Clause 5

Political Parties and Elections Bill – in a Public Bill Committee at 10:45 am on 11 November 2008.

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Four Electoral Commissioners to be persons put forward by parties

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I beg to move amendment No. 15, in clause 5, page 3, line 35, after ‘(d)’, insert ‘(i) and (ii)’.

The clause also concerns the appointment of electoral commissioners put forward by political parties. I think that I am correct not to address clause 5 generally, but to limit myself to amendment No. 15.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I shall do so, and spare my remarks on the principle of the clause until later. Although it is not obvious on reading, the amendment would amend the clause, which would in turn amend a small part of the Political Parties, Elections and Referendums Act 2000. The effect of the amendment would be to prevent someone who had been named as a donor to a political party within the preceding five years from becoming a commissioner proposed by any party. Set out in section 3 of the 2000 Act—the section to be amended by clause 5, which we are considering—are clearly stated rules about who can and cannot become a politically appointed  commissioner. It seems logical that, if somebody has been a donor to a political party within the past five years, they should not hold the office of commissioner.

While supporting amendment No. 15, the Electoral Commission suggested that, if donors to political parties were to be prevented in such a way from being nominated for appointment as a commissioner, such practice should include people who have appeared as lenders on the register of loans to parties. That is an omission. I am sorry that I did not include such a provision in the amendment because, if we are considering the principle of donors, lenders also come within that principle. However, that does not alter the principle of my proposal.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

My hon. Friend makes a point, but has she considered this one? When donations are given by trade unions to political parties, that might not be known by the individuals concerned. For example, the other day, the hon. Member for Birmingham, Yardley (John Hemming) said that he had been recognised as a donor, although he had never knowingly been a donor. What would happen if he were made a commissioner under such circumstances?

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I thank my hon. Friend for raising that important issue. He has illustrated for the first time, but not, I suspect, for the last during our consideration of the Bill, what I shall politely call the grey area around trade union donations to political parties, who the people are who give the money, why they do so and what it means. My hon. Friend rightly suggests that we should consider that. When drafting the amendment, it was too complicated to include donations through trade unions, but that is an area we shall consider in greater detail later in our proceedings.

Photo of Tony Lloyd Tony Lloyd Chair, Parliamentary Labour Party

The hon. Lady has had an interesting exchange with the hon. Member for Isle of Wight. From time to time, trade unions make mistakes, as all organisations do, but she is on to something interesting. She describes this as a grey area for trade unions. What about the very dark, black area of the unincorporated association? How should we decide the remit of the principle that she is trying to establish in relation to those shadowy donors who take part in the Midlands Industrial Council and the various golf clubs, which are major donors to the Conservative party? She is on to a good point and I congratulate her on spotting it.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I thank the hon. Gentleman for that intervention. We could get into an artistic argument about shades of grey and black. I do not accept that, on one side of the argument, things are grey and that, on the other, they are murky black. There are areas that are not quite clear on all sides of the argument, which is why we have to clarify the Bill. However, we are considering amendment No. 15 and now is not the correct time to consider shades of black or grey in the area to which he referred.

All I am trying to do with the amendment is tighten up the criteria for political appointments. Conservative Members consider that people who have direct political experience will enhance the Electoral Commission.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. I invite the Committee to stand to observe two minutes’ silence.

The Committee observed a two minute silence.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I merely conclude by saying once again that we would like to tighten up and clarify the Bill with the amendment.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

Again, the principle behind the amendment is well worth supporting. As the hon. Lady said, there may be some defects in the drafting, but I would urge the Minister to take on board her points. The objective of the amendment is to remove from the list of permitted political commissioners those who have given donations to political parties, treating them as they would be treated at present. The principle behind the amendment is a good idea, because one of the main functions of the commission is to regulate donors. Although there are times for making sure that those who are regulated are represented on regulatory bodies, with the particular sensitivities surrounding the area of large donations it would not be a good idea, or add to public confidence in the commission, if the electoral commissioners were to have among their number major donors to political parties.

I have some reservations about the detail of what is proposed in the amendment. The hon. Lady referred to lenders not currently being covered in the amendment. There is also the question about the extent of donation that should, in effect, disqualify someone. Minor donations, although registrable, might not be of an extent or scope that would bring the general principle into play. Nevertheless, the principle is worth considering. A slight difficulty with the amendment is that one of its effects would be to make it more likely that a political commissioner would be an activist or a former employee of a political party, as opposed to a volunteer. In general, volunteers are more likely to be donors than party officials or party professionals. That might be seen to be a move in the wrong direction, because we want to encourage voluntary effort in politics. Nevertheless, it is not a knockdown objection to the amendment. In bringing more political experience to bear in the commission, we are trying precisely to bring in the experience of people who have been more on the inside of politics so that the commission gets the benefit of poachers who are being persuaded to turn gamekeepers. Although that is a disadvantage of the amendment, it is not a knockdown objection to it.

I do not want to join in the previous conversation about trade union donations, but I urge hon. Members who are interested in that topic to consider new clause 11. I hope that the Committee will have enough time to discuss that important proposal in detail.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

The debate has illustrated the complexity of the issue. I want to help the Committee to find a way through it, and the easiest way to do so is simply to resist the amendment.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I am being invited by the hon. Gentleman to elaborate, and I shall be delighted to do so. As we have discovered, the area is complex. It might help the Committee if I set out our understanding of the effect of the amendment. It seeks to alter the section that disapplies the political restrictions for nominated commissioners. The Committee will be aware that the Bill disapplies for nominated commissioners the restrictions that prevent a person from being appointed as an electoral commissioner if he or she is a member of a registered party or has at any time in the past 10 years been an officer, an employee, held an elected office or been named as a donor in the register of donations. The practical effect of the amendment, as the hon. Lady set out, is to prevent any person who has been named as a donor in the register of donations, reported under chapters III or V of part IV of the 2000 Act, from being appointed as a nominated commissioner. That seems illogical. We cannot see a logical reason to leave such a restriction in place for nominated commissioners, while waiving it in respect of the other restrictions. Nominated commissioners, by definition, will be affiliated to a political party, and we can see no reason, as such, why they should be barred from appointment because of any previous donations they have made to their party or, indeed, any other party.

It is worth pointing out to the Committee that, were the amendment to be accepted, it would have the effect of excluding politicians who had made a declarable donation. Given what I think is broad agreement that it is desirable to have electoral commissioners with political experience, I hope that the Committee accepts that we might potentially be knocking out a whole swathe of otherwise highly qualified candidates for that role. Having reflected on the matter, I hope that it will resist the amendment if the hon. Lady presses it to a Division.

In all such matters, it will of course be for the Speaker’s Committee, a body for which each member of the Committee has the utmost respect, to ensure that there are no likely conflicts of interest before a nominated commissioner is appointed. I have every confidence that they will be able to do the job well.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

What the Minister says about the effect of the amendment is correct. It would exclude practising politicians who are also donors. However, it would not exclude all of them. A big field of candidates would still be left. Laying aside the particular wording of the amendment, does he agree that it would not be a good thing for public confidence in the commission were commissioners even to be proposed who were very major donors to political parties? That would look as though the parties were putting forward people who had given lots of money to the party in circumstances that would not be looked on very favourably by the public.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

Of course, I understand the concerns expressed by the hon. Gentleman, but we must be careful how we approach the subject. It is not axiomatically a bad thing for people to make donations to political parties, even very large donations. If people are public spirited and want to give money to a political party of their choice, I do not see anything wrong in that. We all in the House agree on the various considerations—no undue favours sought or undue advancement—and that  a donation should be given purely to a political party that best espouses the values that the donor wants to see embodied in our public life. What is crucial is that the donation should be transparent and that no favour or advancement should be secured as a result. That is the crucial principle.

I am slightly anxious about the underlying assumption of what the hon. Gentleman is saying, because this is an important issue. We should not proceed on the basis that everyone who gives a donation to a political party—whichever political party it is—is automatically doing it out of some malign motive. Many donors do it in advancement of their beliefs, ideals and values—that goes for donors of all political parties.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

I agree with the Minister wholeheartedly about donors to political parties giving money in support of their values, rather than to advance their individual positions. Nevertheless, there is a big difference between a small donation—we all want to encourage a situation in which political parties are funded by a large number of small donations, instead of a small number of large donations—and an extensive, large donation in the context of someone receiving a public appointment, which is what we are discussing. The connection is much closer in such circumstances than it is in general.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

Again, of course I understand the spirit in which the hon. Gentleman has intervened. None of us wants to see the practice of democratic politics tarnished as it has, sadly, all too often been in the past. We can all agree with that, of course. We have to be extremely careful. Underlying his point—I thought he was going to make a slightly different point—is that it is not just a matter of the facts, but the perception of the facts. If he were to make that point, I would happily agree with him on that too.

We have to look at what process is in place. The process will be transparent and subject to the Speaker’s Committee—in which I hope everyone on our Committee has confidence—which will be in a position to evaluate case by case precisely the concerns that the hon. Gentleman has expressed. It would be rash to try to draw blanket prescriptions; we should leave it to the Speaker’s Committee. I am sure that, in making the appointments, the Committee members will read in Hansard what the hon. Gentleman and I have said and take those concerns into account.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

I might have misunderstood the process underlying clause 4, if not clause 5. When people are nominated by party leaders, will all those names be published, or only the names of the successful candidates?

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

Sadly, I am not in a position to enlighten the hon. Gentleman on the precision of the clause. I am not sure that the Act is specific about that. I am looking for guidance, in case there is some arcane detail of which I am not aware—if the hon. Gentleman will bear with me. I would not like to mislead the Committee or the hon. Gentleman, whose legal expertise is considerable.

I am reliably informed that it would be a matter for the Speaker’s Committee to decide whether the names should be made public. I am sure that it would take  account of the views expressed in this Committee in making its decision. What is important is that we have faith in the process, which is already working well. The Speaker’s Committee is there, there is a process in place and everyone accepts that it is working reasonably well at the moment. I would ask the hon. Gentleman to have faith in that process. All of us, and anyone who serves on the Speaker’s Committee, are as concerned as he is with the issues raised. I hope that that gives him some reassurance.

Photo of Andrew Tyrie Andrew Tyrie Conservative, Chichester 11:15, 11 November 2008

The Minister says that he hopes that the Speaker’s Committee will take the trouble to read the Hansard that we are creating now. In that spirit, perhaps he could go a little further. I found the argument of the hon. Member for Cambridge wholly convincing and I think that the Minister did, too, but he is slightly stymied just now. He is not quite sure of all the facts necessary to decide which way he should take policy. Perhaps I am mistaken in that.

Photo of Andrew Tyrie Andrew Tyrie Conservative, Chichester

I am mistaken in that. Does the Minister agree that there is a donation the size of which will lead to the impression of the possibility of undue influence being exercised as a consequence of that donation, and does he think that that should have some bearing on a Speaker’s Committee decision on whether to appoint someone, particularly with reference to, for example, a former trade union leader whose trade union has made very large donations to the Labour party, or with reference to a very large individual donor to the Liberal party or the Conservative party?

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

As always, I have followed with great care what the hon. Gentleman said. May I say that I did not “hope” that the Speaker’s Committee would read the Hansard? I have every confidence that it will read the Hansard and take it into careful consideration as it makes its decisions with all the care and deliberation that it usually brings to these matters. The hon. Gentleman was making a rather logical point until he raised the question of leaders of trade unions. With that, he is getting into very different territory. If he thinks about it for a moment, he will see that the leader of a large trade union whose union had made a large donation corporately to the Labour party was in a very different position from the large individual donor. I hope that he will reflect on that before we set any more red herrings going in that area.

Let me address the substance of the hon. Gentleman’s remarks. He was saying—I am sure that he will correct me if I have mistaken his drift—that hypothetically the donation could be so large that it would give rise among the public to a perception that undue influence was being gained as a result of the size of the donation. The hon. Gentleman is nodding. Logically, of course that could be the case. I cannot speculate, but it would be rash to rule out the possibility of such a perception taking root. Of course it would.

Photo of Andrew Tyrie Andrew Tyrie Conservative, Chichester

So the hon. Member for Cambridge is right.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

With all due respect, that does not follow. I should say, for the benefit of the much-quoted Hansard, that the hon. Gentleman, from a sedentary position, suggested that the hon. Member for Cambridge was right. I suggested that that was not a logical conclusion to draw. The hon. Member for Cambridge said that we should draw a line that would automatically exclude large donors, whatever the size of the donation. I said that it would be rash to make that assumption. What I am saying and what I have said before is that we should approach these issues case by case. I have every confidence that the Speaker’s Committee will be able to make those judgments. At some point, we have to have confidence that it will be as concerned as everyone on this Committee that public perceptions of that type should not take root. We know that in this area there is a problem with public perceptions of the probity of our political life. The Bill is designed to address many of those concerns, and the Government will do everything that we can to address all the concerns. We have to have confidence that the Speaker’s Committee shares the concerns and will address them.

Mr. Turnerrose—

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I was about to finish, but I am always delighted to give way to the hon. Gentleman.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I am grateful. Is the Minister allowing for Mr. X to give a gift of £50,000 and find himself operating this new position in relation to the Electoral Commission and for Mr. Y to give £50,000 and not be so occupied? The same amount of money is being given and there is nothing else in public that distinguishes them.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

Of course there will be all sorts of specific circumstances, and I do not want to speculate on what they might be. The tax status of a large donor might be brought into play, for example. That is a matter for the Speaker’s Committee. At some point, we have to decide as a Committee whether we want to draw a line—as suggested by the hon. Member for Cambridge—and say, “Above this level of donation, such donors should not be included in the criteria for eligibility as an electoral commissioner.” I am anxious about the exclusion of donors, as a matter of principle. They may well be people of considerable political experience. I am sure that we can all think of examples of large-scale donors who play active roles in the management of their political parties, and who regard themselves as people of great political judgment and experience.

The Speaker’s Committee needs to look at such matters and make a judgment about whether public perception, among other things, would be such as to tarnish that appointment. I am suggesting that matters should be handled on a case-by-case basis. All the evidence suggests that the Speaker’s Committee commands the respect of the House and the wider public, and that it proceeds with due impartiality and without bias. I am not aware of an allegation of partiality or bias on the part of the Speaker’s Committee, and it is a working assumption that it will proceed on that basis. To draw hard and fast rules would be unfair to the majority of donors who  contribute donations to all political parties out of public spirit. We should want to encourage them to continue doing so.

Mr. Tyrierose—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. I request that interventions are brief and very much to the point.

Photo of Andrew Tyrie Andrew Tyrie Conservative, Chichester

I always do my best. The Minister said that he thinks that the Speaker’s Committee commands the respect of the public. The trouble is that the public have no idea about such Committees. They are completely opaque bodies that make decisions anonymously. It is not that they command disrespect, but they do not command public respect. Does the right hon. Gentleman agree?

Does the right hon. Gentleman find it curious that he is opposed to the idea of drawing a line or imposing a cap on the donation that might lead eventually to the ineligibility of someone from one of the appointments, when all three major parties support, in principle, a donations cap in order to restore public confidence more generally in the issue of donations to political parties?

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

As always, I am grateful to the hon. Gentleman for his succinct contribution to the debate. Of course, most members of the public are not intimately familiar with the workings of the Speaker’s Committee, but we can assume that our democracy is sufficiently transparent that, if there were significant concerns, they would have percolated into the wider sphere. However, we are not very far apart on that point.

There are areas in the Bill and in other such issues where we accept that there should be donation caps. That is a matter of fact, but we are talking about the selection of electoral commissioners who will be expected to bring their experience—not their partisanship—to the exercise. They will be judged, as I said earlier, not by how they are selected, but by how they behave when they are selected. That is the key. If they behave in a partisan way, and the selection process is seen to be flawed as a result, the Government will, of course, consider the matter again.

It behoves us all to keep a careful eye on how all legislation, particularly in this area that is so important to our democracy, works. If it turns out to be flawed, it needs to be changed but, at the moment, we have no evidence that it will turn out so. A lot of evidence suggests that it will work perfectly well and achieve all the goals that the hon. Member for Cambridge and the Committee want to accomplish. I see no member of the Committee rising to speak, so I invite the hon. Member for Epping Forest to withdraw the amendment.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I am glad that we have debated the amendment because it has brought out some important issues. I share the Minister’s confidence that the Speaker’s Committee will take note of our deliberations this  morning. Nobody wants to have to say in a few years’ time, “We told you so.” In a few years’ time, rules may be reversed if matters go wrong. We hope that they do not. I have every confidence in the Speaker’s Committee. We have aired points of concern, and it is important that they should go on the record.

I agreed 100 per cent. with the Minister when he said that people who donate to political parties are acting honourably. They are contributing to democracy in the same way that people who donate to charities are contributing to good causes. The workings of democracy in our country are a good cause. Giving money to political parties is an honourable and respectable thing to do, and should be encouraged. Some of my best friends give donations to political parties. We should be encouraging such donations and not allowing certain elements of the media to denigrate those who donate. My point has been made. This was an interesting probing amendment and, with the leave of the Committee, I beg to ask leave to withdraw it.

Amendment, by leave, withdrawn.

Pete Wishart (Perth and North Perthshire) (SNP): I beg to move amendment No. 112, in page 3, line 39, leave out ‘Four’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following amendments: No. 113, in page 3, line 40, leave out from ‘(1)’ to ‘the’.

No. 114, in page 3, line 41, after ‘party’, insert

‘shall’, and after ‘forward’, insert ‘a person’.

No. 115, in page 4, line 6, leave out ‘three of the’.

No. 116, in page 4, line 7, leave out ‘three largest’ and insert ‘qualifying’.

No. 117, in page 4, line 22, leave out subsection (7).

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

It is a pleasure, Sir Nicholas, to serve under your chairmanship in this august Committee, and I look forward to the rest of the sittings that we will share together. The amendments are pretty straightforward and self-explanatory. I seek proper recognition from the Bill and the Electoral Commission that we are now in a multi-legislature, multi-party democracy throughout the United Kingdom. The amendment is about more than just this Parliament. We now have four legislatures in the United Kingdom and five parties in power. We have the majority Government in the House of Commons, the minority Scottish Nationalist party Government in Scotland, and coalitions in Wales and Northern Ireland. All of them have to be served by the Electoral Commission and all of them have to be properly recognised by this Bill. However, the Bill does not do that. It is Westminster-centric as usual and that has been recognised by the written submissions from electoral commissioners among others. If the Bill was just about this House, it would be absolutely fine. We have seven Members out of a total of 659. All the minority parties put together number some 28 Members of this House. To get one commissioner out of that number is very fair and generous; it is a very good deal. However, we are not in that situation.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

The hon. Gentleman is probably right. I apologise for my ignorance. Numbers have never been my strong point, as hon. Members will probably recognise in the course of these proceedings. Nevertheless, the point is still the same. We would be very fortunate to get one commissioner for this one House of Commons, but this is about more than that. It is about all the legislatures throughout the United Kingdom, in which case, it is totally unsatisfactory.

Let us look at the situation in Scotland. The Electoral Commission has a responsibility for Scotland. In Scotland, the SNP is not a minority party. We are the largest party in Scotland by votes and by seats, and we are the Government in Scotland. To have the Government in Scotland effectively excluded from electoral regulations for Scottish elections is absurd and bizarre and clearly not fair. How can that be right? It would be like saying to this House, “We can have an Electoral Commission and a proper regulation of elections, but let us exclude the Labour party.” That would be totally unacceptable, just as it is for the Scottish National party to be excluded from electoral regulation for the Scottish Parliament.

Let us look at what is happening in Scotland just now. Over the past few months, there has been a polarisation of support between the Labour party and the Scottish National party. Those are the two largest parties in Scotland. Two smaller parties make a significant political representation to the Scottish Parliament—the Liberals and the Conservatives. The Liberals lost their deposit in the last two by-elections and secured less than 3 per cent. of the vote. The Conservatives held on to one of their deposits by the skin of their teeth. They are no longer becoming small parties in Scotland, they are becoming fringe parties. However, those two fringe parties will have a seat on the Electoral Commission and will make regulations concerning elections to the Scottish Parliament, when the party of government will not. How can that be fair and right? That point must be addressed, and I am looking forward to the Minister’s response on how it will be achieved.

How will the fourth commissioner be decided? All registered parties in this House with two or more Members are seemingly to nominate two representatives each. They will go to the Speaker’s Committee, which will decide. The hon. Member for Chichester asked whether the public know who is on the Speaker’s Committee. As a Member of Parliament, I have no idea who is on it. I know who the Speaker is and that he will look after Back-Bench Members of political parties in the House, but I have no idea who is on the Committee other than Mr. Speaker himself. I presume that there will not be a minority party Member on the Speaker’s Committee—I would put any amount of money on it—so what will it know about those parties when it makes a decision?

I suggest that the Speaker’s Committee will look at the largest minority party and decide to give it the job. The largest minority party in the House is the Democratic Unionist party, which has nine Members. Second largest is the Scottish National party with seven Members, the Social Democratic and Labour party has three and Plaid Cymru has three. If the Speaker’s Committee decides to give the job to the largest minority party, we would have the ridiculous situation of the Democratic Unionist party in the Electoral Commission looking after the interests of the Scottish National party.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight 11:30, 11 November 2008

I do not remember exactly what was said, but why would it be wrong for the Democratic Unionists to look after Scottish National party affairs, but right for the Scottish Nationalists to look after Democratic Unionist party affairs?

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

I am grateful to the hon. Gentleman for that intervention. I will explain clearly why there is a difficulty for the Scottish National party. No other party in the House of Commons would be less appropriate to look after the Scottish National party than the DUP. We are a party of independence. We are a nationalist party. We want our nation to become a normal, independent nation like any other in the world. The Democratic Unionist party is probably the most Unionist party in the House, yet it would sit on the Electoral Commission looking after the interests of the most nationalist party.

Several hon. Membersrose

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I thank the hon. Gentleman for giving way. Can he clarify whether he believes that the democratic process itself, which is what the Electoral Commission and its commissioners is there to protect and enhance, is different for a nationalist party, a right-wing party, a left-wing party or a middle-of-the road, sitting-on-the-fence party? The democratic process is the democratic process. It really does not matter which part of the political spectrum someone belongs to. What matters is that democracy works and it is therefore totally irrelevant for these purposes which political party a person belongs to.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

Here is my challenge to the hon. Lady. How about the Conservative party giving up its place on the Electoral Commission and giving it to the Labour party. Would she be happy with that? I suggest not, yet she expects the Scottish National party to have no representation on the commission and to be looked after by a political party that operates contrary to its political interests. Would the hon. Lady give up her seat to the Labour party?

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I am certainly not saying that we would wish to do such a thing in the way that the hon. Gentleman suggests. However, if four very senior and well respected people were nominated as commissioners, and if none were a member of the Conservative party, the commission would not work any the worse. We are looking for political commissioners with experience of the democratic and electoral process, not particular party views. Political experience matters far more. I hold some people in the Labour party, the Liberal Democrats and even the Scottish National party in greater respect than I do some people in the Conservative party.

Hon. Members:

Names.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

I, too, would be very interested to hear names.

I am grateful for the hon. Lady’s intervention—or should I say speech?—and I noted that her colleagues looked with wry interest when she said that she would be prepared to give up the Conservative nomination to the Electoral Commission to somebody from another  party. In light of that kind suggestion, we could suggest somebody from the Scottish National party to fill her party’s nomination.

I am glad, however, that the hon. Lady has opened up this debate. If the four commissioners are to be truly non-political and non-partisan, I would be happy, but given some of the noes that I am hearing from Conservative colleagues, that might not be the case. I suggest that nominations for the party political commissioners will be truly and wholly party political.

My amendments would deal with that matter fairly and squarely by ensuring that any registered political party with more than two Members in this House would have a political commissioner on the commission. In one blow, that would deal with all the outstanding issues. Every significant party in all United Kingdom legislatures would be represented on the commission. The Scottish National party, the SDLP and the Democratic Unionist party would, therefore, have a say on the commission about electoral regulation within their own legislatures and Parliaments. Surely that is fair and transparent.

The Minister will tell me that that would mean a majority of political commissioners on the Electoral Commission, which I accept. However, I would prefer that to excluding certain parties. If that solution is not accepted by the Committee, I would suggest that we have no political commissioners at all, which again would be preferable to excluding some parties, which would mean that some legislatures are demoted and would lose an interest in the commission.

Two options are on the table: to ensure that all political parties with a significant political presence in all United Kingdom legislatures are properly represented on the Electoral Commission or none at all. The suggestion in the Bill is the worst of all worlds. Regardless of what the hon. Lady might say about the nomination process, the three big parties have their nominated appointee on the commission, and one will remain for all the minority parties. I have no idea how that will be decided. It will be left to the Speaker’s Committee, but I do not even know who is on that Committee and I have no idea how it will decide who that fourth commissioner will go to. I suspect that it will automatically select the largest minority party—the DUP—which would be unacceptable to the SNP, just as an SNP commissioner would presumably be unacceptable to the DUP.

No process is in place for sorting that out. It is a total mess. I ask the Minister to consider sincerely my genuine plea to resolve this problem. I want him to recognise that we are in a multi-legislature United Kingdom. How will he address this problem? Is it acceptable that the Governments of Scotland, Northern Ireland, and perhaps a coalition in Wales, do not have a place at the top table of the Electoral Commission? I look forward to the Minister’s remarks.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I am pleased that the hon. Gentleman has tabled the amendments because it allows us to discuss this important issue. There are three reasons why we on the Conservative Benches oppose his amendments. First, it is totally impractical to have the number of commissioners that would be required if his  amendment became part of the Bill. An important principle about the commissioners with political experience is that they should be in a minority on the Commission.

In an interesting evidence session we had last week, Sir Hayden Phillips responded to the hon. Gentleman by describing the characteristics of a successful regulator. He also said:

“I think that this will help the Electoral Commission, and will help political parties to feel more comfortable with the Electoral Commission. Those four people will be in a minority, and will never be a majority.”——[Official Report, Political Parties and Elections Public Bill Committee, 4 November 2008; c. 34, Q83.]

The Committee accepted that it is an important principle that the four politically appointed commissioners are in a minority on the Commission. If that number is changed to accommodate all parties with some representation in the House, as the hon. Gentleman suggests, the number of political commissioners would rise to perhaps eight or, sometimes, nine. If there were to be a minority on the Commission, there would have to be 20 or more commissioners, which we all know would not work. A committee that is too large becomes unwieldy and cannot do the work that it sets out to do. Therefore, on practical grounds, the number four is right and we support the Government on that point. It is simply impractical to say that that number should be increased.

The hon. Gentleman forgets two important points. The first is that commissioners with direct political experience are to be appointed in order to bring their wisdom and experience of democracy, elections and the political process to the Commission. The commissioners are not there to represent the views of particular political parties and it is therefore quite wrong to say that, in being appointed, their political allegiance would be their most important characteristic. I challenge the vocabulary used by the hon. Gentleman when he says that a certain person might be appointed who would be

“looking after the interests of the Scottish National party”.

A commissioner should not be there to look after the interests of a particular party or group; the role of the commissioner is to oversee the democratic process itself. The idea behind having four commissioners from different areas of the political spectrum is simply to balance that out and it is quite right to do so. To suggest that a particular person, who would have been appointed for his or her seniority, wisdom or experience, would represent the interests of any political party is quite wrong.

There should, of course, be someone who has experience of government, someone who has experience of opposition and someone who has had experience of neither for over a century. There should also be someone who has experience of a minority party. The experience of a minority party is as a minority party, rather than of a particular party with a particular political ethos or principle. That is really important, so I vehemently oppose what the hon. Gentleman is proposing in the amendments.

Finally, and almost more important than anything else, the hon. Gentleman forgets that the devolved legislatures in the United Kingdom derive their power and authority from Parliament—the Westminster Parliament. Therefore, his argument that the provisions are Westminster-centric is wrong and not at all well founded. The fact that the devolved legislatures derive their power from Parliament means that it is Parliament that should make decisions such as today’s. It is absolutely  correct for this Parliament and this Committee, representing Parliament, to decide on four, well balanced electoral commissioners with political experience.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs 11:45, 11 November 2008

The hon. Member for Perth and North Perthshire has brought up a serious difficulty in the Bill. We need to take it seriously and think what the solutions might be. His solution is not the right one, and his list of possible solutions is not exhaustive, but the problem is a real one. This country now has multiple legislatures. Parliament is still sovereign and supreme, but in reality we are seeing the development of different political systems in Scotland and Wales, and there has always—for a long time—been a different political system in Northern Ireland. We need to take into account those developments in deciding what to do about electoral law. Not only is the party system in Scotland different, but the electoral systems are different as well, not just for the Scottish Parliament, but also for Scottish local government—the same system as is generally used in Northern Ireland, but not in England, although it should be.

The problem with what the hon. Gentleman put forward as his solution to this new situation is that it is too United Kingdom-centric. He is trying to solve the problem within the scope of United Kingdom institutions. I do not think that that can be done, at least in the way that he has proposed. The hon. Member for Epping Forest is quite right that what the hon. Gentleman is putting forward is a system—he pointed this out himself, in his speech—that would lead to a majority of political commissioners. For all the reasons that the hon. Lady and the Electoral Commission itself mentioned, that is an unacceptable solution.

If we look at the detail of what the hon. Gentleman put forward, he is removing the choice of commissioners from any other body—the parties would directly nominate one person, and that person would then become a commissioner. The hon. Lady is right that that is not the view of a commissioner that the Bill proposes. The Bill’s view is of the commissioner as a person who, to use the European jargon, knows a particular political party best but nevertheless acts as a commissioner in the interests of the commission as a whole, and who is not there as a representative of a particular party. The hon. Gentleman’s amendments would change that and make the commissioners the representatives of parties.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

May I ask the hon. Gentleman the same question that I put to the hon. Member for Epping Forest? If the political nominations to the commission are apolitical, would the hon. Gentleman be happy for the Liberals to waive their right to nominate a political commissioner and give it to another party in the House?

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

I do not think that it is a matter of being political or apolitical—by definition, they are political commissioners—but they are not there to act as delegates of the party or at the party’s insistence. They are there in a similar way to European Commissioners, who are selected on the basis that they know a particularly country best and that their experience reflects where they come from. They are not there to vote for the interests of a particular party or country.

The question that arises is what to do about the problem, given that the solution that has been put forward is not acceptable. The solution of not having political commissioners would not be acceptable either, because at the heart of the clause is the importance of having a good dose of practical political experience on the commission and ensuring that it does not act in an ivory-tower way. That seems to exhaust the hon. Gentleman’s suggestions—either his solution or no political commissioners, and that is it. I do not think that that is it. He has raised an issue of greater importance: the degree to which we devolve electoral law.

Party funding is a UK-level question, because as we heard in an evidence session, parties are constantly campaigning and raising money for a range of different elections, from local elections to devolved Parliament elections, UK elections and European elections. It is not really possible to separate the money being raised for those different campaigns and elections, because the same money is raised for the entire range of elections. The regulation of donations and party funding is therefore a UK-level matter, but that is not the case with electoral administration. It is different in the different parts of the UK, precisely because the electoral systems are so different. We should seriously consider further devolution in that area.

There is already devolution on boundaries. There is a separate Boundary Commission for the Scottish Parliament and for local government in Scotland. Although it would be complicated and difficult to introduce into this part of the Bill properly devolved institutions for electoral administration, that is where the solution to the problem lies.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

Is it not the case that the Electoral Commission conducted a thorough and well respected inquiry into the conduct of the last Scottish parliamentary elections and that, as it is presently constituted, it was perfectly competent in doing so and produced an excellent report?

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

I would not demur from the hon. Lady’s view of the report’s content, but I am talking about how to solve the institutional political problem that the hon. Gentleman has rightly brought to our attention. We have to solve it at the level of institutions, not by altering the detail of the Electoral Commission appointments provisions in the Bill.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

We have had a fascinating debate, and I am grateful to the hon. Member for Perth and North Perthshire for raising the matter. I shall start by saying straight away that of course I recognise that we are in a multi-party, multi-legislature UK. This Government brought in devolution, and we are extremely proud of it. It has made for a much more vibrant and healthy democracy within the context of a United Kingdom. I am sure that he finds that final phrase unpalatable, but there it is. We are proud of devolution, and he is absolutely right that his party plays an important part in the new, vibrant democracy. I thank him for recognising that only the Labour party can now speak for the whole UK. That is generous of him, and we acknowledge it.

May I throw some light on something that has baffled many members of the Committee, including the hon. Member for Chichester, and let the entire Committee know what the Speaker’s Committee consists of? It  consists, with one exception, of hon. Members. They are the hon. Members for Gosport (Sir Peter Viggers) and for North Down (Lady Hermon), my right hon. Friend the Secretary of State for Justice and Lord Chancellor, my right hon. Friend the Minister for Local Government—he is there ex officio, as I believe is the Lord Chancellor—the hon. Member for Woking (Mr. Malins), the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), my right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman) and the hon. Member for South-West Devon (Mr. Streeter). I am sure that the Committee would agree that that is a most distinguished gathering of parliamentarians, who can be trusted to do their job with great distinction and impartiality.

We have had an interesting debate. I have to say, I agree with almost every single word that the hon. Member for Epping Forest said. At the heart of this issue lies an important debate about the future of the United Kingdom, although I am sure you will forbid me from straying too far into that territory, Sir Nicholas. I am sure that there will be many occasions on which we shall return to that subject, but we shall not discuss it at length today.

I want to stress a couple of things before I address the detail of the amendment. First, as the hon. Member for Epping Forest said quite clearly, at the heart of the proposition made by the hon. Member for Perth and North Perthshire is the idea that somehow the so-called political commissioners—we prefer the term nominated commissioners—will act as partisans on behalf of their party.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

It is the same question that I have put to all the political parties here: if the Minister is satisfied that that is the case, will the Labour party therefore waive its right to have a political commissioner, and perhaps open it up to other parties in the House?

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

The hon. Gentleman is an eloquent and skilled debater. I had anticipated him asking me that question, and I shall answer it in a moment if he will bear with me. It is a good question, but there is a good answer too. The short answer is no, however I will provide a more detailed explanation in just a moment, if I may.

The point that I was making is that underlying the hon. Gentleman’s amendment is the proposition that nominated commissioners will act in a politically partisan way, and therefore it is unfair that they should be excluded. That is absolutely not the case. I see him shaking his head.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

That seems to be the underlying assumption, and that therefore it is fair that the hon. Gentleman’s party and other parties that are in a minority at Westminster should have due representation on the commission. However, as the hon. Member for Epping Forest said extremely clearly, nominated commissioners should be selected on the basis of their experience. That is the basis on which they will be selected and on which we expect them to discharge their duties—not in a politically partisan way.

On the point about why the parties that have the largest representation at Westminster should have the position that they have in the Bill, the answer follows on from the point that I just made. That is precisely why we would not be prepared to relinquish our particular position to other parties. The three largest parties at Westminster have—I hope that the hon. Gentleman will agree, because it is a matter of fact not opinion—the widest pool of political experience throughout the United Kingdom on which to draw, including experience of all the different electoral systems, as the hon. Member for Cambridge said.

The answer is not what the hon. Member for Perth and North Perthshire is suggesting, which is to segment and fracture the overall view, so that there are specialists in this particular area and this particular electoral system. I may be caricaturing what he was trying to suggest, but that would be the logical consequence of his contribution to the debate. What is important is that we have a wide pool of experience upon which to draw. The three largest parties at Westminster pre-eminently have that wide experience of all the regions of the United Kingdom and all the different electoral systems. They can bring that collective experience to bear on all the issues that the Electoral Commission has to address.

There is a fundamental difference of view on this issue. It is not that the provision is Westminster-centric and the wrong perspective to adopt; it is the only proper position to adopt in a United Kingdom. The hon. Member for Epping Forest set this out well: the source and foundation of power and authority in this country remains in the Westminster Parliament, because that is the Parliament for the entire United Kingdom. Of course, the devolved Administrations and legislatures have an important part to play. They have brought great vibrancy to our democracy and we are proud of what we have done to make that happen, but the power is still devolved from Westminster and so the Bill is in the form that it is.

There has been little discussion of the detail of the amendment, so I want to address that. The hon. Member for Perth and North Perthshire will not be surprised by what I am about to say, but, if he will forgive me, I will say it anyway for the record.

Amendments Nos. 112 and 113 would remove the requirement to have a maximum of four political commissioners and, in our view, thwart the purpose of the clause, which is to enhance the credibility and effectiveness of the commission, both to those it regulates and to the general public.

Although clause 6 places the minimum and maximum number of commissioners at five and 10 respectively, by not limiting the number of nominated commissioners permitted it could, in theory, lead to those nominated commissioners being in a majority on the board. I think that all members of the Committee would agree that that would seriously undermine the independence of the commission—both its actual and its perceived independence.

Limiting the number of nominated commissioners to four means that they will always be in the minority, although they will still be able to bring to the commission the political experience it needs—the events of the last few years show that that experience is needed—to create greater confidence among those it regulates.

Amendment No. 114 would compel parties to make nominations to the Speaker’s Committee. Under the Bill as drafted, parties will be free to make nominations to the Speaker’s Committee if they choose to do so. The amendment would mean qualifying parties being obliged to put forward to the commission a person to be considered for appointment. We think that that is unreasonable and therefore cannot support it.

Amendments Nos. 115, 116 and 117 would remove the need for three of the commissioners to be from the largest parties in the United Kingdom Parliament and the means for calculating parties’ relative size for that purpose. As I have said, we believe that it is the right balance to have commissioners from those parties in order to command the widest range of political experience. That is a difficult judgment. We must make a judgment about how to do it, and this is the judgment that we have made, for the reasons that we have said. I accept that the hon. Gentleman has a perfectly logical position, from his perspective, in suggesting alternative arrangements; it is just that we do not agree with them.

We believe that, to get that pool of political experience, it is right that three of the commissioners should come from the three largest parties and that the fourth commissioner should come from another qualified party. The recruitment and selection process for all commissioners will remain a matter for the Speaker’s Committee. Again, I am sure that it will look at the contributions made to the debate on these amendments and take into account what the hon. Gentleman has said, and indeed what the hon. Member for Cambridge has said.

These are important questions and they will be a subject for legitimate debate in the future. Constitutional arrangements are never set in stone. They evolve and develop, and this process is part of their evolution and development. I am sure that we will continue to return to these issues. In the meantime, however, I hope that the hon. Member for Perth and North Perthshire will agree, in the light of all the circumstances, to withdraw the amendment.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice) 12:00, 11 November 2008

I appreciate all Members taking part in what has been an interesting and illuminating debate on the issues involved in how we start to deal with the multiplicity of legislatures that we have throughout the United Kingdom. I also appreciate the Minister’s attempt to look at those issues a little more clearly and perhaps to come back with solutions. I am also grateful to the hon. Member for Cambridge, who has again spoken about the need perhaps to devolve further the powers of the Electoral Commission, which is a realistic way forward that we might address in the future.

However, the suggestion that nominations for political commissioners will somehow exist almost in a vacuum—without the parties that nominate those people—is preposterous and ridiculous. That is why, other than the hon. Member for Epping Forest, who, much to the chagrin of her colleagues, has been the only member of the Committee to say that we need to be prepared to put the political nomination aside—

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I really must clarify this point, or I might not remain on the Committee much longer. [Laughter.] I will probably be forcibly removed. I did not say that the Conservative party ought not to put forward someone  or that the place ought to be given up. I was merely illustrating, for the purposes of our argument, the fact that a person’s wisdom and experience do not depend on his or her party allegiance.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

I am grateful to the hon. Lady for clarifying that. She sought to say that she would be happy to waive the right to a Conservative nomination, but she now brings that into line with the thoughts of everybody else in Committee, which I suspected anyway. I always presumed that no political party would be prepared to give up its right to nominate political commissioners, which confirms my strong suspicions that party political interests are at play here. To pretend otherwise is like living in cloud cuckoo land. Of course party political interests are at play, otherwise there would not be party political commissioners.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I am slightly surprised by the hon. Gentleman’s cynicism. Given the passionate idealism that he normally brings to the exposition of his cause, this really is a very cynical view. If he reflects on a wide range of analogous bodies in our public life, on which people with wide political experience serve, he will see that those politicians from all political parties serve the party interest without party bias, and have done so for many years and will continue to do so. I hope that he withdraws his remarks.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

Call me an old cynic, Sir Nicholas. I accept what the Minister says. I know that people who are nominated from political parties do a fantastic job in a number of bodies throughout the United Kingdom, but it is naïve to suggest that there is not a small element of party political interest—there must be. No political party would be prepared to give up its right to nominate a political commissioner. We still do not have a solution for what we do with minority parties. We still have not addressed how the Electoral Commission will turn its attention to dealing with the devolved Assemblies and Parliaments across the United Kingdom.

Amendment No. 111 would clarify and support what the Minister says. It proposes to limit the rights of political commissioners to become involved in some of the work of the Commission.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. We will consider amendment No. 111 at a later stage, so it is not appropriate to raise the matter now.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I hesitate to return to this point, but it is so fundamentally important. The hon. Gentleman is proceeding on a completely wrong assumption. The Electoral Commission regulates the electoral system itself. It is in the interests of every single democratic political party in this country that the integrity of that electoral system is paramount. That is the self-interest of every nominated commissioner on the board, nothing else. It does not matter what values we espouse, what policies we want to put into effect or whether we are in Scotland or in the United Kingdom Parliament, the integrity of the electoral system is of fundamental importance to every single one of us. Every single one of us shares the same self-interest in the transparency,  incorruptibility and integrity of that system. I hope the hon. Gentleman will shift the base of his argument away from how he has been proceeding until now.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

I am grateful to the Minister for his intervention and I agree with practically every word he says, but may I say to him, in all candidness, that there will be a whiff of suspicion about the work of the Electoral Commission when it comes to the Scottish elections? On the Electoral Commission, there will be nominated political commissioners from the Conservative, Liberal and Labour parties for the regulation of electoral law in elections to the Scottish Parliament, but there will be no representative from the largest political party in Scotland, which forms the Scottish Government.

The Minister may go on and on about the fine group of people who have our best interests at heart, but, for ever and a day, there will be a whiff of suspicion that something is not quite right. All the other political parties will get to nominate a political commissioner, but the party of government in Scotland will not. That cannot be right. I cannot accept that that is the way forward for Scotland.

We are coming to amendment No. 111, which will, I hope, clarify the role of political commissioners. That is the opportunity for people to say what the political commissioners can do. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs. Laing: I beg to move amendment No. 105, in clause 5, page 4, line 8, at end insert

‘and the registered heads of the three largest nominating parties at that time shall be required to make such a nomination.’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss amendment No. 108, in clause 5, page 4, line 15, at end insert—

‘(4A) If a nominating party as mentioned in subsection (3) fails to put forward two persons to be considered for appointment as a nominated commissioner when requested to do so, the next largest party at the time shall be treated for the purpose of the particular appointment, and for the purposes of this subsection, as one of the three largest nominating parties.’.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

When evidence was being given to the Committee last week, it became clear that a situation could arise in which a political party might fail to nominate possible commissioners. The amendment would require the leader of a political party to make that nomination, as the Bill suggests, although does not require, that they do.

In amendment No. 108, the hon. Member for Cambridge has spotted the same problem and has come up with a good and different solution. If, for some reason, a political party failed or decided not to nominate a commissioner, that could create a vacuum. The Bill will not work efficiently if political parties do not co-operate.

Although it is reasonable for the Government to assume that political parties and their leaders will co-operate, that assumption cannot be relied on. Suppose those party leaders, or the minority parties, decided not to  co-operate for some reason. What if the hon. Member for Perth and North Perthshire stirred up the minority parties to take a stance and not to nominate? That is possible—it would be a reasonable way to make a political point. The Bill will work less efficiently if those nominations are not made, and therefore they should be required by the Bill. That is the purpose of the amendment.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

As the hon. Lady says, the issue first came to the attention of the Committee last Thursday when it was raised by the Electoral Commission. I suspect that our efforts to meet that point might not yet be technically perfect, but since the Programming Sub-Committee gave us only a few hours in which to write the amendments, this is the best we could come up with.

The essential issue is precisely that mentioned by the hon. Lady. The Electoral Commission asked what would happen if a political party refused to make the nominations to which it is entitled under the Bill. There could be a range of answers. One solution could be for the party to lose its commissioner, who would not be replaced by anyone else. Another solution might be that another party, which stood above the party in question in terms of the number of seats, would get to nominate an extra commissioner, but that would raise questions about which party would be so entitled.

I have made a simple suggestion to the Government about how the situation might be dealt with. It does not deal with every possibility, just some of them. The amendment would mean that should one of the main three parties refuse to nominate any commissioners, its right to nominate would go to the next largest party. As the hon. Member for Perth and North Perthshire noted, that would currently be the DUP, but under other circumstances it could be a different party. We must come to a solution on the issue—perhaps not at this stage of the proceedings, but later. The Government must respond to what the Electoral Commission has said.

Speaking to amendment No. 105, the hon. Member for Epping Forest implied that amendment No. 108 is an alternative to her suggestion. In fact, they are complementary. My amendment would not do something that is important in the first place, which is write into the Bill an obligation on the main parties to make nominations. That is a defect in my amendment, but the defect in her amendment is that she does not say what would happen if those parties failed to fulfil the obligation that she is rightly seeking to create. My suggestion is that the Government take away both amendments, consider their joint effect and, if they do not like the drafting—we had only a few hours to draft them—return on Report with something that deals with the problem.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 12:15, 11 November 2008

These are interesting amendments that would deal with circumstances that are unlikely to occur. However, we should take the opportunity to clarify some of the issues, and I am happy to do so.

Under amendment No. 105, as the hon. Member for Epping Forest said, the heads of the three largest qualifying parties would be required to nominate two or more persons for appointment as a commissioner. The clause as drafted will not impose a requirement, because that  would be over-prescriptive. The hon. Lady suggested that the hon. Member for Perth and North Perthshire might at some point want to make a political point by not nominating, which is absolutely the case, but it would be wrong of the Government to stop political parties making political points. That is a matter for other political parties.

In the generous democratic spirit in which we generally operate, we would not want to close off that option for other parties, so we believe that it is best to leave the clause as it is. I hope that, on reflection, the hon. Lady will be tempted to withdraw the amendment.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I thank the Minister for that perfectly reasonable explanation. Just for clarity, how many nominations does he imagine or predict that there will be? Is it likely that there will be eight nominations, and therefore four people could be chosen from them, or if one party did not nominate, would there be six and four could be chosen from the six? I am sorry: this sounds a bit muddled because I am, to an extent.

I am genuinely asking for clarification of the practicality of the process, because I might agree with the Minister.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I hope that the position will become clearer when I address amendment No. 108, which has been tabled by the hon. Member for Cambridge. If it does not, I shall be happy to give way to allow the hon. Lady to put her question to me again.

As the hon. Member for Cambridge pointed out, amendment No. 108 would amend proposed new section 3A(4) to provide that if one of the three largest parties did not exercise its option to nominate, the next largest party at the time would be entitled to have one of its nominees appointed as a commissioner, so long as it had made at least two nominations.

The effect of clause 5 is clear. If one of the three largest parties in Parliament, calculated by reference to proposed new section 3A(7), does not nominate two candidates for appointment as a nominated commissioner, it will not be one of the three largest “nominating parties” and therefore will not be entitled to have a person whom its registered leader has put forward appointed to the commission. In those circumstances, the registered leader of the fourth largest party in Parliament will be entitled to have one of their nominees appointed, so long as they have nominated two candidates for appointment. Therefore, the amendment would just restate what is already the effect of clause 5.

The hon. Lady asked about the number of nominations. There will be two nominations per qualifying party so that if one party, by its own choice, ceases to be a qualifying party, there will in effect be six nominations for three places with at least one from smaller parties, if they choose to nominate.

I stress that we are dealing with what are likely to be extremely hypothetical circumstances. There is general support for the principle that there should be nominated commissioners who bring political experience to the Electoral Commission—that is a direct read-across from the recommendation of the Committee on Standards in Public Life. The hon. Lady has demonstrated her support for the principle, and we would expect her party to nominate. We would expect all parties to contribute to what is a fundamental pillar of our democratic system.  Unless someone wanted to make a political point, which would be regrettable in the circumstances, we would expect there to be sufficient nominations for the process to continue.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

I thank the Minister for his explanation, which is a possible description of how the Bill currently reads. His explanation works by treating a nominating party as a party that has gone through the process of nominating. It is slightly circular, but it is certainly a possibility. The problem is that even the Electoral Commission does not understand the Bill to mean that. Surely, at the very least, the Government should be thinking about tabling a clarifying amendment on Report.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

In the spirit of earnest intellectual co-operation, I draw the hon. Gentleman’s attention to clause 5(4), which states:

“In subsection (3) ‘nominating party’ means a party whose registered leader—

(a) has put forward two or more persons to be considered for appointment as a nominated Commissioner, or...previously put forward”.

I would be grateful if he explained the confusion and said why matters are not clear to him, although I know that none of us can answer for the Electoral Commission’s confusion on this matter, or indeed any other.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

That is a possible interpretation, but the problem is that we will be able to tell whether a party is a nominating party only when it has actually done it. That is a confusing way to draft anything.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

With all respect for the hon. Gentleman’s point, he says that I have given a possible interpretation. Will he help me to understand his point by giving me another possible explanation of the clause? I will be happy to deal with his concerns if I can understand them a bit better.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

I do not want to be too technical, but let us suppose that a party previously nominated two names for commissioner in the first round of nominations. The person nominated by the party then resigns, dies or retires, at which time the party refuses to nominate a second time around. However, it then qualifies as a nominating party because it put forward two or more persons for consideration on the previous occasion. Thought has to be given ahead to the next round of appointments to see where the confusion might be.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I am still confused. I draw the hon. Gentleman’s attention to clause 5(4)(b), which includes the words

“previously put forward persons one of whom was appointed as a nominated Commissioner”.

At that point, we are in the same hypothetical example as he has just given. The provision continues with the words

“and is expected to continue to hold office.”

With all respect to him, someone who is dead cannot reasonably be expected to continue to hold office.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

The problem with that interpretation is that the linking word between subsections (4)(a) and (4)(b) is “or”, not “and”. If it were “and”, the Minister would be right, but he is not right. We are reaching the point at which I might ask permission to press the amendment to a Division.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I am well aware of the hon. Gentleman’s distinguished academic provenance in the law, and I am happy to talk to parliamentary counsel about the matter to see whether we can deal with it. I am also happy for him to press the amendment to a Division, but I draw his attention to the fact that we think that the provision is clear. If the view of parliamentary counsel is that it can be made clearer, of course we will be happy to act accordingly and table an amendment in due course. I undertake to seek the advice of parliamentary counsel, who will, of course, have the benefit of his advice.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

I am grateful to the Minister for that final concession. I am conscious of the fact that if a vote were to be called at this point, the amendment might well be carried. However, I am not confident enough of my drafting, which was done in a few hours last Thursday, to call a vote on whether to put the clause in the Bill.

Photo of Andrew Tyrie Andrew Tyrie Conservative, Chichester

Might the hon. Gentleman not consider calling a vote and getting the measure in the Bill? If his drafting is not quite perfect, the Government will be forced to sort the matter out on Report. Otherwise, we have no guarantee that we will ever sort this out.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

Yes, that is a strong point. I am totally convinced on it, so I think I should ask for a vote to be called.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

The hon. Gentleman is normally extremely courteous, but I point out that I have given an undertaking to the Committee that if parliamentary counsel think the matter can be clarified, it will be clarified.

We do not think there is any drafting defect. Obviously a vote is the essence of democracy and I would not for a moment resist that, but I have given an undertaking to the Committee, and by saying that we have no guarantee that this will ever be sorted out, the hon. Gentleman is slightly taking issue with what I have said. I hope he did not intend to cast doubt on the assurance I have given the Committee. I would be grateful to have his confirmation of that put on the record.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I have to tell the Committee that I am waiting for the hon. Member for Epping Forest to reply to the debate. If the hon. Member for Cambridge is indicating that he would like the Chair to grant a Division on his amendment, I am certainly prepared to do so. Of course, we could therefore have two Divisions. If the hon. Lady wishes to press her amendment No. 105, she has the right to do so and that would be the lead Division in this case.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

Much as I would be inclined to press amendment No. 105 to a Division, I have to admit that because of the timetabling of the Committee—I am sure, Sir Nicholas, that you will recall the exchange we had about starred amendments at the beginning of Thursday’s sitting—the problem came to light only when the electoral commissioner mentioned it when we took evidence on Thursday afternoon, as the hon. Member for Cambridge rightly said.

Practically speaking, I had not hours but minutes to draft amendment No. 105. It is important to bring this matter to the attention of the Committee so that it can be debated, as indeed we have just done. As I have already said, and as I am sure my hon. Friends and I will say many more times in considering the Bill, many areas are not clear. Law that is not clear is bad law. All we want to do is clarify the matter.

I accept entirely what the Minister says about it being unlikely that the circumstances we envisage might arise. Of course, I also accept—in the honourable way in which it was meant—that the Minister has undertaken to look at the issue and bring it back to the House for consideration on Report. That is important for the sake of clarity. However, I had only a few minutes to draft amendment No. 105 and I admit that the hon. Member for Cambridge is a better academic lawyer than I am. [Interruption.] I thank my hon. Friends for that vote of confidence.

The hon. Gentleman’s amendment No. 108 is rather more meaningful than my amendment No. 105, so I intend to seek the Committee’s leave to withdraw my amendment, leaving amendment No. 108 for consideration.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 12:30, 11 November 2008

We are getting slightly confused about the provenance of the amendments. It is our contention that the Bill is extremely clear. All members of the Committee have had access to the Bill and have, no doubt, read it with great care. Indeed, some of the amendments show how carefully Opposition Members have read it, so I am surprised that they have been deflected by a stray comment from the Electoral Commission’s evidence, which seems to have overturned their own careful reading of the Bill. Until then, they were completely satisfied by the clause, but now they suddenly think that something might be wrong. With all respect to hon. Members who have mentioned the shortness of the time that they had to draft something, they have had plenty of time. The Bill was there and the measure was clear. Everybody was clear about what the clause meant until the Electoral Commission made that stray comment.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I allowed a fairly lengthy intervention there so that the Minister could clarify the Government’s position.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

With all due respect, the Minister forgets that the whole purpose of the new procedure of taking evidence from outside people is to assist Public Bill Committees at this stage of proceedings in examining what is before them.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

Indeed. Not every member of this Committee is a good enough academic lawyer and parliamentary draftsman to pick up every possible defect in the Bill from their own reading of it. My goodness, I would have got a first in law if I could do that, but I did not. In any case, it is so long since I studied law that I have forgotten an awful lot of what I learned about parliamentary draftsmanship. The very purpose of having those learned people before us in the Committee last week was so that we might benefit from their wisdom and experience and therefore table amendments for discussion at this stage. That is exactly what the hon. Member for Cambridge and I have sought to do. I beg to ask leave to withdraw my amendment, and I hope that amendment No. 108 will be considered instead.

Amendment, by leave, withdrawn.

Amendment proposed: No. 108, in page 4, line 15, at end insert—

‘(4A) If a nominating party as mentioned in subsection (3) fails to put forward two persons to be considered for appointment as a nominated commissioner when requested to do so, the next largest party at the time shall be treated for the purpose of the particular appointment, and for the purposes of this subsection, as one of the three largest nominating parties.’.—[David Howarth.]

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 9.

Division number 1 Nimrod Review — Statement — Clause 5

Aye: 8 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I thought for a moment that I was going to have to use my casting vote. You have deprived me of that magnificent opportunity.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

I beg to move amendment No. 111, in clause 5, page 4, line 21, at end insert—

‘(6A) A nominated Commissioner may not participate, deliberate or adjudicate in any enforcement action or procedure involving, whether directly or otherwise, the party whose registered leader put forward the Commissioner’s appointment.’.

I am grateful for the opportunity to debate amendment No. 111, which would restrict nominated commissioners’ ability to participate in certain proceedings of the Electoral Commission. It is important to recognise and kick around the notion of what political commissioners add to the work of the commission and what they could and should have the responsibility to participate in.

In an earlier debate, I raised concerns about having commissioners from all political parties. I can accept about 99 per cent. of what the Minister said about good people who have the nation’s best interests at heart  trying to do a good job in difficult circumstances to ensure that electoral law is robust and something that we can all trust, but when we get to the point of adding a party political dimension, even as subtly as we seem to be doing with the party political commissioners, we deserve and require safeguards on their involvement and activity. The amendment would ensure that we secured and achieved that.

It looks likely, after our earlier proceedings, that my party would have a political commissioner. It is therefore incumbent on me to question what the political commissioners might get up to in terms of the Electoral Commission. My party and I will know because we will be there, but we want to ensure that we can trust those people to do the right thing with their contribution to the Electoral Commission.

I would like a few safeguards to be put in place. We should ask the political commissioners to exclude themselves from some of the commission’s workings, particularly when it comes to sanctions against other political parties, for example. I do not think that that would be right and appropriate. People in political placements, commissioners or whatever they are called, may be good people who look after the interests of the Electoral Commission and ensure that our electoral system is robust, but is it right that they should take decisions about other political parties and propose sanctions? That is why I have tabled the amendment.

We must be careful and conscious about the role of political commissioners. I would have liked to have gone further and debated amendments about their role. There is a debate to be had about how much they should participate in the work of the commission and what role they should have, particularly when it comes to sanctioning other political parties and ensuring that they are subject to inquiries. I would like to hear the Minister’s view on what safeguards or limits there should be on the involvement and participation of political commissioners in the general work of the commission.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

I do not consider amendment No. 111 necessary, but I do consider its principle absolutely correct. I am pleased that the hon. Member for Perth and North Perthshire introduced it so that we can discuss it. One would hope that the deliberations of the Committee might possibly be taken into consideration by those who run the Electoral Commission or the Speaker’s Committee and anyone else concerned with the consequences of the Bill. The principle that he has espoused is correct. I hope that the Minister will say that we do not need to incorporate the amendment, but that its intent and principle are correct.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

I support the amendment. This is not about the other things that the commission does, but, when enforcement proceedings are before the commission, it seems correct to say, clearly and openly, that the people nominated by political parties should take no part in consideration of sanctions against the party that nominated them. That is not to cast aspersions on the fairness or competence of those people, but to deal with the essential point that justice must be seen to be done—the appearance and the perceptions. It is absolutely right for that to be put in the Bill.

My only counter-argument is the old argument sometimes used by traffic engineers against putting up particular road signs. A road sign that says one should  not do something might imply that one can do all sorts of other things. That always seems to me to be a bad idea. Putting down this particular marker does not have implications for anything else that should happen in the commission—it does not say that, in other circumstances, it is permitted for commissioners to take part in proceedings that they would be barred from by the ordinary rules of public law. It is essential that this point about enforcement proceedings be part of the Bill.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

Of course we understand and are sympathetic to the intention behind the amendment. No one wants any suggestion of partiality, partisanship or bias to taint the work of the Electoral Commission. However, we believe that the amendment could be counter-productive. Any suggestion that those nominated commissioners would act in any way other than wholly impartially will damage public confidence in the Electoral Commission. If we create a two-tier commission by saying that nominated commissioners can deal with this, but not with that, we are, in essence, conceding the case that they may act in a partisan and biased way.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

Are they not just different, by being politically elected? The Minister is putting all the commissioners into the same box but that simply does not reflect real life.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

Of course they are different, in that they have wide political experience, which need not be elected experience, although they may have that. The hon. Gentleman is right, but that is not my point. Once they are members of the commission, they will be expected to act in an impartial, non-partisan way and we have every expectation that they will. To exclude them from certain areas, such as enforcement, is to concede the case, implicitly at least, that in such circumstances they may act so that their partisan bias overrides their belief in the integrity of the electoral system. We simply do not believe that to be the case. For all the reasons I set out earlier in Committee, we think that party leaders will nominate people who will act in the interests of the integrity of the system as a whole, not in the interests of the particular political party that they served in the past. All experience tells us that there are numerous people with political experience who will act in precisely that way. After the hon. Gentleman’s intervention, I shall come on to the question of the appearance.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

In a way it is a question of the appearance, but it is also a question of what the courts will make of this. Is the Minister absolutely confident that, in a judicial review of a decision of the Electoral Commission on enforcement—about a particular party, where someone nominated by that party took part—that the commission would be immune from having its decision overturned? I cannot see how he can be.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 12:45, 11 November 2008

The hon. Gentleman is a distinguished enough lawyer to know that I am not going to pre-judge the result of every court case, but I hope that he will agree with me that the courts make decisions based on  the facts before them at the time; he nods assent. If that is the case, what matters is not that a commissioner has been selected on the basis of their political experience, but the way they have acted in a particular case. What matters in this context is whether they have acted in a way that indicates partisan bias that could override the public interest and the integrity of the electoral system. What matters is the behaviour of each commissioner in the case in question, not their previous background or how they have been selected.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice, Shadow Minister (Shadow Solicitor General), Home Affairs

The point that the Minister is not taking into account—although he said he might address it in a minute—is that appearance is essential in all of that. A fundamental principle in the Sussex Justices case is that justice should not only be done, but be seen to be done, and that is the problem that the commissioner will face on judicial review if the Minister insists on his present line of argument.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

With all respect to the hon. Gentleman, I thought that he was asking me how the courts would decide in a particular case, and I thought that we agreed that the courts decide on the facts, rather than on the appearance of the facts—[Interruption.] Well, it is a fundamental principle that justice should be seen to be done, and of course that is right. In questions of judicial review, however, what matters is whether or not the commissioners have acted with bias. We are confident that they will not. If they do, they of course will be vulnerable to judicial review.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Justice)

Does the Minister agree that, if a matter of narrow party political interest arose that would significantly affect a party and was being considered by the Electoral Commission, it would not be sufficient to prevent the one commissioner nominated by that political party from taking part in proceedings and that, if bias is to be assumed, all the commissioners nominated by political parties would have to be prevented from taking part? If bias is to be assumed, and that is a logical conclusion, there is no point in having those commissioners. I would argue that there is a point in having the commissioners and that we have to assume that there will not be bias because that is the nature of the type of person who we, as a legislature, envisage will take the role of commissioner having been nominated by a political party.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

When the hon. Lady began her intervention I thought that she was about to disagree with me, but I think that by the time she had finished she was agreeing with the point I was trying to make. I will come exactly to the point about appearance. The hon. Member for Cambridge is of course right: not only must we expect the Electoral Commission to act without bias, but it must be seen to do so. The whole point of the amendment is to create the impression that the nominated commissioners cannot be trusted to act without bias, and that must be counter-productive.

The whole point, as the hon. Lady said, of having the nominated commissioners is to bring political experience. If we agree, as the Committee on Standards in Public Life does, that we should have such commissioners to improve the integrity of our public life and ensure that the Electoral Commission can act as a regulator with  the proper knowledge and experience to bring to bear on the difficult decision it has to make, we must proceed on the assumption that those nominated commissioners will act without bias. The amendment calls that into question. Were it to be accepted, it would have the opposite effect to that which it is designed to achieve. We hope that the Committee will, after consideration, and while being completely sympathetic to the aims behind the amendment, proceed on the assumption that we can trust the nominated commissioners to act without bias, that the amendment would cast doubt on that and that it should be rejected.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

This is an important point. A month ago the new provisions of the Companies Act 2006 dealing with conflicts of interest for directors came into force. The Minister may wish to look at them, because conceptually, in corporate governance terms, until then it was a matter for the board to make up its own mind, as he is saying. Company law has now changed that attitude, and a procedure is now laid down for dealing with conflicts, which is based on a mixture of shareholders, the board and the articles. In corporate law, we have moved away from the position that the Minister is advocating in the Bill. He may want to look at how corporate life has moved on, because it has implications for the Bill. We may not end up with exactly the provisions that have been suggested, but there are procedures that should be put in place.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

I am grateful to the hon. Gentleman for his constructive and helpful suggestion and, of course, we must always be prepared to learn from other experience, but, with all due respect, this is a different area of public life. We cannot, as a Government or a Committee, seek to micromanage the judgments of the commission on often very complicated, difficult and important issues, and we do not want to. Setting out a process for doing that, particularly in relation to the amendment excluding commissioners, trying to decide whether we have the whole commission for this or only part of it for that and creating a two-tier structure would be counter-productive for the reasons that I have stated. I hope that the Committee will resist the amendment if it is pressed.

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

The Minister has been pretty convincing this morning, but he is on less steady ground in response to this amendment, and I say that with great respect. We have to have it out there and accept that there are two classes of commissioner: the standard commissioners of the Electoral Commission and politically appointed commissioners. We cannot get away from it—there are two different types and two different standards. To pretend otherwise is naive on the Minister’s behalf. The commission itself raised doubts about that.

We always have to remember that when something is reported on and when conclusions are made, it is passed to the police. Those cases and circumstances may become police investigations, so the charge of political bias will be open to legal challenge. I am a former musician, not a lawyer like some of the distinguished people here, but anything that could be open to a legal challenge on that basis cannot be a good thing and has to be dealt with. The Minister’s response has not convinced me. In very difficult situations and circumstances, political commissioners taking a view on enforcement issues with other political colleagues is not the way forward. I have great concerns and I shall press the amendment.

Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice

To be clear about the position, theoretically it is, of course, possible that those nominated commissioners may have to recuse themselves. I am not ruling it out or saying that they have to be present at all points in all discussions on sensitive issues. That is not the case. There may be such eventualities—I cannot speculate on what they might be now—but it would be wrong to rule out the theoretical possibility that they may all have to recuse themselves for the sort of reasons that the hon. Gentleman advanced. However, do we want to constrain the operation of the commission in the way that he suggests, given that that may have precisely the opposite effect to what the Committee, as a whole, wants to achieve with the Bill with the inclusion of the nominated commissioners?

Photo of Pete Wishart Pete Wishart Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (International Development), Shadow Spokesperson (Justice)

That is a helpful intervention, but I would prefer something that gives that protection and guarantee in the Bill. I shall press the amendment to the vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 9.

Division number 2 Nimrod Review — Statement — Clause 5

Aye: 3 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 16, Noes 1.

Division number 3 Nimrod Review — Statement — Clause 5

Aye: 16 MPs

No: 1 MP

Aye: A-Z by last name

No: A-Z by last name

Question accordingly agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.