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.
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. 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. 12.15
pm 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. 12.30
pm
| 
