Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I beg to move amendment No. 75 in

clause 21, page 12, line 9, leave out paragraph (c).

The amendment would remove paragraph (c) from the clause. Clause 21 is good and useful. It constrains the approach taken by the Electoral Commission in preparing the advice given to the Secretary of State under clause 20. I support that constraint, and I thought it so good that I tabled an earlier amendment that sought to duplicate it.

However, the clause has one significant flaw. Having set out something with which we all agree—that the Electoral Commission must have regard

''to the need to reflect the identities and interests of local communities''—

it adds that the commission must also have regard, perhaps incompatibly but equally importantly, to

''the need to secure that the numbers of electors for an electoral area for an assembly is as near as is reasonably practicable to the number of electors for the other electoral areas''.

All of that is good news, but we then come to paragraph (c), which says that the commission must have regard to

''guidance given by the Secretary of State.''

Oh dear. All that wonderful objectivity imposed on an external body, washed away in a single stroke of the pen by the Secretary of State.

If I have understood it, clause 21 (c) gives the Secretary of State scope to override what precedes it. As so often in this Bill, and others, at the end of the clause we find an absolute power of discretion for the Secretary of State, which means that what precedes it is not so much legislation detailing what will happen, as a PR release from the Government spin machine telling us what it wants us to understand that the Government will do. I do not hold that against the Minister or the Office of the Deputy Prime Minister because other Departments—the Department of Health is a particular culprit in this regard—have set out lengthy lists of things that must or must not be considered, and then undermined the whole principle of the clause by adding, ''and such other matters as the Secretary of State shall direct.''

I want paragraph (c) to be removed. I do not understand why the Secretary of State needs that guidance power. Wise as he may be, the Electoral Commission is also a wise body. It is made up of experts and advised by civil servants devoted to working in the area. I am suspicious of the Government's need for a guidance power that would require the commission to regard on an equal footing the two already potentially incompatible matters listed

and a third incompatible matter. That will further dilute the extent to which regard can effectively be had to the two important criteria already set down in the provision.

Mr Matthew Green (Ludlow, Liberal Democrat)

I do not think that I can support the Conservatives' amendment. I am sure that they will be horrified.

I share many of their suspicions of over-reaching powers given to Ministers. However, we discussed numbers earlier. Under a previous clause, the Electoral Commission may receive guidance to the effect that the numbers should not be smaller than 24 or larger than 35. The guidance to the commission could be straightforward and there must be some provision for that. Perhaps the most worrying element is that it is so overarching, but to delete it entirely would surely not create the set of circumstances that the Bill seeks to achieve.

I understand where the Conservatives are coming from, but they may have gone too far in their desire to see paragraph (c) removed entirely. I presume that they will decide to withdraw the amendment.

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

It is a delight to have the opportunity to speak on this amendment, especially as the hon. Member for Runnymede and Weybridge has said that the clause is good and useful, which is further than he has gone on earlier clauses. Clause 21(c) requires the Electoral Commission to have regard to guidance issued by the Government when preparing and submitting its advice on electoral areas and the total number of assembly members for the elected regional assemblies. It is entirely proper that it should.

I assure the hon. Gentleman, who is worried about the guidance being overriding, that it will not be. It is not only contingent on the Electoral Commission to have regard to the guidance; the guidance will have to be consistent with paragraphs (a) and (b). I am advised that it would be unlawful if it were not consistent with those paragraphs.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The hon. Gentleman's colleague, the Minister for Local Government and the Regions, has already observed that the two criteria set down in paragraphs (a) and (b) are potentially mutually incompatible and a balancing act will have to be struck. Is the hon. Gentleman saying that if a third criterion were introduced which was incompatible with the other two, it would be unlawful for the Secretary of State to give guidance that such a matter must be taken into account?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

No, I am not saying that. I return to what I said originally: that the Electoral Commission should have regard to those aspects. Of course, it must balance its various judgments about a particular region and electoral areas on which it proposes to give advice, but, ultimately, it must weigh up all the relevant factors. One reason why it is important that the Government should not rule out the option of giving authoritative guidance is precisely because there may be issues that cannot be put in the Bill if they are

particular to specific regions. For example, guidance might suggest that an electoral area boundary should not cross particular rivers or other physical features and so forth.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Is the Minister seriously suggesting that the Secretary of State is in a better position to make those decisions than the Electoral Commission, which is charged with carrying out the review? Should the commission not do that?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

While I hear what the hon. Gentleman says, Ministers are accountable and their guidance is useful to ensure that the commission is informed about the detailed views of the elected Government and is given an indication of what the Government believe to be important factors for it to weigh up. At the end of the day, the commission will give advice and, ultimately, the Secretary of State will have to make a judgment on that. Accountability will be exercised in that way.

It is not fair to suggest that the provision undermines the independence of the Electoral Commission, but it is right that the Government's views about particular issues are clearly set out for each region. The provision is the same as that used in the Greater London Authority (Referendum) Act 1998. Ministers are accountable and that gives the Government good grounds to provide advice. It would be wrong to take out the provision and rule out the opportunity for authoritative advice and guidance from the Government. They may want to add various other issues to the consideration—the precedent is there. All the arguments are in favour of the hon. Gentleman withdrawing his amendment.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

Whatever happened to openness and transparency in government? The Minister—not the Under-Secretary but the Minister of State—accused me of paranoia earlier today. Let us look at the position in which the Government are putting themselves. It is only advice that they will get, but they are apparently terrified of getting advice that they do not like and then have to disregard. They have invented a system whereby they create a nominally independent body and instruct it to give them advice but set ground rules in advance and tell it what it can and cannot advise. They have effectively constrained the ability of the Electoral Commission to give advice.

The Under-Secretary gave the example of guidance from the Secretary of State that electoral boundaries should not cross rivers. The Electoral Commission would then be constrained not to consider any option that has a boundary crossing a river. Why does the Secretary of State need such a power? Why cannot he just receive the advice of the Electoral Commission, based on its professional and objective assessment of the situation, and then make a political decision that he will or will not accept it? Why does he want a double power, first to constrain the Electoral Commission's consideration before it starts and then, having constrained it, to reject any part of the advice when it is delivered? That seems a step too far.

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I am genuinely surprised at the hon. Gentleman's line of argument. If we had not included

the paragraph but then proceeded to give informal guidance, he would have accused us of subverting the process by giving hidden and unclear advice. I believe that the appropriate way to pursue the matter is openly and honestly, by putting the provision in the Bill and indicating that we intend to give guidance, given that several considerations, such as particular physical factors, must be taken into account.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

It is very telling that the Under-Secretary thinks that the only alternatives are formal guidance as specified in the Bill or informal guidance. My preference would be that having created a competent, independent, objective body, the Government should not give it guidance.

The whole purpose of seeking advice from someone is to get advice from them. Let them do their work and then draw conclusions from the advice that they give. For example, what is the point of going to a lawyer's office, paying him a very large fee and then telling him what advice he should give before he starts?

Mr Christopher Leslie (Parliamentary Secretary, Cabinet Office; Shipley, Labour)

I can see that the hon. Gentleman is getting excited and is thinking that he has an overwhelmingly attractive line of argument. However, he argued earlier how dreadful it would be if the Government did not accept the Electoral Commission's advice as soon as it was given. Surely a way of avoiding such conflicts would be to ensure that the commission is well aware of guidance from the outset, when the process begins. That is the best way of approaching the matter.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

I do not accept that at all. We all thought that the Electoral Commission had been established to deliver an element of impartiality and objectivity. The proper procedure is that it should do its work and produce its advice. If in the cold light of day Ministers cannot accept some of it, they will not accept it. If they have not proceeded correctly, they will leave themselves open to judicial review of their decision.

The Minister wants to have his cake and eat it. He wants to be able to constrain the consideration at the outset, then reject its conclusion if he does not like it. That will be the effect. I am astonished that both Ministers are so aggressive in defending what they are doing, because it seems to me quite indefensible. That is a significant matter, and I have not heard a satisfactory response on it.

However, my hon. Friend the Member for New Forest, West (Mr. Swayne), who is charged with ensuring that progress in the Committee is swift, would, I am sure, not urge me to press the amendment to a Division at this time, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.