Political Parties and Elections Bill

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The Chairman: 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.’.
Mrs. Laing: 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.
David Howarth: 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.
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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.
Mr. Wills: 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.
Mrs. Laing: 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.
Mr. Wills: 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.
David Howarth: 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.
Mr. Wills: 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.
David Howarth: 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.
Mr. Wills: 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.
David Howarth: 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.
Mr. Wills: 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.
David Howarth: 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.
Mr. Wills: 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.
David Howarth: 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.
Mr. Tyrie: 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.
David Howarth: Yes, that is a strong point. I am totally convinced on it, so I think I should ask for a vote to be called.
Mr. Wills: 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.
David Howarth: I think that we should have a vote on the matter.
The Chairman: 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.
Mrs. Laing: 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.
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