I beg to move amendment No. 20, in page 2, line 36, leave out 'chairman of the'.
Amendment No. 20 is even more important, against the background of the debates of the past hour. We have tried and, sadly, failed to inject a greater element of impartiality into the composition of the Speaker's Committee than is set out in the Bill.
People can be appointed as commissioners with the agreement of the Chairman of the Speaker's Committee. We established in the previous debate that the Chairman of the Speaker's Committee could be, for example, the Chairman of the Select Committee on Home Affairs who, for as long as I can remember, has always been a member of the governing party.
The amendment would change the wording from
with the agreement of the chairman of the Speaker's Committee
with the agreement of the Speaker's Committee".
As the Bill is drafted, the Chairman of the Speaker's Committee could agree on what was proposed and every other member of the Committee could disagree, but the assent could go forward none the less.
We must remember that the object of a Speaker's Committee is to create an element of neutrality and impartiality for the electoral commission, so that it comes not under a Government Department, but under a Committee of the House. If that is the objective, it is important that when the Speaker's Committee exercises its functions, it does so in a way that is broad-based, neutral and impartial, rather than as currently set out.
The powers with which clause 3 deals are set out in clause 1, which states:
The Electoral Commission shall be appointed by Her Majesty (in accordance with section 3)
Her Majesty shall (in accordance with section 3) appoint one of the Electoral Commissioners to be the chairman of the Commission.
Those are important powers, on which the Speaker's Committee rightly has a say. I contend that the objectives of the Speaker's Committee cannot be discharged unless we amend clause 3(2)(a) to secure the agreement not just of the Chairman, but of the Speaker's Committee as a whole. That is the purpose of the amendment.
I shall not speak at length, as I hope that the Minister will recognise the force of the argument. It would be a bad start to the life of the commission if, for example, there were disagreement within the Speaker's Committee, or a majority in the Speaker's Committee that was opposed to the motion for the address appointing commissioners, and the Chairman none the less gave his assent. The chairman of the commission could be appointed in the same way.
I was surprised to see the Bill drafted as it is. I hope that the Minister is sympathetic to the argument and will tell us that the amendment has the Government's approval.
I share my right hon. Friend's view. It seems appropriate that if we are aiming at a semblance of balance in the Speaker's Committee and at impartiality in the entire structure, the Speaker's Committee as a whole should be responsible for making the decision. The agreement of the whole Speaker's Committee, and not just of the Chairman, should be obtained.
One assumes that the Chairman of the Speaker's Committee, being a right hon. or hon. Member, would not ask for such a motion to be made if the Committee were opposed to it. One assumes that he or she would have a majority in the Committee before proceeding with the motion for such an address. However, the Bill does not provide for that. It would be possible, when members of the Committee were not in agreement, for the Chairman to proceed with the motion for an address. The Government may claim that that is highly far fetched and improbable; if so, why cannot the provision simply read
with the agreement of the Speaker's Committee"?
Such agreement would be signified by the Chairman, but there is no good reason for nominating the Chairman rather than the whole Committee. If the Government accepted the amendment, it would give a further impression that they were inclusive, as they like to claim they are; that the process was impartial; and that all members of the Committee had been consulted before the motion for the address was made.
The Bill requires the agreement of the Chairman of the Speaker's Committee before a motion is made for an address to appoint electoral commissioners. Amendment No. 20 would require the agreement of the whole Committee.
The arrangements for which the Bill provides are modelled on equivalent provisions for the appointment of the Comptroller and Auditor General. Section 1(1) of the National Audit Act 1983, which was passed under a Conservative Government, requires the agreement of the Chairman of the Public Accounts Committee before a motion for an address to appoint the Comptroller and Auditor General is made. That system works well and without a great deal of controversy. There is therefore no reason to depart from that approach in the Bill.
I expect that the Chairman of the Speaker's Committee would wish to consult his colleagues on the Committee before giving his consent to an appointment. In view of all the safeguards that we have incorporated in the measure, including the requirement to consult the leader of each of the main parties, the right hon. Member for North-West Hampshire (Sir G. Young) stretches a point in insisting that all members of the Speaker's Committee should give their consent. I was not sure whether the right hon. Gentleman wanted to provide for the consent of the majority of the Committee and for the Committee to divide, or for the Committee to try to work towards a consensus and rely on the Chairman's view.
It would be undesirable for all nine members of the Committee to be able to exercise a veto over an appointment and thereby hold the process to ransom. There should be a broad consensus for each appointment, but demanding total unanimity on every appointment is a recipe for gridlock. The Bill provides for a tried and tested approach, which has worked well for the appointment of the Comptroller and Auditor General. There is no reason for it not to work for the electoral commissioners. I ask the right hon. Gentleman to withdraw the amendment.
I am grateful to the Minister for providing the genealogy of the form of words in the Bill. However, the circumstances in the Bill are different from those in the Act that the Minister cited. We are considering sensitive appointments in a political arena. The appointment of the Comptroller and Auditor General is not in the same league as that of the chairman of the Electoral Commission. I do not seek unanimity; I do not understand how the Minister read that into the amendment. The amendment would provide simply for
the agreement of the Speaker's Committee",
which means a majority of the Speaker's Committee.
Under the Bill, there could be unanimity in the Committee against the proposal, but because the Chairman agreed with it, his view would be presented. The Minister rightly pointed out that others will be consulted, but while subsection (2)(b) covers consultation, subsection (2)(a) is the only provision that requires agreement.
I shall not press the amendment, but I ask the Minister to consider whether the precedent that he cited is appropriate for such an appointment and, on reflection, to accept amendment No. 20 on Report, or to table a form of words that would have the same impact of reducing the importance of one person on the Speaker's Committee.
I note the right hon. Gentleman's clarification of his view, and that he does not seek unanimity but wants to ensure that the Committee's view is sought. I am not opposed to that in principle. I shall not give an undertaking to include such a provision in the Bill, but I agree to consider his point.
I beg to move amendment No. 21, in page 3, line 11, at end add—
'(7) At least three members of the Commission (one of whom shall be the Chairman of the Commission appointed under section 1(5)) shall be drawn from the following categories:
We are now considering the heart of the Electoral Commission: its composition. There is a complete lack of information on that subject in the Bill. Clause 1 simply provides for the number of people who will serve on the commission and clause 3 merely provides for the way in which they will be appointed. It also identifies people—Members of Parliament—who cannot be involved in the appointment process. That does not do justice to Lord Neill's intentions.
Paragraphs 11.7 and 11.8 of the Neill report go into some detail about the composition of the Electoral Commission:
Those who have advocated the establishment of an Election Commission have been emphatic that it should be independent both of the government of the day and of the political parties. We agree. An Election Commission in a democracy like ours could not function properly, or indeed at all, unless it were scrupulously impartial and believed to be so by everyone seriously involved and by the public at large.
In our view, a number of important consequences follow. The first is that the members of the Commission should not, in the normal course of events, be people who have previously been involved in any substantial way in party politics. The second is that the UK Election Commission, unlike the US Federal Election Commission, should consist of independent persons and not of party representatives. The third is that the method adopted for choosing the members of the Commission should itself be independent of the parties. The fourth is that, nevertheless, the individual members of the Commission should be acceptable to the leaders of the main parties, who should be consulted in the course of their appointment. The fifth is that, once appointed, the members of the Commission should hold office for a considerable period of years and should enjoy a substantial security of tenure.
That requires Parliament to consider carefully the commission's composition, especially because the Government intend that, a short time after the Bill reaches the statute book, the boundary commissioners will be absorbed in the Electoral Commission. Four of the boundary commissioners will eventually be four of the commission's members.
It is noteworthy that the current vice-chairman of the boundary commissioners is, and has been as a matter of course, a High Court judge, but no such suggestion is reproduced in the Bill. The commission will be powerful and the point has been made—I think that it appears in Lord Neill's report—that it is not intended to turn it into a judicial body; but one has only to consider what business it will transact to realise that although it may not be judicial it will certainly come jolly close to being a prosecuting authority, even if it ultimately hands over responsibility for that to the Director of Public Prosecutions and the Crown Prosecution Service. The Bill creates 68 criminal offences, some of which mirror previous legislation, but many of which are entirely new. They will require evaluation, and I am certain that no prosecution will be brought without the Electoral Commission having first at least pronounced on what it believes to be irregular practice by individuals or political parties.
My concern is that, as matters stand, we could end up with a quango of the great and the good. They may not be people who have held political office in the recent past, but having listened to the debate with great interest, it is apparent to me that the Government seem to have it in mind that certain commissioners might have held office or participated in party politics. That may be a possibility, but it raises the threat that the great and the good represent, which is best avoided. The commission will have substantial powers that will have to be exercised with great care and precise understanding of what is possible and just, in relation to the operation of the legislation. Our view is that it is in the interests of all concerned that it should be seen to be an impartial body with expertise in its field of operation.
Amendment No. 21, which sets out to achieve that, identifies categories of persons, principally High Court judges and above, but also persons likely to be versed in financial and accounting matters and those who have already been involved in parliamentary standards and standards in public life. If they filled three of the nine places—four will go to the boundary commissioners, effectively as of right—two would be left for suitably qualified persons. That would be a step in the right direction.
Other similar electoral commissions have judicial input and it is extraordinary that we are going down that road without providing for it. The Minister may say, "There will be nothing to prevent those sorts of people from coming on board." I would doubtless welcome that, but it is not good enough. It is perfectly easy in this context to identify the sorts of people who would be of use as Electoral Commissioners and those who would be treated as impartial. That touches on the question of who will chair the Electoral Commission, and I would like to hear the Minister's comments on it. It was suggested earlier that the Government want appointments to the commission to be part time, except for the chairman, but that is not how the Neill committee views the matter. It wants all electoral commissioners to be part time, but says that the day-to-day management of the commission could be left in the hands of a chief executive.
There is clearly a big difference between what Lord Neill suggests and what the Government propose, so may I put some possibilities to the Minister? If there is to be a chief executive, there seems no reason why the chairman need be full time, but if a judicial figure were to be appointed full time—a judge may become chairman of the Law Commission for a period of years, for example—there might be no problem in envisaging a similar appointment. Those matters require clarification.
The background to the Bill has always been that the Government want a measure of consensus—and, more than that, that the structures should run like clockwork and there should not be continual questioning of the manner or type of appointment made. I cannot think of anything more calculated to cause discord than the appointment of people previously involved in public life, probably in politics. In the United Kingdom today, people in public life, even if they have not been active in politics, have usually expressed political views at one time or another, unless they have operated under a self-denying ordinance. I accept that people previously involved in political life may sometimes be appointed, but they should be kept in a minority on the commission.
The commission will operate a judicial system. It may be the Crown Prosecution Service that prosecutes, but ultimately the commission will call the shots, and will make recommendations that may be critical of individuals and political parties. There will be a system of civil penalties, which I assume the commission will enforce: it will not be through any prosecuting authority. If that is not the intention, it would be nice to hear from the Minister what is intended, because our discussions in the Standing Committee strongly suggested that it will be for the Electoral Commission to bring proceedings, with civil penalties, against political parties. It would be difficult to imagine anything worse, in those circumstances, than former political figures being actively involved. It is therefore the duty and responsibility of this Committee to narrow the options.
I hope that the Minister will view the amendment in the spirit in which it is presented. The Minister may have other ideas. Perhaps other categories should be considered and added to the list. It would be prudent to define who we intend to be on the commission, and to identify—as they can be identified—those who would be suitable to carry out the onerous task of managing our electoral system.
I have listened carefully to my hon. Friend, and I cannot see how the Minister could possibly disagree with the arguments that he has advanced. The Bill contains a large number of penalties, and the Electoral Commission's considerable power in exercising its functions will impinge on political parties and individuals. It will take over the functions of the boundary commissions, and it will have considerable authority in imposing those penalties.
In those circumstances, it is appropriate that, in accordance with natural justice, senior members of the judiciary should be on the commission. We are working on the assumption that there will be a maximum of nine people appointed to the commission. Amendment No. 21 proposes that at least three of them should be drawn from a list including senior members of the judiciary, the Comptroller and Auditor General, the Parliamentary Commissioner for Standards and the Chairman of the Committee on Standards in Public Life.
We want the commission to have a reputation and be respected as an impartial body. Let us face it, it will be ruling on referendums, making reports on the conduct of elections and being responsible for boundary redistribution, all of which will make it susceptible to allegations by politicians of all persuasions that judgments have been made that were partial. Although all of us collectively respect the work of the boundary commissions, and none of us suggests that it is partial in any way, when there is a suggestion that a parish should be moved in or out of our constituency, every hon. Member of every party tries to find the most impeccable reasons to argue for or against it, depending on whether they see electoral advantage.
One of the arguments that we cannot advance is that the decisions made by the boundary commissions'are biased or partial. If we thought that the commissions' membership could in any way be sullied, some hon. Members would certainly argue that, when their seats were redistributed or carved up, the boundary commissions' made erroneous judgments because of political bias or partiality somewhere in the system. Currently, that does not happen.
I am merely suggesting to the Minister that, if he does not accept the concept of including some of the people suggested in amendment No. 21—such as retired judges, Lords Justices of Appeal-in-Ordinary and the Comptroller and Auditor General—but goes down the route, as suggested earlier, of including retired politicians, however respectable, some people might argue that they are not as impartial as retired judges, or as serving judges performing a tour of duty on the commission before moving on to other things.
The Opposition are being helpful to the Minister in making the proposal. One wishes senior colleagues who have gone out to grass but who wish to do other things well. Previously, Lord Jenkins of Hilihead, for example, would undoubtedly have been regarded as one of those perfectly suitable appointments to the commission. However, now that he has tried to do some of the Government's initial dirty work in his own report, by arguing for proportional representation, no one could possibly suggest that that member of the great and the good is impartial.
Undoubtedly, Ministers would say that they could produce other retired political figures, possibly in another place, or possibly outside Parliament, who may be regarded as impartial and who could serve on the commission. Inevitably, however, there will be claims of bias or partiality if retired politicians or other members of the great and the good—regardless of whether they are writers, senior doctors or veterinarians—are appointed. People will have had opinions on politics that they may have expressed in a particular way; or at one time, they may have been a member of a political party.
Much as I dislike handing over a lot of the regulation of this place and of Parliament to outside members of the judiciary, when we should be operating our own internal controls ourselves—it is water under the bridge, and it is not an argument for today's debate—there is nevertheless a perception outside this place that, if we stick a judge on to a body, it is bound to be neutral and impartial. That is one reason why we have people such as Neill, Nolan and others telling us how to run our affairs. It is also why have we have made the House subservient to them. The perception is that they are impartial, cannot be tainted and will reach properly impartial judgments.
If hon. Members have decided that it is good enough to have the affairs of the House regulated and controlled by judges and retired judges, surely to goodness the Electoral Commission—which is responsible for ensuring the validity of the rules that get us here in the first place—should have serving on it some of the Neills, the Nolans and the other judges of this world.
My hon. Friend the Member for Beaconsfield (Mr. Grieve) is right that the Minister may say, "There's nothing to stop those people being appointed to the commission." It is true that there is nothing stopping them—but I know the pressures that Ministers are under. One establishes committees and commissions, and one is subsequently flooded with representations in favour of appointing to them members of the great and the good.
As the Minister has already said today that there is nothing stopping possibly senior, respected and retired politicians from being on the commission, he will inevitably be under pressure from those senior, respected and retired politicians to ensure that he lives up to his promise and appoints some of them. He will also be under pressure not only from senior, respected and serving—or retired—trade unionists, but from other entire ranks of society who think that they could do a good job on the commission.
If positions on the Electoral Commission were open to retired politicians, would those who appointed them be obliged to ensure that their past political affiliation was balanced by the appointment of somebody with a different political background? At least we would then know where they stood. How do we know the political affiliation of the Comptroller and Auditor General, the Parliamentary Commissioner for Standards or the Chairman of the Committee on Standards in Public Life?
My hon. Friend is right. If the Government appointed one retired politician who had been in my party, they would be under enormous pressure to appoint another from at least one other political party to be seen to give balance. The Liberals would also make a fuss and we would end up with three retired politicians on the committee in an attempt to provide balance. They may give jobs for the retired boys—one day I may be looking for one of those jobs; later rather than sooner, I hope, although some of my hon. Friends may have a different view—but we must have regard to the credibility and respectability of the commission.
I appeal to the Minister to accept the amendment, which my hon. Friend the Member for Beaconsfield moved so ably. I am merely adding my little bit of extra weight to the arguments. We need to ensure that all those outside this place regard the commission as impartial and impeccable and that there can be no complaints against it. Much as I regret it in some respects, one way to do that is to accept the amendment to include senior members of the judiciary, because they are regarded as neutral in all circumstances.
I am sure that the Committee will be pleased to hear that I intend to speak only briefly, mainly because my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) did not deal fully with my intervention a few moments ago. I asked whether whoever appointed any retired politicians to the commission would be obliged to ensure balance in political appointees so that people outside the political arena could see that there was one from a Labour background and another from a Conservative and Unionist background. That would overtly provide the balance that people expect.
I then asked my right hon. Friend whether he was aware of the political affiliation of the Comptroller and Auditor General. I should like my right hon. Friend the Member for North-West Hampshire (Sir G. Young) to explain why he has put the Comptroller and Auditor General forward as a suitable candidate for appointment to the commission. The same argument goes for the Parliamentary Commissioner for Standards. The holder of that office may be well versed in what is right and wrong for the behaviour of Members of Parliament inside and outside the House, but I am not sure what other experience they might have to contribute to the commission. I do not have the same criticism of the Chairman of the Committee on Standards in Public Life, but I would appreciate some explanation of why my right hon. Friend the Member for North-West Hampshire suggested that person as someone who might be considered for appointment to the commission.
The commission is very important. Its decisions could well have a fundamental impact on the constitution and future of this country.
It is vital that the commissioners be individuals of the highest integrity who will do their job completely without bias. I agree with both my right hon. Friend the shadow Leader of the House and my hon. Friend the Member for Beaconsfield (Mr. Grieve)—judges, either in office or retired, are in the main ideal candidates—but I want to know why my hon. Friend considers all the categories listed to be ideally suited.
I hope that the Minister will give us a little more information about who could be appointed to what I consider a vital constitutional commission that could have an impact on my future and on that of my children and their children.
Before I go into the detail of the amendment, it may help the Committee if I set out where I believe there is common ground among most of us who have spoken. First and foremost, there is no dispute that the commission must be scrupulously independent and impartial. We do not want to adopt the American model of a commission packed with old political hacks whose conflicting views are balanced in the commission as a whole.
Instead, we are following Neill's approach. The Neill committee recommended that members of the United Kingdom Electoral Commission should be chosen on a non-partisan basis and by means of a non-partisan procedure. I did not say that we wanted to include old pols in the selection process. That is not our aim. It is one thing not to want to include but another deliberately to exclude for all time.
Having listened to the Committee with care, I was persuaded by the right hon. Member for Bromley and Chislehurst (Mr. Forth), who apparently disagrees with the right hon. Member for Penrith and The Border (Mr. Maclean). That is a rare event, but one to be cherished by Government Members. The former thinks that the old pols are to be recommended on some occasions and the latter that they are to be avoided on all occasions. There may be merit in both views, and who am I to intrude?
We want to try to reflect the way in which Neill envisaged the appointment procedures developing. The procedures will be bolstered by selection criteria that will exclude, for example, those who have played a significant role in party politics. We do not want as commissioners those who are regarded as partisan because they have recently stood for election or are so identified with one political point of view that they would not be regarded as able to act impartially in resolving an issue between political parties.
Beyond ruling out those whose association with political parties or other organisations would clearly give rise to a conflict of interests, we propose to avoid being too prescriptive about who should be allowed to be an electoral commissioner. I remind the Committee that the Neill committee made no recommendation to the effect that one or more commissioners must be a High Court judge or equivalent. I accept that a High Court judge would fully satisfy the requirements of independence, impartiality and integrity, and we certainly would not rule out appointing a retired judge, should one apply. I am not sure that the Lord Chancellor would be disposed—given all the demands these days on High Court and other judges—to supply a judge to sit part-time or full-time on the commission, but we would consider an application from a retired judge, QC or someone else with suitable legal qualifications. It was rightly said that we will require the commission to be properly advised on any legal obligations that it has, and those who it comprises should be able at least to get their minds round legal problems and ensure that they can make a quasi-judicial decision, should that be required.
Similar considerations apply to the Comptroller and Auditor General, the Parliamentary Commissioner for Standards and the Chairman of the Committee on Standards in Public Life. In the case of the Comptroller and Auditor General, there would be a conflict of interest, because the Bill appoints him as the Electoral Commission's auditor, so I am not sure that the amendment stands up.
What sort of person are we looking for? We will apply the Nolan procedures, with an independent assessor, openness, an advertisement and transparent criteria and procedures for selection. We envisage that those making the appointment will not have a slate of people from which to select, but that a single recommendation will emerge from the Nolan procedures for appointment to the commission.
The hon. Member for Beaconsfield (Mr. Grieve) asked whether the chairman would be full time. We envisage that the chairman might need to deal with matters at short notice on occasion, and therefore it would be preferable to have a full-time appointment. However, we do not have a closed mind on the issue.
The hon. Gentleman asked whether it would be possible for someone to have a judicial role, leave that role and serve on the Electoral Commission for a time as chairman, and then go on to another job. If someone wished to do that, it would not be a prohibition on them being a member of the commission.
The hon. Gentleman also made the point that the most important criterion was that all members of the commission should be seen to be above the fray. They must be seen to be impartial by all the political parties about whom they may have to make a decision. We agree that that is the key issue and we want to ensure that both the chairman and the members all have such impartiality.
I hope that we have been able to reassure the hon. Gentleman that we share his desire to appoint as electoral commissioners only those with a track record of independence and impartiality. While we share his objective, however, we may differ about the means to the end. To insert the new provision into the Bill would be to impose an unnecessary constraint on the field of candidates from which appointments may be made. In those circumstances, I urge the hon. Gentleman to withdraw the amendment.
I am grateful to the Minister for his comments. I shall deal briefly with the comments made by my hon. Friend the Member for Macclesfield (Mr. Winterton). I hoped that I had made it clear in my opening remarks that it appeared to me and to those who support the amendment that judicial figures would be the most desirable appointments. However, we were prepared to accept that people in other categories could also be appointed, and we sought to identify those categories.
The Minister spoke about the Comptroller and Auditor General being the commission's auditor as well, and I accept that there would in those circumstances be a conflict. However, we proposed selecting the CAG because careful examination of the Bill shows that it is a very complex piece of financial legislation. It involves much detail, much auditing and an understanding of people's limitations in slipping up in producing proper accounts. It is clearly desirable to appoint as election commissioners people who understand auditing and the problems facing individuals who often do not have the financial knowledge to make accurate returns.
The commission's reports will be the initiating process for penalties and/or prosecutions. Doubtless, the Crown Prosecution Service will have its own views, but I am sure that if the Electoral Commission does not identify something, the CPS will never take it up. The commission's considerable powers will be able to wreck political careers and destroy the careers of party treasurers. Those are onerous duties and they will have to be exercised judiciously.
The amendment would allow the Parliamentary Commissioner for Standards and the Chairman of the Committee on Standards in Public Life to be appointed. I accept that there may be other categories of individual who might also qualify, but the holders of those offices spring to mind as they will have experience of some of the problems faced by individuals in public life. They may be able to bring their views and experience to bear on those matters.
One of my criticisms of the Bill in general, having spent hours in the Standing Committee, is that, as the Parliamentary Secretary, Privy Council Office admitted, it contains areas in which good intentions and high-minded ideals often seem to be at variance with the reality on the ground. That is a source of anxiety, because if one is divorced from the other, the Bill will prove unworkable. It will create a multiplicity of problems and incur public disrespect, and that is to be avoided at all costs.
The Minister has gone some way to reassuring me. However, he has not gone as far as I would like. He referred to eminent QCs. Far be it from me to cast doubt on members of my profession who are in a position of eminence. Nevertheless, many of them, by virtue of their work and activities in their profession will undoubtedly be public figures, with known views and preferences that have not yet been rubbed away by a period of judicial office. That, curiously, is a great leveller. If a judge has done his job properly for five or six years, people will accept his impartiality in a way that they would not have done previously, however eminent a silk he may have been.
I hope that the Minister will bear those points in mind. Even if he does not accept the list proposed in the amendment, there is good sense in having one judicial appointment on the commission. I am not happy with simply leaving a blank sheet of paper. We need more than that, and I hope that the hon. Gentleman will reconsider. We have not sought to fetter the provisions all that much—there is still some leeway—but we must be more precise about the type of person to be appointed to the Electoral Commission, particularly to the chairmanship.
As the Minister is at least prepared to think about this again, I beg to ask leave to withdraw the amendment.