Mr.
Wills: 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.
The
Chairman: I allowed a fairly lengthy intervention there so
that the Minister could clarify the Government’s
position.
Mrs.
Laing: 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.
Mrs.
Laing: 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withdrawn.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
No.
1] Question
accordingly negatived.
The
Chairman: I thought for a moment that I was going to have
to use my casting vote. You have deprived me of that magnificent
opportunity.
Pete
Wishart: 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.
Mrs.
Laing: 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.
David
Howarth: 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. Mr.
Wills: 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. Mr.
Jonathan Djanogly (Huntingdon) (Con): 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.
Mr.
Wills: 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.
David
Howarth: 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. 12.45
pm
Mr.
Wills: 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.
David
Howarth: 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.
Mr.
Wills: 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.
Mrs.
Laing: 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.
Mr.
Wills: 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. | 
