION IN A REFERENDUM
(" .--(1) The Commission shall, before any Bill containing provisions for a referendum under section 99 of this Act is held--
(a) give advice as to the question, or questions, to be asked;
(b) make a statement as to the fairness of the wording of such a question, or questions, and the capacity of such a question, or questions, to be easily understood by the electorate.
(2) Any advice given under this section shall be made public prior to the date on which a Bill for a referendum under section 99 of this Act is laid before Parliament.").
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, noble Lords will realise that with Amendment No. 19 we are discussing government Amendment No. 171. In Committee, we discussed the issue of the question. Quite clearly, the question is one of the most important items in any referendum. It is not so much that both sides must agree on the fairness of the question, but proponents for both sides of the argument must feel that the question is fair. Then the result will be considered to be fair. The way in which the question is put is obviously of great significance. Anyone who studies opinion polls and examines results which are obtained by tweaking questions one way and another can see how important the question is in a referendum.
I tabled Amendment No. 19 after we discussed the Bill in Committee. The amendment would ensure that, when a government decided to proceed with a referendum, they would take the mind of the commission and publish its opinion. Therefore, when the detail of the referendum, including the question to be asked, was discussed in a Bill before your Lordships' House and the other place, Parliament would know the commission's view on the question. I do not believe that any government would be able to ignore the view of the commission in relation to the referendum question. If they were to do so, there would be such a fuss that their position would simply be untenable.
The Government have tabled Amendment No. 171, which seeks approximately the same outcome but perhaps does not go as far as we would wish. It goes some way, but it does not make it mandatory for the government of the day to obtain the commission's approval of the wording of the question. As I said, if the commission were to tell a government that it did not consider the question to be fair, I do not believe that any government would be able to continue with it through both Houses of Parliament.
The Minister will explain to your Lordships exactly what his amendment seeks. I say only that noble Lords will note that the government amendment is three times longer than mine. I suspect that that tells us everything about this Bill, which is now 50 pages longer than it was when we started the Committee stage. I look forward to counting by how many pages it increases following this stage. I make no complaint about this extra page. However, I beg to move my amendment in order that we may discuss the Government's amendment.
Lord Norton of Louth (Conservative)
My Lords, I rise briefly to welcome Amendment No. 171, which has been tabled by the Government in response to our discussion on this particular issue at an earlier Committee sitting. I made the point then that, given the expertise of the commission, this could be made use of as regards the wording of any referendum. The point I made was that not only has one to look at a referendum question in terms of whether it is fairly put but also whether it is unambiguous. That is an extremely important point because referendum questions may often appear to be unambiguous to those who draft them but when put to electors they are capable of being interpreted completely differently. Research in the United States has shown that sometimes there can be a high level of mistaken voting by people who have misinterpreted the question.
Lord Lamont of Lerwick (Conservative)
My Lords, perhaps I may interrupt my noble friend. As someone who has just looked at these two amendments, I see that the Government's amendment--no doubt the noble Lord will address this point--is all about intelligibility. The amendment posed by my noble friend Lord Mackay was about the fairness of the question. These seem to me to be rather separate matters. Perhaps my noble friend would address that point, because it is possible to word a question in a way which is more likely to receive an answer "yes" or "no".
Lord Norton of Louth (Conservative)
My Lords, I thank my noble friend for his intervention. The point I made at an earlier stage was about the importance of ensuring that questions were unambiguous and that the commission had a role to play in that respect. I very much welcome any move towards the question of intelligibility.
I was about to deal with the very point that my noble friend Lord Lamont has raised--the question of fairness. As my noble friend said, that is a different and separate point, in terms of making sure that the question is both balanced and unambiguous. I was going on to invite the Minister to address this matter.
The amendment itself is comprehensive in relation to intelligibility and it covers all the relevant circumstances that might be envisaged in this particular context. I very much welcome the amendment so far as it goes but, like my noble friend, I would invite the Minister to address the matter of equity as well as that of intelligibility. The government amendment is to be welcomed because it goes a long way towards meeting the point and I am interested to know whether the Minister would be prepared to go that little extra distance on the very point that has been raised.
Viscount Cranborne (Other)
My Lords, I am pleased that the Government have given us half a loaf, although disappointed for the same reasons as my noble friend Lord Norton. I wonder whether the Government would also consider something else. It seems to me that no matter how wise the commission may be--and we have discussed its wisdom almost ad nauseam during these proceedings--that wisdom will always be a matter of judgment one way or the other as far as it is concerned. Of course, the members of the commission are there as wise men and women but not as elected wise men and women. They are there because of the rather curious 21st century view that wise men and women are better than elected men and women. That is a view to which I have never subscribed, as your Lordships who have had the misfortune of hearing me over many years will no doubt have realised.
I wonder whether the Government have ever actually considered that they might have avoided all this trouble in the first place if they had postulated that it should be impossible to hold a pre-legislative referendum. If they were to say that all referendums should be post-legislative, it would be very difficult for any government of the day then to emasculate parliamentary scrutiny of any proposal by means of the rather ghoulish accusation that anybody who disputed a piece of legislation introduced after a pre-legislative referendum was going against the will of the people.
I suspect that it would have been much better had we provided in this Bill that referendums should always pose the question: "Do you approve of this piece of legislation or not?" Then the matters of definition would not arise. However, as the Government have not taken that route, we must be grateful for small mercies.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, on the first day of Committee--it seems a long time ago--we debated the question of involving the electoral commission in settling the referendum question. The debate was good-humoured, penetrating and very thoughtful and I thought we had discovered a degree of consensus. I indicated that the Government were likely to bring forward an amendment, and this has how been done. The Official Opposition indicated that they were not likely to let the matter go and they too, very fairly, have brought forward their own amendment.
The two new proposed clauses are clearly alternatives and the Committee has to choose between the two. I have no doubt at all that the Government amendment is to be preferred and I hope to be able to convince your Lordships of that. Indeed, I hope I might even be able to convince the noble Lord, Lord Mackay, of that and to invite him to withdraw his amendment in favour of our own.
There are two main points of difference between the proposed new clauses. The first concerns the procedure for engaging the commission, and here I hope to convince all sides The procedures in the two new clauses are different but I do not believe that on reflection anyone could hold up the procedure proposed in the Opposition amendment as being superior to our proposal.
The procedure set out in the government amendment is simple and straightforward. The commission will notice that a Bill with a referendum question has been introduced into Parliament and will, of its own motion, publish its opinion. The procedure set out in the Opposition's new clause is rather more complicated and, for that reason, perhaps less satisfactory. Its essential feature is that, somehow, the commission must give its advice before a Bill is introduced. The obvious inference is that the Government or a Member of Parliament, when intending to bring forward a Bill, should at least give the commission an opportunity to comment, and perhaps even ask the commission to frame a proposal before the Bill is introduced. That proposal, I suggest, is unsatisfactory. Its effect is that a Bill cannot be introduced unless and until an outside body--in this case, the electoral commission--has opined on it. It would, I think, be the first instance in which Parliament had effectively bound itself in such a way. It would also provide rich opportunities for confusion. How is the matter to be put to the commission if there is not yet a Bill? Will the commission disclose that it has been approached? Will people have an opportunity to make representations to the commission to influence the advice it gives? I daresay that noble Lords, with their forensic skills, could find some sort of answer to those questions if there was anything really at stake. But they do weigh against the Opposition's new clause when there is a simple, straightforward and, I would argue, transparent alternative on offer, as in the government amendment.
The second main difference between the two clauses lies in the scope of the matters on which the commission is asked to give its opinion. I accept at the outset that this may be more contentious than the procedural aspect. Even here, however, I am not without hope. I thought that, in Committee, there was a good degree of consensus that the intelligibility of a proposed question was a matter on which it was pre-eminently sensible to engage the commission. I think that that is probably an opinion shared by most Members of your Lordships' House. It is in everyone's interest that if a question can be put in a clearer form, and we can reduce the risk of people voting for an outcome that they do not want, we should do it. That seems to be common ground. However, I should add that the intelligibility of a question also seems to the Government to be a matter on which the engagement of the commission is cost free. No government, I hope, will propose a question which is deliberately obscure; and no government, I hope, will feel that their honour is impugned if the commission is able to suggest some modest improvements.
Beyond that point, however--and the Opposition's amendment goes a good way beyond that point--we get into much deeper waters. I am uneasy about asking the electoral commission for advice on, "The question to be asked". I am equally doubtful about asking it for an opinion on the "fairness" of the proposed question. That may be a surprisingly candid comment, but it will be stuck to resolutely on this side. Whether a particular question should be asked, and whether it is a fair question, are matters which, as I think most Members of your Lordships' House would and should readily accept, are very much in the political arena.
If a government propose that a question should be asked, that will be because they believe that it should be asked. A government will, almost by definition, believe that it is a fair question to put. The opposition, whatever their political colour at the time, will, frankly, have a duty to oppose, should they wish to do so.
It is highly likely that the opposition of the day will look to find something to quarrel with in the form of the question. I would argue that that is part of the cut and thrust of our political process. I do not think that there is anything wrong with that. It means, inevitably, that the commission will be commenting on a matter which will, in due course, become one of party-political controversy. I would argue that that is not a good position in which to put the commission; nor--again, very frankly--would the commission necessarily have any special expertise in that area.
Lord Norton of Louth (Conservative)
My Lords, I am grateful to the Minister for giving way. I understand the point he makes. However, perhaps I may draw his attention to the fact that there could be a methodological aspect to the question, rather than a partisan aspect. The commission could be looking to ensure--this is where expertise is involved--that there is no bias in terms of the wording of the question. I do not necessarily mean looking for deliberate bias in terms of those drawing it up. However, a wording may be constructed which might have a built-in bias, of which those drafting it may be unaware. That would not necessarily be deliberate. I am not thinking in terms of an attempt to gain advantage by those drafting the question; I seek to ensure that the question, which might come under the broad heading of being unambiguous, is unbiased in the sense that the wording does not point people in a particular direction.
There is a technical aspect to this, which I mentioned in Committee. A noble Lord suggested that we should have a straightforward question which could be answered "yes" or "no". My understanding is that that is problematic because there is a bias towards saying "yes" in response to a question. That is the sort of thing of which I was thinking in terms of consulting the commission to avoid bias in the question.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, again, one person's bias may be another person's equity. The commission could find itself drawn into a political aspect which would be profoundly uncomfortable. That is not what we want from the commission. We have all set out our stall very much in terms of the commission being free and independent of the political process, although from time to time advised by it. However, I believe that that is where the commission properly sits. It is for that reason that I do not think we should taint the process.
As a politician, putting myself in that position, I am not sure on what basis I would want to respond to a request for advice on fairness or bias on a referendum question. I could only respond on the basis of what I personally happen to think about the issue in question. I do not think that there is an off-the-shelf technical answer to, for example, the question of whether referendum questions should be cast in positive or negative form, provided that they are intelligible. The Government's amendment looks after that.
I therefore suggest to the House that if your Lordships accept the Government's new clause, they will have the matter pretty much where they want it. For that reason, the Government's new clause is greatly to be preferred to the one tabled by the Opposition. I recognise that the issue is important, as I am sure will all Members of your Lordships' House. However, because of the political nature of any debate about fairness, equity, bias and so forth, it would be wrong to place those as questions for the commission to consider in giving its advice on intelligibility.
I am grateful for the support for the amendment we have moved, which I thought was a fair reflection of the debate in Committee, long ago though that was, and of the points raised then by the noble Lord, Lord Norton of Louth. I think we have it about right. We have gone as far as we possibly can on that question. I accept that the question of fairness is a legitimate one for debate, but that debate should be had politically.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, I indicated, perhaps over-generously, that I was pleased to see the government amendment on this issue. I fully accept the procedural points raised by the Minister; that is, that his amendment covers a situation in which the question would be in a Bill or in an affirmative order. Indeed, although I cannot understand or even conceive of it ever happening, it covers the situation in which the question might be in a negative order, which I find rather unbelievable. However, I accept that the amendment covers all eventualities about how the question would be addressed or dealt with in Parliament.
The problem comes down to the use of the word "intelligibility" instead of "fairness". The noble Lord came a little close to us when he said that certainly it should not be obscure. That is a little progress, at least towards the fairness attitude. However, as my noble friend Lord Cranborne rightly pointed out, these matters come into play only when we are not dealing with a post-legislative referendum. If we were, the question would be simple; for example, "Do you wish the Scotland Act to come into force: yes or no?" That is straightforward. However, the bias comes in if we are dealing with a pre-legislative referendum and are therefore not asking whether an Act should come into force.
The Minister seemed to find it hard to believe the point raised by my noble friend Lord Norton, that there could be an unintended bias in the question simply by virtue of the nature of the question. Such bias could work against the interest of the Government. Therefore, the electoral commission might well have a view about whether or not there was that kind of bias in the question. To put it perhaps at its most extreme, let us assume for the moment that at some date in the future enough of my fellow countrymen decide to elect the Scottish National Party to the Scottish Parliament, and on that basis look for a referendum to make Scotland free or to break up the United Kingdom.
I have to say to your Lordships that those two questions would receive quite different answers in Scotland. I believe both would get negative answers from the SNP; but the question phrased, "make Scotland free", would be likely to gain a bigger "yes" vote--though not perhaps a majority--than would the question phrased, "break up the United Kingdom".
That is an illustration in bold terms of where bias can come in. Noble Lords can be assured that if the Scottish National Party was devising the question, it would go for the "make Scotland free" form. Perhaps if my party or the governing party here were devising the question, we might be more tempted to go for, "breaking up the United Kingdom". That is the essence of the problem. Both are intelligible but they both also contain bias. If I can step aside for a moment from the position that I would take on those questions, I can see that the one question is as biased as the other; and that is what we are getting at.
However, we have made progress with the Government in these amendments and for that I am grateful. Without being churlish, I hope that the noble Lord will understand when I say that we will study carefully what he says and study his amendment as it appears in the Bill. I am not sure whether my noble friends agree with me on this, but we may well come back to the issue of fairness as well as intelligibility at Third Reading. However, I welcome the Government's amendment. It arises out of our debate. Whether or not it could have gone further is something we shall ponder between now and next week. For the moment, I beg leave to withdraw the amendment.
Viscount Astor (Conservative)
moved Amendment No. 20:
Page 7, line 2, at end insert--
("( ) Advice given under subsection (3), other than in confidence, shall be made public and available in a format that the Commission thinks fit to any relevant body to which this section refers.").
Viscount Astor (Conservative)
My Lords, Amendments Nos. 20 and 21 relate to separate points in regard to the advice that the commission may give out.
We believe that non-confidential advice given by the commission to a political party should be made available to any relevant body whom it may concern or directly affect. The publication of such advice would be of benefit to both the other registered parties and to the political process because it would assist those bodies with their duty to comply with the provisions of this Bill and help to ensure that they were acting in accordance with the same information.
That would be helpful to the commission because it would avoid multiple applications for the same information and save other parties from having to "reinvent the wheel", as it were, on every occasion when general advice was required. In the distribution of such advice, the commission would be able to take advantage of current technology and limit any expense by sending out information electronically by e-mail, via circulars or in similar ways. Over time, the body of advice built up as a result of that distribution would constitute a valuable source of readily available knowledge to which all could refer without the need to return unnecessarily to the commission.
Amendment No. 20 does not seek to expose sensitive information which might prejudice the standing of either the commission or the body to which it gave the advice. It requires only that the commission publish open information and leaves the form and consequently the content of that publication to the discretion of the commission. Amendment No. 20 is in keeping with the general principle of clarity and openness that lies behind the Bill. It would be of benefit to the commission and help to make its life easier.
Amendment No. 21 concerns a slightly different point. It seeks to clarify the status of advice given by the commission. It is unclear whether following the advice of the commission would constitute a "reasonable excuse" defence to many of the offences created by the Bill--of which there are many. An individual may be placed in a position where he had followed the advice of the commission to the letter but that advice was subsequently ruled wrong by the courts. If that is so, we should look again at whether or not that individual should be guilty of an offence.
Indeed, what will be the legal status of advice given by the commission? Will the courts have to have regard to that advice or can they ignore it? But that would not be helpful; it would make it difficult and discourage people from going to the commission to ask for advice, which is presumably what we want. So Amendment No. 21 seeks clarification on the nature of advice, particularly on its status, and I should be grateful if the Minister could elucidate that point. I beg to move.
Baroness Gould of Potternewton (Labour)
My Lords, on the face of it, Amendment No. 20 seemed very sensible. One should be able to learn from the advice given by the commission to one political party; for instance, on one occasion we had read out to us letters that had come from the Home Office in respect of the electoral register--letters from both the Labour and Conservative Parties--and that seemed OK. One could also say that any information given by the electoral commission should be impartial and therefore there is no problem. That seemed fine to me and I thought it was an amendment I could support.
Then I looked at the amendment again and realised that the wording, rather than the principle, is somewhat flawed. It says,
"Advice give under subsection (3)".
When we look at that subsection it refers to advice given to,
"registration officers [and] returning officers at relevant elections".
It may well be that a returning or registration officer is asking advice about a specific area. The request may not be confidential, but neither is it relevant to everybody else. Yet the wording says "shall be made public", implying that all such information shall be made public. That seems to me to be nonsense.
The wording,
"Advice given ... other than in confidence",
means that anybody who does not want the information disclosed has to remember to say, "This matter is in confidence". So the whole process, as the amendment is worded, is completely unworkable.
Lord Hodgson of Astley Abbotts (Conservative)
My Lords, I rise to speak to Amendment No. 21, which raises an important point.
We discussed in Committee the fact that this Bill will reach further down into the political structure than ever before and that local political parties will find themselves in the front line in a way that hitherto has been unheard of. We have referred to, discussed and agreed that the difficulty of persuading individuals to take on these posts at local level is considerable. If the posts carry with them other anxieties about prosecution and so forth, that difficulty will be greatly increased.
Amendment No. 21 at least offers individuals locally and political parties some shelter. It is important that we have a clear understanding from the Government tonight as to what the position of advice given by the commission will be. That will affect individual local associations considerably. The passage of information will often take place at high speed. People will want to know what their position is and whether they can use the commission's advice as an air raid shelter inside which they can crouch. For the sake of those who run local associations, it is important that the Minister makes it clear that the commission's advice will provide them with considerable protection under the law.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, Clause 9 is concerned with the provision of advice and assistance by the electoral commission to other bodies and authorities. Subsection (3) would enable the commission to act as a central point for the provision of advice and guidance on best practice to electoral administrators and to provide guidance to political parties, third parties and referendum campaign organisations on the arrangements they should make in order to comply with the controls on funding and expenditure set out in the Bill. Amendment No. 20 would require that such advice, except where provided in confidence, be made public and available to any body to which that section refers.
I am not at all persuaded of the desirability of such a provision. It goes without saying that any written advice or guidance in the form, for example, of circulars to registered parties should be generally available. There is no argument about that. But the amendment seems to have far more than that in its sights. It appears to propose that if party X or Y seeks advice from the commission on a particular matter, that advice should be made public and available to other political parties and campaigning groups.
I have no doubt that, like any regulatory body, the electoral commission will receive numerous requests for advice in relation to compliance with the Bill. Parties will seek advice on the framing of financial schemes; on how they should report changes as to their registered officers; and on whether particular donations or items of expenditure need to be accounted for. Some inquiries may simply be a matter of a telephone call. Others may involve an exchange of complex correspondence. The commission might also arrange meetings with party representatives or seminars for their benefit. I do not see that all of this should, or even could, be made public. What does the noble Lord have in mind? Are all these exchanges to be published in a report or posted on a website?
Furthermore, it seems to me that parties and campaign groups may be more reluctant to seek advice if they know that the advice given in relation to a matter of particular and perhaps sensitive concern to them will be made generally available. I note that the amendment provides for an exclusion where advice is sought in confidence. I suspect that it would simply become the norm for advice to be sought in confidence as parties and campaign groups tried to hide behind that, which would probably undermine the point of the amendment.
Amendment No. 21 would make it a defence for a person charged with an offence under the Bill or in connection with a relevant election to prove that he acted in accordance with the advice given by the commission. I should say, first, that I have every sympathy with the proposition that it would be rough justice if a person acted in accordance with advice given by a public authority and subsequently found himself prosecuted. In practice, I have little doubt that a prosecution would not be proceeded with where it was clear that such advice unwittingly encouraged the commission of an offence. Clearly, the onus will be upon the electoral commission to provide advice that is consistent with the provisions of this Bill.
I am not persuaded that it would be right to place this general defence on the face of the Bill. First, it begs questions about what constitutes "advice". Clearly, such a defence would have substance if the advice in question took the form of written guidance such as a circular letter to registered parties. But such a defence might be based on an unrecorded telephone conversation with a member of the commission's staff. There might be no way of establishing whether the commission was in full possession of the relevant facts before the advice was given. And there would be issues about whether advice given in such a situation could ever be assumed to be authoritative. Judicial proceedings would no doubt take account of such considerations but it seems difficult ground on which to frame a statutory defence.
There is, however, a more fundamental reason of principle why such a defence should not be at large. I say "at large" because there may be particular instances where it is appropriate to provide for such a defence. The Bill provides a case in point. Clauses 77(3) and 115(3) already make it a defence for a person charged with exceeding limits on campaign expenditure to show that they complied with a code of practice issued by the commission under Schedules 8 and 13. The relevance of such a defence in the context of those schedules is clear. In providing for the issue of such a code of practice, Parliament will be indicating that the provisions of Part I of those schedules, which by their nature cannot be wholly exhaustive, are likely to require interpretation and clarification in terms of detail. Since any such guidance will be in the nature of a gloss on the provisions of the Bill, it is quite proper to provide that it should be a defence to show that one acted in accordance with the guidance.
However, it would be quite another matter to provide that every offence in the Bill should attract such a defence. In creating a statutory offence, Parliament is asserting its intention that a particular course of action should result in liability to prosecution. It would be odd then to provide that Parliament's intention should be contingent upon whether the regulatory body interprets the Bill correctly. Ultimately, the question of whether an offence has or has not been committed must be for the courts.
I apologise for the length of my reply. I have tried to be thorough and cover all the issues raised. I hope that having heard my reply noble Lords will feel able to withdraw their amendment.
Viscount Astor (Conservative)
My Lords, I am sorry that the noble Baroness thought that my amendment was unworkable. When I tabled it I thought that it was eminently workable. However, what is important is the Minister's comment about how the commission will disseminate information. That is helpful to the process. I accept that it is always difficult to know where the cut-off point is, but we know that the commission will look to see what was said as the Bill went through Parliament. It can look to see what the Minister said and that will be taken into account by the commission when deciding how to act. Therefore, the Minister's reply went a long way to satisfy my concerns.
Amendment No. 21 raises an important issue and I am grateful for the Minister's lengthy but helpful and clear advice. He said that written guidance must be taken into account by the court. It would be a defence and it is important that everyone knows that. As he said, any informal advice would be a different matter.
The Minister has given helpful answers to both points and I am grateful to him. I beg leave to withdraw my amendment.
Lord Davies of Oldham (Labour)
My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
Lord Rennard (Liberal Democrat)
moved Amendment No. 22:
Page 8, line 13, at end insert--
("( ) "a policy promotion grant" is a grant to a represented registered party to assist the party with the promotion of policies for inclusion in any manifesto on the basis of which--
(i) candidates authorised to stand by the party will seek to be elected at an election which is a relevant election for the purposes of Part II, or
(ii) the party itself will seek to be so elected (in the case of such an election for which the party itself may be nominated);").
Lord Rennard (Liberal Democrat)
My Lords, Amendments Nos. 22 to 26 set out an alternative to the proposals for assisting the financing of democracy put forward by the Neill committee. This alternative removes the Government's principal objection to the proposals of the Neill committee. The alternative will cost the Chancellor of the Exchequer no more than the Conservative Party's proposals. It should, therefore, be a compromise between the two cases to be argued shortly between Government and Conservative Front Benches over the proposed tax concession scheme.
It is clear that the Government do not want the tax concession scheme. The absence from the Bill of measures to implement the Neill committee's proposals to give tax relief to political donations of up to £500 is the single greatest departure by the Government from the report on which they have relied very heavily to justify implementation of most of the Bill. It was made plain earlier in the debate that the Government's principal objection was simply that a tax concession scheme would mean more money going to those parties which were able to raise the most money from donations of up to £500. I said in Committee that I shared that reservation. The tax concession scheme could have the opposite effect to the Neill committee's intention to create a more level playing field in our democracy.
By these amendments the Government's principal objection is overcome. An equivalent sum of money to that which the Treasury estimates to be the cost of the tax concession scheme would be distributed instead by the electoral commission, not on the basis effectively of topping up the Inland Revenue donations of up to £500 but on the same basis as the commission distributes the policy development grants. With all-party agreement, the Bill already provides for policy development grants of up to £2 million per annum to be paid to the main parties in accordance with the specific recommendation of the Neill committee. It is not a huge step from the distribution of £2 million policy development grants to say that the commission should distribute up to a further £4 million in policy promotion grants. That figure could be varied to any level up to £4 million, which is the same cost as that estimated by the Treasury if the tax concession scheme was implemented.
If this is an alternative to the tax concession scheme, as I believe it should be, the Conservative Party should not be able to object on the grounds of cost. The costs are the same as the tax concession scheme which that party advocates; indeed, the sums are similar to those currently claimed from the public purse by the Conservative Party for financing the activities of the so-called war room in Conservative Central Office and the Leader of the Opposition.
The Government may also try to claim that £4 million is too much or is not the right priority, but the sum is no more than they spent last year on promoting the fact that elections would take place for the London Mayor and Assembly. That figure is but one-hundredth of 1 per cent of the extra £43 billion which the Government repeatedly say is about to put into public services. If the argument is really about funding for schools and hospitals or paying for democracy, the Government should reconsider the £4 million per annum spent on their special advisers. I do not resent that expenditure because I am sure that the Government need that advice. We should recognise that democracy does not come free and that the Government already have a considerable role in paying for it. A little more government support is essential if we are to reduce the dangerous over-reliance of all the parties on a few millionaires. Faced with the options of the status quo or a tax concession scheme, I believe that this is the best way forward which will most certainly be recognised in time to come, if not immediately. I beg to move.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, I have listened with interest to the words of the noble Lord, Lord Rennard. The noble Lord appears to seek a compromise with the Government. I am opposed to the direct funding of political parties. There is a significant difference between the direct funding of political parties and tax relief. Clearly, the latter depends on how much financial support one receives from the electorate and one's supporters. That is a different issue from receiving financial help on the basis of the previous election, or the one before that. I understand that in Sweden one political party which has ceased to exist still gains funding because of the way that the system works. Clearly, that would not be possible if there was tax relief. While I admire, as always, the ingenuity of the noble Lord, I prefer tax relief, which was recommended by the Neill committee.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, the noble Lord, Lord Rennard, has been open and honest as ever about his party's support for a general system of state funding for political parties. These amendments provide for such funding to be made by means of a policy promotion grant. The amendments seek to ride on the back of the scheme for policy development grants recommended by the Neill committee and provided for in Clause 11 of the Bill. But there is no disguising the fact that policy promotion grants are of an altogether different character. These amendments provide for nothing less than a state subsidy of £4 million per annum to help parties meet their election campaign costs. If these amendments were accepted the taxpayer would pay for the Liberal Democrat posters and newspaper advertisements at the next general election. I believe that there are more than a few people outside your Lordships' House who would find that a rather unattractive proposition.
The noble Lord clearly sees the scheme of policy promotion grants as an improvement on the Official Opposition's proposals for tax relief for political donations, which we shall no doubt discuss further tomorrow. It could be argued that these amendments address some of the rougher edges of the tax relief scheme. But among the objections to such a scheme is that it would be expensive to administer relative to the benefit involved and it would benefit disproportionately those parties whose supporters were in a position to make donations of up to £500 or more. A system of policy development grants disbursed by the electoral commission would overcome those objections. There would be no administrative costs for the Inland Revenue or the political parties to worry about and any costs to the commission would be unlikely to be significant. Fairness in the allocation of the £4 million fund would be assured as the money would be distributed by, and in accordance with, the scheme recommended by the commission.
Those advantages, however, do not do anything to address the fundamental point that a system of policy promotion grants would yet more clearly constitute state funding of political parties. No doubt there are solid public interest arguments for the disbursement of public money to help parties to fulfil their parliamentary functions or develop long-term policies. I do not believe, however, that the same kind of case can be made in relation to meeting campaigning costs. Nor does the proposal address the question of broadening political parties' sources of funding which was the rationale for the Neill committee's proposal in respect of tax relief. I believe that such an arrangement would provide political parties with even less incentive to encourage larger numbers of small donations. I put it to the House that a convincing case for any scheme providing for a general state subsidy for political parties has yet to be made out. I hope that the noble Lord will withdraw his amendment so that we can deal with another part of the main debate tomorrow.
Lord McNally (Liberal Democrat)
My Lords, before the noble Lord sits down, is it not time that we stopped having this competition in humbug between the two Front Benches about state funding? The pass on state funding was sold almost a quarter of a century ago with the Short money.
Lord McNally (Liberal Democrat)
My Lords, the noble Lord lets out a groan from a sedentary position. What does he think Short money is other than state funding? Of course the pass was sold with the Short money intervention, and it was intentionally sold. It fed money directly into the coffers of the political parties. At the moment we see the Conservatives using some money for Central Office and some for other purposes. It seems to me that the Neill committee missed a glaring open goal by not cutting through the mutual humbug and saying that state funding is not a matter of lifting the skirts as though one had seen a mouse but is something to be welcomed as far preferable to an over-reliance on the big donors. Yet once again both Front Benches have missed the opportunity.
We will return to this matter because the tax concession is perhaps a worse second best. But for Ministers to condemn state funding as some great vice misses an opportunity. My noble friend is absolutely right. Within a decade, we shall be returning to this matter. The way the matter is dealt with in the Bill leaves in place all the temptation for abuse.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, the noble Lord invites a response from the way in which he made his point. I ask him this question in response. We do not often fall out over these matters, but does he think that the case that was revealed last week during the discussion before the Committee on Standards in Public Life of the Conservatives using £3.8 million of public money to fund the campaign bunker was the right use of public funds? Does he support that contention? That is the logic of the position being put forward by noble Lords on the Liberal Democrat Benches. I would seriously question whether that is right. It seems to me that in their admission last week that that is how some of the Short money had been used the Conservatives themselves were not entirely happy with what they had done and that they had gone to the whole trouble of asking advice as to whether they should be using the money in that way. That seemed to be accepting that that was an inappropriate use of Short funds. If that is the case, the argument being advanced by the noble Lords, Lord Rennard and Lord McNally, is somewhat shot through with holes.
Lord McNally (Liberal Democrat)
My Lords, perhaps I may respond. I am not as shocked as some people about what the Conservatives were doing. The state funding that already exists displaces other funding to be used. We have always tried clever ways of funding. We have done it right from the beginning. We have done it with MPs' expenses and with other aspects of funding. We have always tried clever ways of doing it, often finessing it past taxpayers so they do not realise that some of these funds are going for political purposes. We have always said that it would be far better to give a block grant to political parties to use transparently at their discretion than to have all these rules and regulations which will add confusion and invite parties either to bend these artificial rules or to mistakenly bend them. However, it is an opportunity which the Government for their good reasons have fluffed, as the Labour government in 1974 fluffed it. As I said before, until the matter is faced up to, until we openly see the rationale of state funding of our political parties, we will have to run the risk of the other sources of funding perverting and distorting the political system. But we have had this argument and we will have it again.
Lord Rennard (Liberal Democrat)
My Lords, I thank the Minister for his earlier remarks and, in particular, for summarising so effectively the case for the amendments. He said that his only reservation or objection was that it may not be popular to use public funds to promote Liberal Party posters in a future election campaign. I fail to understand why a voter may object to paying for parties promoting their policies but is quite happy to pay for the research into those policies which will come from the policy development grants which the Government are happy to provide to the parties. Indeed, it is a wholly artificial distinction to say that you are prepared to use government money for policy development and not use government money to pay for the promotion of those policies. Once the Government have entered into the era of paying towards policy development, as they are about to do, that will allow the parties to free up resources for the promotion of those policies. We are dealing with an artificial divide.
I listened with interest to the noble Lord, Lord Mackay. I failed to hear, unless he made a point I did not note, the fundamental distinction between the £4 million or so provided from the public purse--the so-called Short money--to Conservative Central Office for the payment of a press team and a war room to campaign for the Conservative Party and the kind of grants which I am suggesting would legitimately be used for parties to promote their own campaigning purposes. I fail to see the distinction.
However, as at this stage I hear little support for my argument, I shall withdraw the amendment on the basis that what it proposes used to be Labour Party policy--I am sure that it will again be Labour Party policy--and that I believe it to be Conservative Party policy in practice, even if it is not said so openly at the moment. On that note, I beg leave to withdraw the amendment.
Lord Mackay of Ardbrecknish (Crossbench)
moved Amendment No. 27:
Page 9, line 15, leave out paragraph (c).
Lord Hodgson of Astley Abbotts (Conservative)
My Lords, I find myself moved to join the root-and-branch option that has been so powerfully argued by my noble friend. I notice that page 9 of the Bill contains the words "public awareness". That is a weasel set of words--to which no one can object--beloved by the Civil Service.
As my noble friend Lord Mackay said, this is a matter of education. As has been said already, education is a very important and vital task, but it has nothing to do with regulation. The danger is that once education and regulation are put into the same body, various inherent conflicts of interest come to the surface.
Two immediately spring to mind. The first, is that the commission will necessarily have limited resources, and the disposition of those resources will have to be decided upon and divided between education and regulation. We were debating earlier how regulatory matters are likely to be fast moving and require instantaneous decisions; in such circumstances, if resources have been devoted to education with a lack of resources being devoted to regulation, those of our fellow citizens who are concerned with the undertaking of elections may well find themselves unable quickly to get the necessary advice and support.
The second immediate conflict of interest is that between the promotion of change and the maintenance of the status quo. As we begin the educational process, to what extent will this body be responsible for encouraging people to think about the options and for encouraging the debate on electoral reform, and to what extent is its duty to uphold the system as it presently stands?
I feel strongly about this issue. Earlier in the summer the Financial Services and Markets Bill passed through your Lordships' House. I am a member of the board of the Securities and Futures Authority and we are about to be subsumed into the new FSA. When that Bill was passed, tacked on to it was an educational requirement. That has already begun to make itself felt in the way in which the SFA has operated. Resources are now being moved inexorably towards educating the public at the expense of some of the disciplinary and enforcement procedures of that authority. The manpower and financial resources devoted to the market awareness side have increased quite considerably in the budget and are now under way within the FSA. I can foresee similar difficulties and problems with this authority. I see no way of avoiding it. Therefore, I believe that my noble friend Lord Norton has provided the only sensible option on this occasion.
Baroness Gould of Potternewton (Labour)
My Lords, I am slightly puzzled at the venom with which Clause 12 is being opposed. I find it difficult to accept. Two of the major electoral commissions--those of Australia and New Zealand, both of which I have visited--see it as a major part of their role to provide education for the public and to create public awareness. Their role is similar to that of the electoral commission as proposed in the Bill. Therefore, if it is suitable for them, I cannot see why it would be unsuitable for the electoral commission here.
There seems to be a fear that the electoral commission will examine matters such as electoral reform and that it will advocate different electoral systems. I thought that we had covered that point in Committee when we discussed the whole question of "pending". I believe my noble friend said that "pending" referred to arrangements which are on the statute book but which have not yet come into force. That cannot, therefore, mean looking at a future electoral system for the House of Commons. I believe that is the fear behind objections to this clause.
I have a slight problem. The noble Lord, Lord Norton, is rightly adamant about the need for political education. The noble Lord devotes his life to that. The Crick report has established the principle of citizenship in schools. But a whole group of people have not received such teaching, either because it did not take place at university or because the teaching of citizenship was not allowed in school for a long period of time. Those people are electors and they should be given the opportunity to find out more about the way in which the country and the administration operate.
The noble Lord, Lord Mackay of Ardbrecknish, has perhaps accepted that there is a role for the commission in that regard--although he may withdraw his amendment in favour of that tabled by the noble Lord, Lord Norton. Again, I find it strange specifically to rule out the question of Europe. It rather implies that this country has no connection with Europe. Whether we like it or not, and whether we are pro-Europe or anti-Europe, it is a fact of life. We have connections with Europe and they will continue. Any voter education programme should explain the role of this Parliament vis-a-vis the institutions of the European Union as well as explaining the mechanics of voting.
The noble Lord, Lord Mackay, asks what is meant by "institutions". To me, it means not what the Commission says, but how it works--how it functions, what its relationship is with the European Parliament, and how that functions. That is what we are talking about when we talk about the "institutions" of Europe. I do not accept that information cannot be provided factually. With the greatest respect, to say so is absolute nonsense. So many commissions, including the Neill commission, have been impartial in their consideration. I cannot see why it is not possible for them to explain the institutions of Europe or of this country with the same impartiality. I find the opposite argument very difficult to accept.
Political education is essential for a healthy democracy. I believe that the previous government accepted that when, for instance, they set up the Westminster Foundation for Democracy in 1992. That was designed to provide advice to institutions and electors overseas. Many of us took part in Westminster Foundation delegations, particularly to the new democracies in eastern Europe doing exactly that, in an impartial and, we hope, professional way. I believe that the electoral commission will be independent, just as the Westminster Foundation for Democracy is independent, and that it should be able to perform that role. I can see no reason why it should not. It is right that any money allocated, whether it is spent by the commission itself or allocated to other bodies, should be used only for education purposes and not for propaganda.
Viscount Cranborne (Other)
My Lords, I am glad, once again, to follow the noble Baroness, Lady Gould. I believe we had similar exchanges in Committee on this very clause. I am also extremely glad that the noble Baroness mentioned the Westminster Foundation--a body that she acknowledges was set up by the previous government and one that I was privileged to serve on for a very short time before I was translated to this House in a ministerial capacity. Unfortunately, therefore, I was not able to experience the good work undertaken by the foundation for very long. However, I certainly took to heart the message that the foundation was established to propagate, as indeed did the noble Baroness.
During my time as Leader of the House, I tried in a small way to contribute towards the efforts made by this place, especially in conjunction with another place, to ensure a greater knowledge among the young of how Parliamentand our political system works--or, more accurately, I sometimes think, does not work. When this clause was debated in Committee, I was very struck by the approach taken by a number of speakers, although, I hasten to add, I do not believe that the noble Baroness, Lady Gould, was one of them. On realising that the Government's argument was perhaps rather weaker than they would like, they immediately fastened on to a few of the objections that some of us had raised and accused us of wanting to keep the electorate in ignorance. Indeed, I believe that my noble friend Lord Norton referred to this during the course of his earlier remarks. I do not resent that; it is a perfectly usual political ploy. Those of us who have been around for a bit recognise it for what it is: if you cannot answer the arguments set up against you, you invent one and attribute it to your opponents and then try to ridicule them on that basis.
As my noble friend said, this is not about a division in your Lordships' House as regards who is in favour of political education and who is not. All of us recognise that this is an area of great importance, especially at a time when people are increasingly uninterested in politics and seem to be unaware of the system that protects, or should protect, their liberties. I hope that we can lay that particular canard to rest. I am sure that the Minister will not be tempted to revive it because it will not fly--it is a canard imaginaire, if ever there was one.
The truth of the matter was, as usual, immediately spotted by my noble friend Lord Norton. This commission will consist of very great men and women. As we have observed during the passage of the Bill through this House, they will be selected for their enormous wisdom and not, perhaps, for their recent experience at the coalface of politics. We have decided that that would not be a suitable immediate experience for them. But, nevertheless, they will be selected as very great and good men and women of unimpeachable character, neutrality, judgment and wisdom. Of course, they must also be unpartisan and neutral. We are asking them to undertake an extremely difficult job--that is, before we get to the provisions in Clause 12.
Clearly the commission's job will be extremely complex and difficult--at least, the Government find it so. Indeed, they would not have felt the need to rewrite such a very large proportion of the Bill if that task were simple and easy to define. If it is difficult to define and to lay out in this enormous and weighty piece of paper, I suspect that the task we are asking the commission to undertake will be extremely difficult in itself.
In Clause 12 we are doing the classic piece of mixing apples and oranges. We have a set of apples into which, suddenly, we have injected an orange; in other words, we are asking the commission to do something completely different from anything else contained in the Bill. As my noble friend explained, we had an argument about the Long Title to the Bill. I do not intend to go into that in detail. However, no matter what the Minister said, it really stretches the imagination a little to suggest that the Long Title in any way covers Clause 12. I can only suppose that the phase, "for connected purposes" is alleged to cover Clause 12. I am not sure that that is exactly the same sort of phraseology as the gracious Speech at the opening of Parliament when everything including the kitchen sink can be put in under the phrase,
"other measures will be laid before you".
We are talking about a specific piece of legislation in which highly complex matters of a fairly clear kind are being proposed. What we are now proposing to do is to graft on an entirely new function that really does not bear any relationship to it.
If I correctly understood the noble Baroness, Lady Gould, she suggested that all the commission had to do was to describe precisely the facts. That is an extremely seductive phrase. The noble Baroness always seems entirely reasonable, as indeed she is known to be. But we are talking here about some of the most contentious issues in modern day British politics, voting systems and constitutional arrangements which this Government have brought to the very forefront of political debate, and, of course, our own favourite great European home, the European Union. If the commission is to venture to describe factually electoral systems and the systems of the European Union, does not our experience suggest that the facts themselves are a matter of subjective judgment?
Baroness Gould of Potternewton (Labour)
My Lords, I have lectured on electoral systems throughout the world. I do not think that I indulged in any subjective analysis; I just explained them.
Viscount Cranborne (Other)
My Lords, the noble Baroness gets her own back for when I explained that I thought that when I stood for another place my constituents in south Dorset did not need much explanation of our present electoral system because they knew perfectly well that if I obtained more votes than anyone else I would become their MP.
One of the extraordinary features of the love of complexity of this Government, not only in matters of taxation but also in matters constitutional, is that because they are addicted to vastly complex systems we have to put in place all kinds of measures to try to explain how they work. My contention is that this is not the place to do it because by asking the commission to undertake that task it is perfectly plain that we are venturing into ground where it would fear to tread. As my noble friend Lord Mackay made perfectly clear, if the noble Lord, Lord Neill, is anything to go by, certainly that kind of member of the great and good would run a mile before undertaking anything so potentially contentious.
I suspect that the European Union is a good example of that. After all, as my noble friend Lord Mackay pointed out, the European Union spends an enormous amount of what is ultimately our money promoting the European Union. It promotes it, in its own view, entirely neutrally. It says that all it is doing is explaining the facts. As someone who is highly sceptical of its version of the facts, all I can say is that I deeply resent my money being spent by myrmidons of the European Union in Queen Anne Street putting out what they regard as an unspun fact in such a matter that I feel that my money is being filched from me and that I am being asked to pay for an extraordinarily biased spin.
The facts with regard to the European Union are highly contentious. Just to give one example, we are constantly told that there is no question that the new Euro corps will be a European army. But we also know that we were told back in 1975--I studied the election literature the other day, which only goes to prove this--that if we voted yes, we would only join a free trade area. Yet somehow that fact has been transmogrified into something vastly more complex and more integrated than that.
I could go on but I shall not. It seems to me that we are asking the commission in one breath in all the other clauses of the Bill to be Olympian, neutral, unpartisan and to act as the great platonic guardians with which we increasingly festoon our constitutional arrangements in this country. However, in the same breath, in Clause 12, we are not tempting but obliging it to venture ever more into areas in which it will find it increasingly difficult to maintain its neutrality.
If the Government's intention is to ensure that the commission is launched with the seeds if not of its own destruction then at least of the destruction of its reputation, I can think of no better way than Clause 12. Although, as always, I greatly admire the ingenuity of my noble friend Lord Mackay, in trying to improve the clause with Amendments Nos. 27 to 30, I fear that its purpose is so flawed that the only logical conclusion is to delete it, as suggested by my noble friend Lord Norton. Given the choice, I should support Amendment No. 30A.
Lord Wedderburn of Charlton (Labour)
My Lords, as we are on Report, I have to make my point before the Minister speaks. I should like to return to the micro level of the amendment. It is all very well the noble Viscount, Lord Cranborne, talking about a teacher exhibiting a point of view, but anybody in the institution in which I have taught for the past 36 years who does not say what is his point of view does not last a week.
Viscount Cranborne (Other)
My Lords, the noble Lord has made my point for me. I should have been very disappointed as an undergraduate if my teachers--poor things, having to try to teach me--had not put across a point of view. One expects that, although very often one is stimulated to reject that point of view. In that case, why ask an allegedly neutral body to do what we all expect teachers to do?
Lord Wedderburn of Charlton (Labour)
My Lords, that is exactly the point. By setting out one's point of view at the start, one has a chance of giving what the noble Viscount might call a neutral view of the problem. However, let me return to my micro point.
The noble Lord, Lord Mackay, suggested that it might be better if, in Clause 12(1)(c),
"the institutions of the European Union",
were replaced with a reference to the electoral system and functions of the European Parliament. On that as on all other issues relating to the European Union, one should take a pragmatic view. It is impossible to set out the system of government of the European Parliament without describing its relationship with the other institutions. I might prefer different drafting in the Bill, but what the noble Lord suggests is impossible, because it would not be honest with the audience. It would be essential to explain the place of the Commission--particularly now, with the dual channel--and the place of the Council. That is a small point, but I hope that the noble Lord will consider it.
Lord Lamont of Lerwick (Conservative)
My Lords, I support the targeted amendments of my noble friend Lord Mackay, but if they are not acceptable, I would prefer to go along the road suggested by the noble Lord, Lord Norton of Louth, with the support of the noble Viscount, Lord Cranborne. My noble friend Lord Hodgson identified the basic flaw in the clause. It is a mistake to ask a regulator to combine its regulatory role with an educative function. It is as though we were to ask the noble Lord, Lord Neill, simultaneously to rule on the way in which Members of this House conduct themselves and declare their interests and also to perform some educational function about the role of the House of Lords or lobbying in Parliament. It might be as though we were to ask the Financial Services Authority to propagandise about the importance of the financial services industry for this country.
The reason that that is a mistake is because it is a confusion of the main purpose for which the body has been set up. It could only be a distraction and mean that the commission would do its job less effectively. The noble Baroness, Lady Gould, made a very interesting speech. She said--
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, is it the core of the noble Lord's argument that regulators should not conduct any form of education or advice for those whom they seek to regulate? If that is the case, there are many regulatory bodies which carry out profoundly important matters of education to achieve a degree of regulation and to make it easier.
Lord Lamont of Lerwick (Conservative)
My Lords, it is one thing for the Financial Services Authority to explain to practitioners in the City of London how the rules apply, why conflicts of interest arise and why certain rules are necessary. That is completely different from educating everyone in the country from John O'Groats to Land's End about the City of London. The Minister has given a totally inappropriate analogy.
Baroness Gould of Potternewton (Labour)
My Lords, I thank the noble Lord for giving way. I declare an interest as a member of a regulatory body. We see as one of our functions to be able to educate the electors to make sure that they do not face problems in the future if they have them now. I cannot see that there is a divorce between a regulatory body and its educational role.
Lord Lamont of Lerwick (Conservative)
My Lords, I am not sure to which regulatory body the noble Baroness refers. But, as I have just said, there is a difference between educating the people immediately affected by regulation and trying to educate the whole country. The regulatory commission is essentially a regulator of political parties. It might be legitimate to say that it should explain to political parties what its purpose is and why this or that rule is necessary. That is completely different from taking on the huge burden of educating the whole country, not just about what it is doing but about all kinds of very difficult and contentious political questions.
In her interesting speech, the noble Baroness said that they do that in Australia so why should we not do it here? It has always seemed to me that one of the worst arguments for extending the role of government in any respect is merely to say that because something happens elsewhere, it ought to happen here. As a legislature it is our job to probe why an extension of functions is necessary and how far that should go.
I would be more convinced of the case that has been put forward and more reassured that this is not going to be a distraction from the real purpose of the commission if we were to be told something about the scale of the task to be attempted. We are vaguely told that it is to educate the public. What does that mean? How much money is going to be spent? I know the Minister will be unable to answer that question. How many extra staff will be needed and what proportion of the commission's time is to be spent on education?
If we are to be persuaded that this measure is remotely appropriate, it would be sensible to have some idea of the scale on which this very ambitious task is to be attempted. Otherwise it makes no sense to take away money that might have been spent on the education budget. I would need a lot of persuading that money spent on educating people about the institutions of this country would not be better spent in schools. How much is to be taken away from the education budget if this new provision is competing with that budget?
The noble Baroness made an interesting point. She said that the teaching of civics had grown up only relatively recently in this country. One of its purposes might be to reach out to that part of the public that had not had the benefit of the increase in civics education in recent years. That is all right, but how is the commission to do it? By what method is it going to reach out to every household in the land? By what methods will it communicate?
In the absence of, I submit, very reasonable questions of that kind, the whole purpose seems ill-focused, ill-thought out and in conflict with what is a very difficult job. I believe that this is a terrible distraction for the commission. Notwithstanding the interesting remarks of the noble Baroness, Lady Gould, I believe that it is a duplication of what is happening elsewhere in the system. That is why we have an education budget and adult education courses. We all know that many questions relating to the validity of, or alternatives to, our electoral system are discussed endlessly in O-levels, A-levels and in politics courses in universities.
The noble Baroness wondered why there was so much, as she put it, venom attached to this Bill. The reasons why I believe there to be so much anxiety, rather than venom, in relation to this issue are those given by my noble friend Lord Cranborne; that is, a distrust that these matters will be wholly dispassionately and factually discussed. When my son was studying for his A-levels, inevitably he had many questions about alternative electoral systems. He once asked me what the arguments were in favour of the first-past-the-post, single majority system. To the best of my ability I attempted to explain the issue to him and dealt with the inevitable questions about fairness. At the end of our discussion, he said to me, "Well, I think I'll aim off what you said for the benefit of the examiners". I am sure that for many reasons he was right to do that. We know that certain questions are not simply factual and that certain arguments will not be resolved without resort to debate about different and competing values.
I agree with the noble Baroness that it is perfectly legitimate to argue that political education in this country should extend to an understanding of the institutions of the European Union. Of course that is right. One cannot separate the European Parliament from other institutions. I have no problem with the idea that pupils in schools or elsewhere in the educational system will be told about the institutions of the European Union, whatever reservations I may have about their effectiveness, their cost and their functioning.
However, as my noble friend Lord Cranborne said, one worries about how that educational task will be carried out. Will it be carried out factually? Will it be totally divorced from the massive propaganda effort that we already have in this country from the European Union via its office not far from this House where it spends huge amounts of money on so-called factual information? It spends money on such facts as (it is alleged) millions of jobs depend upon the European Union--it took the National Institute of Economic and Social Research to show that that was a totally bogus claim. It also put forward the very arguable claim that the European Union has preserved peace in Europe.
Therefore, I believe that it is doubtful that we shall receive purely factual information. We have not heard anything about the body's funding, the amount of money involved or where the money will come from. I should like to be assured by the Minister that it will not be simply a distributor of propaganda from the EU and its institutions.
Lastly, I am grateful to the noble Baroness, Lady Gould, for clarifying and reassuring me about the word "pending". I should be grateful if the Minister would confirm that for my benefit.
Lord McNally (Liberal Democrat)
My Lords, first, I claim one piece of consistency throughout the deliberations on this Bill. I have argued constantly that the Neill committee is not the last word on these matters and that it would be called in aid when one side agreed with it but that, when that was not the case, the committee would be quietly forgotten. As I said before, I believe that some of the work carried out by the Neill committee was excellent. It provided some good grounding for this Bill and for other legislation. However, I also think that it missed some very open goals. I had hoped to get that speech out during my noble friend's absence but I see he has crept back.
I also think that the noble Baroness, Lady Gould, is absolutely right. Behind some of the silky speeches we have heard this evening are the darker fears that haunt certain Members on the Conservative Benches. One of the hobgoblins they fear is that this clause is a cunning device to allow future campaigns on Europe and proportional representation. That is why every so often during the speeches there is a sudden, swift right turn into a good old piece of Euro-bashing. I do not think that there is in this clause any such intent or any possible use of the clause for such a purpose.
What has run through statements on both sides is an acceptance of what I would describe as a deficiency in civic education in this country, which in any democracy, becomes a threat to that democracy. It is an interesting thought that probably among the best civically-educated generation were the troops in the Second World War. It has often been said that the Labour landslide of 1945 had more to do with the Army Education Corps than almost any other single body. It made troops aware of their rights and responsibilities.
I also think that the noble Lord, Lord Norton of Louth, and the noble Viscount, Lord Cranborne, came through with arguments which are often used to resist an idea--"Well, it's a good idea but not in this Bill; not in this way, not here, not now". Then, if that does not work, try, "Not by these people: we like these people and we do not want to burden them with too much work". As I say, they are silky excuses for inaction but they are dodging the real issue. I shall save the Minister making the point if I say that so far as I am concerned these are Conservative "ignorance-is-bliss" amendments. On constitutional reform, the noble Viscount, Lord Cranborne, made the point that this--
Lord Norton of Louth (Conservative)
My Lords, will the noble Lord give way? I hear what he says and should be grateful if he could identify at what point I fell foul of any of the objections he claims. I am all in favour of action this day; I am in favour of educating all the electors referred to by the noble Baroness; and, if the noble Lord wishes, I could even recommend the books that I think all should read--but modesty forbids. I believe that the arguments can be put in a balanced way, even though one might express a conclusion at the end. My point is that I am not sure that this body has the relevant qualifications. I want its work to be done by people even better qualified, in a way that this commission is not.
Lord McNally (Liberal Democrat)
My Lords, I heard the noble Lord's speech and began to think I had not heard one like that since the AEWU tore up its rulebook. The noble Lord seemed to be arguing that only professors of politics were suitable for imparting this wisdom to the public at large, whereas, as we know, a commission like this would acquire an expertise which would fully enable it to do this job.
I do not have the fears that have been expressed from these Benches. It is a role which is undoubtedly additional to the main purposes but is in no way contradictory to them. Let us be under no illusion. Perhaps I may say, in answer to the noble Lord, Lord Norton of Louth, that just as, if the commission does the work with the EU, it should not be done, that is way beyond its powers; if the EU does it, it is a sinister operation from Storey's Gate. Let us make no bones about it. If the Government brought forward a separate Bill with a separate body to do that work, some of the same speeches would express the same suspicions.
I see no reason why Clause 12 should not be adopted and the responsibilities that it gives the commission be carried out with neutrality and independence. Perhaps I may give some advice to the noble Lord, Lord Mackay. He is obviously like one of those guys who wander into a fight in a bar and tries to reason with the two sides. If I were him, I would get out of the way. Let us test whether or not we want Clause 12. We certainly want it.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, this has been a good and hugely entertaining debate, which I have enjoyed immensely. The issues are those on which we have had a "knock about" before. It seems to me that we have before us a choice between the Exocet and nuclear options. I suppose I am rather tempted to agree with the noble Lord, Lord McNally. Perhaps if Conservative Lords opposite really believe in the strength of their argument on the nuclear option, they should test the opinion of the House at some point--perhaps not this evening--and be honest about it. It seems to me that perhaps that is the right way forward.
This is an important function for the commission to have and to hold. Let us think about the turnout in Westminster by-elections, some of which are to be held on Thursday; the turnout in local government elections; and the turnout in European parliamentary elections. If we are trying to strengthen the roots of democracy, it must be in all our interests to ensure that we deal with ignorance and lack of knowledge and understanding of political systems.
We remain convinced that this is a proper function for an independent electoral commission. I believe that the noble Baroness, Lady Gould, made reference to the Australian and New Zealand commissions, which undertake this work properly. It does not seem to compromise their function. I do not accept that this is a dangerous task to give to an electoral commission. I remember when we debated the Representation of the People Act earlier in the year that noble Lords opposite made the argument and put the case for the commission having a far wider remit than the narrow role which some of them seem to have been tempted into suggesting today. They suggested that it should carry out research and development work. That seems to sit side by side with much of this important work. I do not hear a convincing argument from the Benches opposite against us ensuring that the commission can carry out such work.
The hobgoblins and sinister plots have been conjured up by noble Lords opposite to argue against an independent electoral commission conducting educational programmes. Perhaps I may ask the question: if the commission does not do such work, precisely what sort of body would be appropriate to carry it out? What would be its composition? How would we set it out? How would it relate to the work of the electoral commission? I have not heard any such arguments put convincingly this evening. I listened carefully to the comments made by the noble Lord, Lord Norton of Louth. I could foresee a snatch squad of armed Lords Norton of Louth coming forward professing wisdom in all our schools and places of education, knowledge and wisdom. Perhaps I might even be tempted to trust an armed snatch squad of Lords Norton of Louth doing precisely that work. I believe that most people would benefit from it. But how would that other body be regulated and organised to carry out that work? It seems to me that the work of the commission is precisely that which should be allied to the important educational role.
I am entirely with noble Lords opposite when they seek to constrain what the body might do to describing the mechanics and functions of and ways in which bodies such as the European Parliament or systems of election might work without loading that education in some way to add a preferential line of argument to one system or another. That seems to me to be entirely right and proper. These matters must be focused on education and nothing else.
The idea that the commission itself might be a vehicle to promote public participation in elections simply by talking up the grand European project or promoting the euro is the stuff of fantasy. If it talks about the European Union, it will not talk about the euro or anything else which advances one side as opposed to the other.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, I thank the Minister for giving way. Perhaps he will list what it is he understands the commission should interpret as,
"the institutions of the European Union".
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, the European Parliament, the Council of Ministers, perhaps the work of the Commission. Those seem to be relevant to consideration of what European institutions might be. No doubt I could come up with a longer list if given time. But the mechanical, functioning, working parts of the institutions of the European Union ought to be known to the general public, particularly if they are involved in an election about them. I am sure the noble Lord will accept that, if we are seeking to provide wider knowledge about political institutions in this country, we might want to run through their mechanical parts. That seems to be entirely relevant.
Amendment No. 28 would require that any promotional campaign undertaken by the commission in one part of the United Kingdom should not concern itself with electoral arrangements in place confined exclusively to another part of the United Kingdom. I know that the noble Lord thinks this is all about softening up the electorate for a referendum on the voting system--that was certainly the argument put forward by the noble Lord, Lord Hodgson. This point was raised in Committee and I replied then that I thought it was a point on which the commission would wish to tread extremely carefully.
Having said that, I must again stress that the point of the provisions set out in the clause is not to encourage the commission to proselytise about the merits of particular arrangements. It will simply be concerned with promoting awareness of its existence and purpose. To that extent it would be wrong for material circulated by the commission in Scotland, let alone anywhere else, to dwell on the advantages of the additional member system.
Lord Lamont of Lerwick (Conservative)
My Lords, is the Minister intending to come to the questions asked about giving us a rough idea of the scale of operations, the amount of money envisaged and the amount of staff involved in this educational effort?
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, I am grateful to the noble Lord for posing the question again and reminding me of the point. If I do not cover it in my concluding comments now, I shall advise the noble Lord in writing of the approximate thinking of the Government and share that with other Members of your Lordships' House.
It seems to me to be taking matters a little bit far to require the commission to prepare different leaflets for England, Scotland, Wales and Northern Ireland. That suggestion has the flavour of a Soviet-style news blackout. That a citizen living in one part of the United Kingdom might learn about the diversity of systems of government which exist as a result of devolution seems to me, generally speaking, to be rather a good idea.
The noble Lord, Lord Lamont, seemed to have difficulty accepting the point that regulators might carry out some functional educational role. I made quite a long list--Oftel, Ofsted, Ofgas, Ofwat (I was tempted to say Ofrail but thought it inappropriate), the Financial Services Commission, the Health and Safety Commission--of bodies which have to involve themselves as regulatory bodies in some form of education or another. Nobody says that that is irrelevant; that it is not appropriate or proper.
It seems to me that regulatory bodies will, from time to time, need to undertake educational work. Of course, this commission has a broader remit. But properly regulated educational activity by the commission would be of benefit and we might gather reassurance from the fact that a well-organised and regulated body like this which is involved in regulatory work is carrying out such educational functions.
Lord Lamont of Lerwick (Conservative)
My Lords, the Minister gave the example of Oftel. Would he say what educational function it has other than to telecommunications operators who are directly affected? What wider educational function does Oftel perform?
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, no doubt Oftel determines what information it publishes and why and no doubt most of it is directed at those in the business. However, it has a wider role and I am sure undertakes to produce newsletters and information about its activities which are of greater and wider benefit. I am sure that the same will apply to Ofwat and the Health and Safety Commission. Without a wider knowledge of their regulatory role, the public are not so well protected.
Lord Norton of Louth (Conservative)
My Lords, I thank the Minister for giving way and I appreciate that he has been interrupted several times. He spoke of the education in which the regulatory bodies engage, but surely they are educating people in what they are doing and can deliver. That is separate from the task which is being given to this body.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, the point I am trying to make is that part of being a regulatory body is the function of advising, informing and educating. The noble Lord, Lord Lamont, appeared to be saying that it was not the business of regulators to become involved in advising, informing and educating. I do not accept that, which is why I provided him with the list.
The breadth of the debate does your Lordships' House great credit. It has been useful and interesting and perhaps has told us more about where noble Lords opposite are coming from; they see a narrower role for the commission, while we see a broader but nevertheless properly circumscribed one.
I invite your Lordships to reject the amendment. However, I want first to answer the question asked by the noble Lord, Lord Lamont, about the costs and functions of activities. Clause 12(6) provides that the amount spent on the educational function by the commission shall not exceed the sum specified by order made by the Secretary of State with the consent of the Treasury. The funding of that function will therefore be ring-fenced from the commission's general budget. I believe that I gave that answer previously. The sum will not be appreciably more than is spent currently by the Home Office on voter registration and postal voting arrangements at general elections. Perhaps such a bench-mark will help the noble Lord.
The noble Lord also asked about the term "pending". As I explained previously, "pending" means an electoral system that has been approved by Parliament. For example, the system of elections for the Greater London Authority was pending once the GLA Bill received Royal Assent. I refer the noble Lord to Clause 12(2). I am sure that that is consistent with a previous reply.
We have had a wide-ranging, entertaining and interesting debate and it is now for noble Lords to make up their minds. I hope that noble Lords opposite feel able to withdraw their amendment.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, the answer to my noble friend Lord Lamont that departments spend money only with the authorisation of the Treasury will not come as news to him as a former Chancellor of the Exchequer. Many of us complain about the dead hand of the Treasury on everything and the noble Lord has merely confirmed that nothing much has changed.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, I thought that the noble Lord might have more insight into the dead hand of the Treasury, which is why I gave that answer.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, in many ways this has been not an interesting debate but a worrying debate because it has exposed problems with the clause. I wonder where it came from. Who suggested putting it in the Bill? It was not the Neill committee. I suggest that when the noble Lord, Lord Bassam, returns to his office tonight or tomorrow he should find out. If I were him, I would read the riot act about it.
The noble Lord was arguing for a clause which provided that the commission shall promote public awareness of its work. That was the argument when it came to Oftel, the FSA and everything else. Clause 12 gives the commission a much wider role. While I was prepared to accept at the beginning, very generously, that the commission should have a role in the electoral systems for countries, the other place, local government and the European Parliament, I did not receive a satisfactory answer about the institutions of the European Union. I do not believe--perhaps I am wrong--that the European Central Bank is an institution. Would the electoral commission become involved in that body, which perhaps would become an institution if everybody joined it? The commission will have more than enough to do.
While I listened to the debate I read the Long Title to the Bill, which refers to the establishment of an electoral, not an education, commission. The word "education" does not appear anywhere in the Long Title. I am prepared to make a half-concession that the electoral systems for the other place, local government and the European Parliament should form some part of the commission's responsibility, but this goes very much wider than that. I suggest to the noble Lord that he and his government colleagues should consider this matter very seriously. Does the Minister believe that, if the clause promotes such doubt that we have spent 1¼ hours debating the matter this evening, it is wise for the electoral commission to embark on any of this stuff in case it casts doubt on its position as the regulator of the way that political parties should behave?
If I was appointed an electoral commissioner--clearly, that would not happen because I do not fall within the various rules--and decided, as a result, to study these proceedings, the moment that I read the present debate I would not bother with Clause 12 but would leave it sticking to the wall. If one starts down some of these roads one enters into political controversy which detracts from the main purpose.
I shall, very unhappily, beg leave to withdraw my amendment, but if my noble friend goes for the nuclear option I shall certainly support him.
Lord Norton of Louth (Conservative)
My Lords, I am not convinced that the Government have responded directly to the precise points that I made in support of my amendment. The arguments advanced have been tangential to those points. I am not even sure that the draftsman of the clause has fully understood the issue, as is reflected in the marginal annotation. I say to the noble Lord, Lord Bassam, that there are alternatives to the commission. I am happy to advise the Minister on the routes that could be taken, including through the relevant professional bodies, although the alternative that he himself floated struck me as most attractive! However, because I do not believe that the point has been addressed by the Government, I stick with the arguments that I advanced. The noble Baroness, Lady Gould, at the beginning expressed the opinion that some noble Lords spoke with vehemence. I do not speak with vehemence; I speak as I do because I believe that I am right. I beg to move.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
moved Amendments Nos. 31 to 33:
Page 131, line 29, leave out sub-paragraph (7) and insert--
("(7) For subsection (5) there shall be substituted--
"(5) As soon as practicable after the Electoral Commission have submitted a report to the Secretary of State under this Act, he shall lay before Parliament--
(a) the report; and
(b) (except where the report states that no alteration is required to be made in respect of the part of the United Kingdom to which it relates) the draft of anOrder in Council for giving effect to the recommendations contained in the report."").
Page 133, line 2, leave out paragraph 4 and insert--
("4.--(1) Section 4 (Orders in Council) shall be amended as follows.
(2) In subsection (1), for the words from ", whether with or without modifications," to "Boundary Commission" there shall be substituted "to the recommendations contained in a report of the Electoral Commission under this Act".
(3) Subsection (2) (draft Order implementing recommendations with modifications) shall be omitted.").
Page 136, line 47, leave out from ("for") to end of line 48 and insert ("the words from ", with or without modifications," to "the Commission" there shall be substituted "to the recommendations contained in a report of the Electoral Commission".").
On Question, amendments agreed to.
Clause 16 [Transfer of property etc. of the Boundary Commissions]:
Lord Lyell (Conservative)
My Lords, if Amendment No. 34 is agreed to, I shall not be able to call Amendment No. 35.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
moved Amendment No. 34:
Page 11, line 41, leave out ("in accordance with section (Boundary Commissions: transfer of functions)") and insert ("by virtue of section 15(1)").
On Question, amendment agreed to.
[Amendment No. 35 not moved.]
Clause 17 [Transfer of functions of Local Government Commission for England]:
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
moved Amendments Nos. 36 and 37:
Page 12, line 6, after ("transferring") insert ("(to any extent)").
Page 12, line 10, at end insert--
("(1A) An order under subsection (1) may make provision for--
(a) transferring (to any extent) any relevant function of the Secretary of State to the Commission;
(b) terminating (to any extent) any relevant function of the Secretary of State or the English Commission without transferring it to the Commission or the Boundary Committee for England;
(c) modifying (to any extent) any relevant function of the Secretary of State;
(d) preventing the Secretary of State from exercising any relevant function (including one so modified) unless he has sought and obtained such advice of the Commission as may be prescribed by the order, or authorising him to seek such advice in connection with the exercise of any such function;
(e) modifying any relevant or other function transferred by an order under subsection (1) so far as it is to be exercisable by the Commission or the Boundary Committee for England;
(f) conferring on the Commission functions with respect to electoral areas or other electoral arrangements relating to the Isles of Scilly.
(1B) In subsection (1A) "relevant function" means (subject to subsection (1C)) a function under--
(a) any of sections 13 to 15 and 17 of the Local Government Act 1992 (local government changes in England),
(b) any of sections 13, 14 and 17(4) of the Local Government and Rating Act 1997 (parishes and parish councils) so far as having effect in relation to electoral arrangements within the meaning of Part II of that Act, or
(c) section 2(4) of the Greater London Authority Act 1999 or Schedule 1 to that Act (assembly constituencies).
(1C) Nothing in subsection (1A) authorises the transfer to the Commission of any power of the Secretary of State under any of the provisions mentioned in subsection (1B)(a) to make orders other than those effecting electoral changes within the meaning of Part II of the Local Government Act 1992; but, subject to that, the functions which may be transferred by virtue of subsection (1A) include functions with respect to the making of orders by statutory instrument.").
On Question, amendments agreed to.
[Amendment No. 38 not moved.]
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
moved Amendment No. 39:
Page 12, line 29, at end insert--
("(6) The Secretary of State may pay to the Commission such amount as he may determine to be appropriate by way of reimbursement for any expenditure incurred by them which is attributable to the provision by them of advice to the Secretary of State in pursuance of an order under subsection (1).").
On Question, amendment agreed to.
Clause 18 [Transfer of functions of Local Government Boundary Commission for Scotland]:
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
moved Amendments Nos. 40 to 42:
Page 12, line 31, after ("transferring") insert ("(to any extent)").
Page 12, line 35, at end insert--
("(1A) An order under subsection (1) may make provision for--
(a) transferring (to any extent) any relevant function of the Scottish Ministers to the Commission;
(b) terminating (to any extent) any relevant function of the Scottish Ministers or the Scottish Commission without transferring it to the Commission or the Boundary Committee for Scotland;
(c) modifying (to any extent) any relevant function of the Scottish Ministers;
(d) preventing the Scottish Ministers from exercising any relevant function (including one so modified) unless they have sought and obtained such advice of the Commission as may be prescribed by the order, or authorising them to seek such advice in connection with the exercise of any such function;
(e) modifying any function transferred by such an order so far as it is to be exercisable by the Commission or the Boundary Committee for Scotland.
(1B) In subsection (1A) "relevant function" means (subject to subsection (1C)) a function under any of sections 13 to 21 of, and Schedule 5 and paragraph 1(2) of Schedule 6 to, the Local Government (Scotland) Act 1973.
(1C) Nothing in subsection (1A)(a) authorises the transfer to the Commission of any power of the Scottish Ministers to make orders under any of the provisions mentioned in subsection (1B).").
Page 13, line 20, leave out ("of the functions transferred by") and insert ("functions in consequence of").
On Question, amendments agreed to.
Clause 19 [Transfer of functions of Local Government Boundary Commission for Wales]:
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
moved Amendments Nos. 43 to 46:
Page 13, line 23, after ("transferring") insert ("(to any extent)").
Page 13, line 27, at end insert--
("(1A) An order under subsection (1) may make provision for--
(a) transferring (to any extent) any relevant function of the National Assembly for Wales ("the Assembly") to the Commission;
(b) terminating (to any extent) any relevant function of the Assembly or the Welsh Commission without transferring it to the Commission or the Boundary Committee for Wales;
(c) modifying (to any extent) any relevant function of the Assembly;
(d) preventing the Assembly from exercising any relevant function (including one so modified) unless the Assembly has sought and obtained such advice of the Commission as may be prescribed by the order, or authorising the Assembly to seek such advice in connection with the exercise of any such function;
(e) modifying any relevant or other function transferred by an order under subsection (1) so far as it is to be exercisable by the Commission or the Boundary Committee for Wales.
(1B) In subsection (1A) "relevant function" means (subject to subsection (1C)) a function under--
(a) section 30(3) or (4) or 31(3) of the Local Government Act 1972 (restriction on community applications during and after reviews), or
(b) any of sections 54 to 60, 69 and 71 of, or paragraph 1A of Schedule 11 to, that Act (local government changes in Wales).
(1C) Nothing in subsection (1A) authorises the transfer to the Commission of any power of the Assembly under any of the provisions mentioned in subsection (1B)(b) to make orders other than those effecting alterations in electoral arrangements within the meaning of Part IV of the Local Government Act 1972; but, subject to that, the functions which may be transferred by virtue of subsection (1A) include functions with respect to the making of orders by statutory instrument.").
Page 14, line 3, at end insert--
("( ) Nothing in this section shall be read as affecting the generality of subsection (6).").
Page 14, line 7, leave out ("transferred by") and insert ("in consequence of").
On Question, amendments agreed to.
Viscount Astor (Conservative)
moved Amendment No. 47:
After Clause 19, insert the following new clause--
:TITLE3:COMMISSION TO BE PROHIBITED FROM INSTITUTING CRIMINAL PROCEEDINGS
(" . The Commission shall not themselves institute criminal proceedings against any person in any court in the United Kingdom.").
Viscount Astor (Conservative)
My Lords, in moving Amendment No. 47, I shall speak also to Amendment No. 48. I shall be reasonably brief. They are probing amendments which seek to clarify the position in regard to investigations and prosecutions. I do not think that the position is at all clear at the moment.
These issues were raised in Committee. In responding to the points made, the noble Lord, Lord Bach, said:
"So far as concerns the electoral commission, where a party member complains about possible fraud, either in his or in another party, I imagine that the electoral commission will investigate. It may, as may anyone, bring in the police if it feels that it needs to do so. If it does, then in the normal way the question of whether or not a prosecution takes place will, in the last resort, depend on the Director of Public Prosecutions".
The noble Lord then went on to say that,
"powers exist under the Bill to prosecute and the electoral commission will be in a position to do so. The position often changes when the police are brought into matters of this kind".--[Official Report, 12/10/00; col. 528.].
Those are interesting words. We need clarification on two issues. The noble Lord used words such as "I imagine" and "may", which was perfectly reasonable in Committee. However, I hope that he will be able to go further today. The noble Lord, Lord Bach, said that the police would be involved if the commission felt the need to involve them. Does that mean that the commission could itself investigate criminal offences created by the Bill, such as those of evading restrictions on donations or giving false expenditure reports? Who would prepare a file for the Director of Public Prosecutions? Would it be the commission or would the matter be handed over to the police and it then become the responsibility of the police? Where would the line be drawn?
Of particular importance, would there be circumstances in which the commission itself would be in a position to prosecute? The Minister's words in Committee gave me that impression and I should like to know whether or not that is the case. What would be the position in regard to prosecutions in Scotland and Northern Ireland? It would be very helpful if the Minister could explain that.
I assume--I may be wrong--that the commission would not conduct any criminal investigations or prosecutions. It would seem unwise for that to be part of its duties. In the light of what the Minister said, I should be grateful if he can confirm the exact situation. I beg to move.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
My Lords, I am generally grateful to the noble Lord and the noble Viscount for tabling these probing amendments. The position was certainly not clear from my remarks last time. I intervened later to reverse what I had said but the noble Viscount has now given me the opportunity to make the Government's position clear and I shall attempt to do so.
This group of amendments is concerned with the commission's powers in relation to criminal proceedings and investigations. The general powers of the commission in relation to enforcement of the provisions of the Bill are set out in Part X. Nowhere is it suggested that the commission should have the power to institute criminal proceedings in the same way as, for example, Customs and Excise. The Neill committee made clear its view that prosecutions in respect of breaches of the law relating to controls on donations and election expenses should be placed in the hands of the Director of Public Prosecutions and should not be the concern of the commission. The noble Lord's amendment accords perfectly with that policy. But we believe that the amendment is unnecessary. If it were the intention that the commission should be able to institute criminal proceedings, it would have been necessary to make explicit provision to that effect. There is no such provision; therefore the commission does not have that power.
While the Neill committee did not intend that the commission should be a quasi-judicial body, it clearly did intend that it should have powers of investigation. The committee recommended that those powers should extend to investigating suspected breaches of electoral law. Against that background, Amendment No. 48 seems to propose a rather narrow role for the commission.
The noble Lord's proposition in this probing amendment would appear to be that, if a piece of evidence or an allegation comes to the notice of the commission which gives rise to the merest suspicion that an offence may have been committed, it should immediately be referred to the police. It is quite possible that the commission may attract a good number of allegations which may give rise to mere suspicion. We do not think it sensible to require that the commission should immediately place such suspicions at the door of the police.
The commission will be expert on the law in this area and it would therefore be entirely appropriate for its staff to undertake a preliminary investigation where it has cause for concern. Once it has established prima facie evidence of a criminal offence, it may--I choose that word carefully--then hand over its findings to the police or the Crown Prosecution Service for further investigation. An alternative course would be for the commission to initiate civil proceedings under Clause 144, in which case a reference to the police or the CPS might be inappropriate.
In short, the commission will be an enforcement authority but not a prosecuting authority. We should allow it space to undertake its proper enforcement role. I hope that my answer has cleared up some of the misunderstandings that may have developed as a result of our debate in Committee.
Baroness Park of Monmouth (Conservative)
My Lords, perhaps I may ask the noble Lord a question; I hope I shall be forgiven if I am asking it at the wrong moment. Suppose that some strange circumstance arose and an offence was committed that the commission did not want to pass to the police or anyone else. Would it then be open, for example, to Parliament or to the police to pursue the matter? I am not quite clear whether the commission is the be-all and end-all of the decision on whether to take action.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
My Lords, I do not think that the powers of any other authority or individual are curtailed by the existence of the commission. In other words, other people's rights to investigate and bring charges (to approach the police, at least) remain.
Viscount Astor (Conservative)
My Lords, I am grateful to the noble Lord for his helpful explanation. It would be wrong for the commission itself to be involved in prosecutions. That would be the wrong role. I am grateful to the noble Lord for clarifying the position. I beg leave to withdraw the amendment.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
My Lords, in moving this amendment, I shall speak also to government Amendments Nos. 50, 52 and 81, as well as Amendments Nos. 51 and 80 tabled in the name of the noble Lord, Lord Mackay. Amendments Nos. 49, 50 and 52 respond to an amendment tabled by the noble Lord, Lord Goodhart, in Committee. At that stage, the noble Lord suggested that what is now Clause 21 of the Bill went over the top in applying the restrictions on candidates' descriptions to elections for parish or community councillors.
I should remind the House that the purpose of these restrictions is to bring organisations that put forward candidates at an election within the controls on parties' income and expenditure. That said, we fully accept that there is no need for such controls to apply to a minor party--that is, one that operates solely at the level of a parish or community council. It follows, therefore, that the restrictions on candidates' descriptions need not apply at that level. Therefore, the amendments modify Clause 21 accordingly. It would remain open to a minor party to register, on a voluntary basis, under Part II of the Bill in order to ensure "copyright" of the party's name.
Although we can relax the restrictions on candidates' descriptions at parish and community council elections, the Government cannot support a more general relaxation along the lines proposed by Amendment No. 51. As I have already said, these restrictions underpin the controls on donations and campaign expenditure. It has been no easy task to define a political party for the purposes of this Bill. The approach that we have adopted is to identify a political party by reference to what happens at the polls. The key defining feature of a party is that it puts forward candidates for election under a common banner. We know, for example, that a Conservative candidate in Edinburgh is a member of the same organisation as a Conservative candidate in London, or Cardiff. It is through a candidate's description that we can finger, so to speak, the supporting organisation and thereby apply the financial controls that are an important feature of the Bill.
We believe that Amendment No. 51 would undermine this whole approach. Under the amendment, it would be open to an organisation to put up candidates across the country but without the need to register as a political party. The noble Lord has tabled a number of other amendments for this Report stage with a view to closing loopholes. Whatever the prospect of the loophole in question being exploited, we feel that the noble Lord is putting forward an amendment that has the potential to create quite a large hole in the scheme of controls, never mind a mere loophole.
If this amendment were made, we could have "Independent against the Euro" or "Independent for one nation conservatism" candidates standing throughout the country in election after election. The organisations that backed those candidates would, at best, be caught by the provisions in Part VI of the Bill, but outside an election period they would not be subject to the accounting requirements in Part III, nor the controls on donations in Part IV. We do not believe that that is a consequence which is acceptable either to the Government or to the noble Lord. Therefore, I ask the noble Lord not to move his amendment.
Finally, government Amendment No. 81 to Clause 32 addresses a minor drafting point that arises from changes made to the Bill in Committee. We are grateful to the noble Lord, Lord Mackay, for having spotted this point, but I hope that he will accept the Government's amendment in preference to his own. Schedule 23 will, in fact, apply to a minor party. Indeed, it is by making the appropriate declaration required by paragraph 2 of Schedule 23 that an existing registered party will be registered under Part II of the Bill as a "minor party". I hope, therefore, that the noble Lord will not move Amendment No. 80 but that he will support government Amendment No. 81 when we reach that stage. I beg to move.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, the point behind this series of amendments is an important one. I shall begin by saying that I am grateful to the Minister and to the Government for bringing forward their own amendments relating to candidates for parish and community elections. If we had left the position as it stood in Committee, it would have meant that people who were standing at these lower elections--if I may so describe them--would not have been able to add anything to the word "independent". If they were the independents against filling in the duckpond, or the independents against not filling in the duckpond, they would not be able to say so. That may appear to be a trivial local issue, but I have little doubt that it could be a matter of some heat and contention in various villages. It is important that at local elections people ought to be able to add to the word "independent" up to five other words to describe what they are standing for.
I am grateful to the Minister for his response. I do not want to sound churlish when I say that I rather regret that the Government did not go a little further. My Amendment No. 51 goes that bit further. It states that a candidate who is an independent and who is standing for an election of any kind and at any level ought to be able to add up to five words to describe what he is standing for. We had a long debate on this matter in Committee and I do not intend to go over that. However, it is fair to point out, as did my noble friend Lord Norton of Louth, that the further description would enable voters to identify what an independent stood for.
I have no problem with candidates standing as independents, even when they occasionally stand in a way that is designed to try to take votes away from my party. It seems to me that one of the fundamental things about democracy is not just that one can vote freely and in secret but that one can also stand and tell the electorate what one is standing for. I do not want to speak at length at this time of night, but I worry about the kind of restrictions that the Bill occasionally imposes, often for well meaning reasons. However, they are there and they could be sorely abused in the future.
As I said, I have no problem with independents. I have no problem with an independent adding words to describe what he is standing for. As I understand the position, a Labour candidate could add some words to the description on the nomination paper. At a certain period in history it was popular in Scotland for political parties to coin the phrase, "Labour against the poll tax", for example. I am not sure what that added to the Labour Party's candidature, but they thought that it add something. If that is still allowed under the Bill--I think that it is--I cannot see why someone should not be able to coin the phrase, "independent against the council tax", or independent against whatever the person wants to be an independent against.
I hear what the noble Lord said about people standing in each constituency as independents against one particular thing and not falling foul--if I may put it that way--of the political parties route. But surely the electoral commission and the courts have some role in that. Members of the Conservative Party could all decide to stand as independent Conservatives and not have to obey any of the spending or the donation rules. That cannot be a serious proposition. It would not be allowed--not that we should think of doing it for a minute. I am taking the measure to ridiculous extremes. Why, therefore, are the Government so frightened that a crowd of people will get together and say that they are independents for the euro or independents against the euro and thus manage to evade the rules? I find it hard to understand that argument.
I accept that the Government have tidied up in their Amendment No. 81 what I attempted to tidy up in my Amendment No. 80. That is fine. However, I should like the Government to go a little further and try to address the matter of why an independent standing in an individual constituency with no connection to anyone else but wanting to make a point should not be able to describe what he is standing for? If the only argument put forward is that it is in case those who are anti or pro the euro decide to use that as a loophole, I believe that there are other ways round that rather than depriving an individual of his democratic right to stand and to describe what he stands for as he sees fit, provided that that does not confuse the electorate.
Lord Goodhart (Liberal Democrat)
My Lords, I am most grateful to the Minister for having put forward an amendment which deals with the point which I raised initially in Committee about the undesirability of forcing small groups which want to put up a slate in a parish council--I refer to my old friends the Ambridge ratepayers--to go through all the rigmarole of registering as a political party in order to be able to do so.
I am reluctant to look a gift horse in the mouth, but I wonder whether the amendment goes far enough. A candidate can currently stand in parish or community elections in the name of an unregistered party, such as the Ambridge Ratepayers. So why should any group wish to register as a minor party? It was suggested that that might give some copyright protection to the name. The only restriction that I can find in the Bill is that an unregistered party is not entitled to a party political broadcast. I hardly think that the Ambridge Ratepayers are likely to qualify for one anyway. I wonder whether it would not be simpler and better in this over-complicated Bill to go one step further and take out all references to minor parties. We could then get rid of the whole of Clause 32 and parts of many others. However, I am grateful for what the Government have offered. I am merely suggesting further tidying up.
We support the principle behind the amendment tabled by the noble Lord, Lord Mackay of Ardbrecknish, but there is a risk of abuse as it is currently worded. The Conservative Party is clearly not going to field candidates under the name "Independent Conservative" in every constituency, but there are other risks. The amendment would have allowed the Referendum Party at the 1997 election to have avoided the restrictions in other parts of the Bill by standing under the title "Independents for the Referendum". Without prejudice to any decision that we might wish to take if the noble Lord were able to bring the amendment back in a form that did not lend itself to abuse, we feel unable to support him.
Baroness Gould of Potternewton (Labour)
My Lords, I understand the Government's argument about the need for descriptions to underpin the controls on donations and expenditure. It is right that the provision is to be relaxed for parish and community council elections. However, I am still anxious about the use of the word "independent", for completely different reasons from those put forward by the noble Lord, Lord Mackay.
I understand the argument about political descriptions being used to expound a political position, but what is to prevent an independent from having his occupation as a means of identification? I asked what might have seemed a simple and stupid question in Committee about what would happen if somebody changed his name by deed poll to the name of another candidate. The Minister's answer was that the middle name would count. If I went to the trouble of changing my name by deed poll, I would make sure that I did it properly and took the other person's full name. The only way to identify me in those circumstances would be to have some other words added. It would be useful to look at the possibility of adding an occupational title to the word "independent". That would get round a rather stupid anomaly.
Viscount Cranborne (Other)
My Lords, I support my noble friend Lord Mackay. We should be extremely grateful to the Government for their concessions. I wonder whether they could listen sympathetically to what my noble friend has said. For instance, if an independent were to stand in North Dorset for Dorset UDI--an increasingly worthy cause because it is Dorset soil, after all--and at the same time another independent were to stand for continued integration with the rest of the United Kingdom, however loopy those two positions might or might not be, if there were an independent willing to do that and another also standing, it would at least be convenient to know which of those two positions we were voting for if we were minded to vote for an independent.
I associate myself very much with what my noble friend has said. There is an extremely valuable tradition of independents standing for Parliament. I would greatly regret it if it were restricted in any way, particularly as the main political parties are becoming increasingly institutionalised, not least because of many of the provisions of this Bill. With all the powers that we are giving to this commission, would it not be possible to rely on its own judgment as to whether a party was trying to get around the rules by standing as independent but actually organising itself countrywide? I suspect that we would all recognise it when that happened. My noble friend has already given the example of the Referendum Party. I suspect that we all knew there was one financier for that party. It was extremely well organised during the course of the last general election. I am sure that it would have fallen foul of any independent judgment made by a neutral and Olympian commission. I wonder whether the Government's proposed amendment, although welcome in its way, does not in fact restrict the admirable tradition of independents standing for Parliament. Can we not look to the commission itself to address the very understandable objection that the Minister has put forward?
Lord Hodgson of Astley Abbotts (Conservative)
My Lords, perhaps I may also add my request to the Minister to have another look at this matter. We had a long discussion about it at Committee stage. I do not wish to rehearse all those arguments again. There is the in-built advantage of major parties; the fact that there is real importance in keeping the roots of local democracy alive for people to be able to believe that they can air a local grievance by standing for Parliament. Such people are perhaps necessarily of modest means and modest experience. They need a descriptive nomenclature as part and parcel of their arrangements.
When we discussed this at Committee stage I asked the Minister whether or not this matter did not give an in-built advantage to major parties. He was kind enough to say that it did and that that was the price of modern democracy. I would like us to find a way to make sure that that was not the price we had to pay.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
My Lords, the Government, too, would like to find a way because we also value the independents in an election, whatever stance they take. It is a healthy sign of our democracy. Our problem is exactly as I stated it when I moved my amendment. We have sought ways of trying to prevent parties evading the rules, but we cannot find any. If noble Lords opposite can produce something that avoids destroying the scheme that underpins the Bill, we would be very grateful. It is this provision which prevents, for example, Independents against the Euro-Party from escaping the controls that everyone else has to observe. It is a pity that independents cannot describe themselves, but we believe it is necessary to underpin the Bill's scheme. If I am throwing the matter back to noble Lords, they will understand why I am doing so. It is done more in sorrow than in anger. We do not have a solution to this particular problem and I am not sure that there is one.
However, I do not believe that that would preclude the commission, once it is up and running, from looking at this matter if it should turn out to be a problem or if in practice it was unfair. I am sure that the commission will be robust in the way that it considers the procedures. We would certainly not be against that. However, we do not believe that we can move on this issue in the context of the Bill.
Lord Bach (Government Whip (technically a Lord in Waiting, HM Household); Labour)
moved Amendment No. 52:
Page 15, line 11, at end insert--
("(4A) Subsection (1) does not apply in relation to any parish or community election.").
On Question, amendment agreed to.
Clause 23 [Office-holders to be registered]:
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
moved Amendment No. 53:
Page 17, line 1, leave out subsection (4) and insert--
("(4) The person registered as a party's treasurer shall be responsible for compliance on the part of the party--
(a) with the provisions of Parts III and IV (accounting requirements and control of donations), and
(b) unless a person is registered as the party's campaigns officer in accordance with section (Parties with campaigns officers), with the provisions of Parts V to VII (campaign expenditure, third party expenditure and referendums) as well.
(4A) In the case of a party with accounting units the person registered as the party's treasurer shall, in relation to the provisions of Part III, be responsible for compliance on the part of the party's central organisation (rather than of the party).").
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, in moving Amendment No. 53, I wish to speak also to Amendments Nos. 55, 57, 64, 71, 73 to 79, 278 and 279. This group of amendments relates to the role of a party's registered treasurer. The government amendments respond to points raised in Committee by the noble Lords, Lord Mackay and Lord Rennard.
The noble Lord, Lord Mackay, argued that, in order to undertake the key role of compliance officer, it was not necessary for the person registered as the party's treasurer to have overall responsibility for the financial affairs of the party. Indeed, the noble Lord saw a positive advantage in separating the two roles. I would not go so far as that, but in Committee I indicated that I accepted that, for the purposes of the Bill, it was not essential for the two roles to be combined. Accordingly, Amendments Nos. 53 and 57 redefine the role of both a party's registered treasurer and the treasurer of an accounting unit in terms solely of his or her responsibility for compliance with the provisions of the Bill.
The other amendments address the long-standing concerns of the Liberal Democrats about the impact of the Bill on their federal party structure. The noble Lord, Lord Rennard, indicated that his party's internal structures and lines of accountability could be better accommodated within the framework of the Bill if the person in charge of the party's day-to-day campaigning--namely, himself, as I understand it--instead of the registered treasurer were to be responsible for compliance with the provisions of Parts V to VII of the Bill. As I indicated in Committee, that would add a further complication to the Bill. However, arguably it would be a price worth paying if it helped to resolve the difficulties faced by one of the country's three main political parties.
The amendments provide that a party may elect to be a party with a campaigns officer. Where a party so elects, the party's registered treasurer will be responsible for compliance with the accounting requirements and the controls on donations under Parts III and IV, while the registered campaigns officer will be responsible for compliance with controls on election and referendum expenditure under Parts V to VII.
The new clause to be inserted by Amendment No. 55 makes further provision for parties with a campaigns officer. I draw the attention of the noble Lord, Lord Rennard, to subsection (1)(b) of the new clause. That would enable the person registered as a party's campaigns officer also to be registered as the party's leader or nominating officer, or both. I understand that the noble Lord is the Liberal Democrats' nominating officer and that it is his party's intention that he should also be the party's campaigns officer. That would be in order under the new clause and, therefore, that would be all right for the noble Lord, Lord Rennard.
The amendments to Clause 28 and to Schedules 4 and 23 provide for the submission to the electoral commission of the details of a party's registered campaigns officer and for those details to be kept up to date. The two amendments to Clause 32 make it clear that the provisions in respect of campaigns officers do not apply to minor parties. I beg to move.
Lord Lyell (Conservative)
My Lords, I have to advise your Lordships that, if Amendment No. 53 is agreed to, I shall not be able to call Amendment No. 54.
Lord Mackay of Ardbrecknish (Crossbench)
My Lords, in so far as some of these amendments relate to issues which I raised, I am grateful to the noble Lord for heeding them. In so far as they allow the Liberal Democratic Party to continue their federal structure, in a manner entirely consistent with my usual stance during this Bill, I welcome them as well.
Lord Rennard (Liberal Democrat)
My Lords, very briefly, I too welcome these amendments, and thank the Minister for having expressed the case for them so eloquently. They look very familiar to me, as indeed they are markedly similar to those which I put forward at Committee stage, with the exception of the change of title from nominating officer to campaigns officer. I think that is a clear improvement and makes it plain that the burden on myself and my day job will increase markedly as a result of this legislation. The amendments allow greater flexibility to all the parties in the running of their affairs. As the noble Lord the Minister said, it is especially important where responsibilities are organised on federal lines rather than in parties where perhaps the London party dictates to other local parties exactly how election campaigns should be run.
Lord Bassam of Brighton (Parliamentary Under-Secretary, Home Office; Labour)
My Lords, I have a question for the noble Lord, Lord Rennard, which is: is he on performance-related pay?