Political Parties and Elections Bill

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Mr. Wills: I am grateful for the spirit of the contributions to the debate from the hon. Members for Huntingdon and for Cambridge. We are broadly in agreement about where we want to go. Before I regretfully have to resist the amendment, I want to address the matter of lateness raised by the hon. Members for Chichester and for Huntingdon. Some amendments were tabled late, and we very much wish that that were not so. The team of excellent and extremely hard-working civil servants who worked late into the night to draft them certainly would have wished to have been able to deliver them earlier. However, everyone recognises that it is important to take account of the new Public Bill procedure, all the evidence that was received and the recent contributions to the debate. That is why it was not possible to table amendments sooner. I realise that issues are involved, but I mean what I have said on many occasions. We want to achieve consensus as far as possible, and it is important that we do so.
I remind the Committee that the White Paper on funding was published on 16 June and that the Bill itself was published on 17 July, so there has been a reasonable passage of time for members of the Committee to get their heads round a lot of the issues.
Mr. Tyrie: Does the Minister really think that it is a consensual and reasonable approach to expect Opposition Members to absorb amendments that were tabled on a Friday for debate the following Tuesday, when the whole purpose of the process in which we are engaged is to attempt, as far as we can, a constitutional change with which all parties can agree? Might it not have been possible to re-timetable matters so that we had a week’s interval between the Public Bill Committee-style evidence and the Standing Committee procedure? If we had had that, we would not have had such difficulties.
While we are at it, what on earth is the Government’s Gadarene rush about in trying to get the Bill on to the statute book so quickly?
The Chairman: Order. I can understand frustrations being expressed by all Members. I feel them frequently myself, but we are talking about specific amendments. Along with amendment No. 38, we are discussing amendment No. 79 to clause 1, not the processes regarding why it took so long in the past to draft amendments, or why it might take so long in the future. Can we address the amendments, please?
Mr. Wills: Of course, Mr. Cook. There is a general consensus, including from the commission, that its role should be to withdraw from the wider role of encouraging democratic engagement, and therefore the Government have accepted the recommendations of the Committee on Standards in Public Life that it should no longer have that role. We have also accepted its recommendation that the Government should retain a clearly defined statutory role for the provision of public information on the mechanics of the electoral process, including election registration procedures, how to vote and an explanation of changes to the electoral system.
As we said in our response, the Government believe in informing the public of the mechanics of the electoral system, including the registration process. We have already had some exchanges in Committee about the importance of maintaining the register. We know that such practice is key to maintaining a strong democracy. Repealing section 13 of PPERA would prevent the commission from performing that vital function. Amendment No. 79, which would amend clause 1 to limit the commission’s role to
“monitoring, and taking such steps as they consider appropriate with a view to securing, compliance with”
the controls imposed by the 2000 Act, would actually create a problem. It is clear that everyone agrees how important it is that the commission focus anew on its monitoring functions, and that it has appropriate powers to perform them effectively. However, the amendment goes too far. It would prevent the commission from performing any of its other legitimate functions, as set out in PPERA. The hon. Member for Cambridge has already alluded to that.
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We have already said that we accept that the commission should no longer have a role in promoting that wider participation. We do not believe any legislative changes are required to implement that. Furthermore, we have already accepted the recommendations of the Committee on Standards in Public Life that the Electoral Commission should no longer have any involvement in electoral boundary matters and that the provision in PPERA that allows for the transfer of boundary setting functions to the commission should be repealed. We therefore believe that the amendments are not necessary and that they would prevent the commission from carrying out some of its remaining vital functions. I therefore hope that the hon. Member for Huntingdon will withdraw his amendment.
Mr. Djanogly: The hon. Member for Cambridge explained the shortcomings of amendment No. 79 and I accept much of what he said. I think he understood that the underlying point is that we need to be satisfied with the focus of the commission. However, that is more of a matter for a stand part debate and I will come back to it then.
Again, I agree with the Minister that the drafting of the amendments is perhaps not up to the job, but I do not agree that the concept behind the amendments is wrong, which is, I think, what he went on to say. We do not think that the focus is right and so, although I will not press the amendments to a Division, we will consider the matter again when we move forward to the next stage of the Bill.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Nick Ainger (Carmarthen, West and South Pembrokeshire) (Lab): I beg to move amendment No. 2, in clause 1, page 1, line 10, leave out ‘may’ and insert ‘shall’.
The Chairman: With this it will be convenient to discuss amendment No. 81, in clause 1, page 1, line 13, leave out ‘, or is sufficient’.
Nick Ainger: May I say, Mr. Cook, how pleased I am to be serving under your chairmanship again? The purpose of the amendment is to ensure that the Electoral Commission publish clear guidance for political parties, donors and those regulated by the 2000 Act. I note that Government amendment No. 125 uses the word “shall” in relation to other guidance that is to be published by the commission. I am surprised that the Government have not used the word “shall” in the clause.
This morning, we heard the words “complexity” and “complexities” used on a number of occasions about the Bill and the 2000 Act. Bearing it in mind that these are complex and important issues, particularly for the individuals and parties that might be affected by monitoring and regulation as a result of the 2000 Act and this legislation, clear guidance should be provided by the Electoral Commission so that people can refer to it and establish whether they are complying with the regulation and what they should do. It is interesting that clause 1 sets out the terms of reference for that guidance, which is extremely helpful:
“(a) what it is necessary, or is sufficient, to do (or avoid doing) in order to comply with the requirement;
(b) what it is desirable to do (or avoid doing) in view of the purpose of the requirement.”
In the Bill, we say that there should be clear guidance, but we do not say there shall be publication of that guidance. I would be grateful if my right hon. Friend the Minister explained why, in this part of the Bill, the Government say that the Electoral Commission “may” publish guidance, but elsewhere that it “shall” do so.
Mr. Djanogly: We have added our names to those of the hon. Member for Carmarthen, West and South Pembrokeshire and others. Clause 1 would insert a new subsection (6) into the PPERA, requiring the commission to publish guidance on how to comply with the provisions of the Bill. That is recognition by the Government that the Bill introduces complex and administratively burdensome duties, which would have to be implemented by those at the lowest level of the party structure, who are often volunteers and have little or no legal training. The commission will need to produce guidance to assist parties at the local and national levels to bring their practices in line with the Bill. That will be a considerable undertaking for the commission in the aftermath of the Bill’s enactment. Failure to produce guidance in a timely and concise fashion would have potentially wide-ranging and detrimental impacts on both the commission and those who must implement the Bill’s provisions.
Peter Wardle, the chief executive of the commission, highlighted the commission’s own emphasis on the need for guidance in the second sitting of the Committee last week:
“There are lots of questions about the Bill at the moment. We are already beginning to try to work out what our guidance would look like and we would hope to have that guidance in the public domain by January. I do not think that it is possible to get anything useful and in detail in the public domain before then.”——[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 47, Q113.]
Can the Minister give us some idea of the projected cost to the commission of producing the guidance? Will the commission be given any additional financial or personnel resources to handle the increased work load as a result of the legislation being passed? Have the Government consulted with the commission on its needs? If so, could the Minister circulate a copy of the commission’s response?
The aim of amendment No. 2 is, again, to give a clear indication to the commission about the focus of its remit. The amendment looks to reverse some ambiguity in the Bill. That the commission
“may prepare and publish guidance”
implies a level of discretion. We wish to ensure that guidance is given the priority it needs and that the commission is compelled to issue it. The publication of guidance should form a key part of the commission’s role in the coming years, while the Bill—when enacted—and its requirements are bedding down. That would not only assist parties and their officials in complying; it would also go a long way to rectifying the commission’s damaged reputation in the eyes of many.
On amendment No. 81, likewise, we find the inclusion of the phrase “or is sufficient” to be strangely confusing and ambiguous. What is “necessary” and “sufficient” should be one and the same. If something is sufficient, but not necessary, we are possibly imposing a split level into the test, which is surely not the best way forward. I shall be interested to hear what the Minister considers necessary and what he considers sufficient. Given the complexity of the Bill’s schedules and the clear possibility of confusion, we as legislators should be doing as much as humanly possible to ensure that we are clear about what must be done to comply with the law. As I noted, the commission’s guidance will prove invaluable when parties go about implementing the Bill’s provisions. Guidance should be published as quickly as possible, setting out clearly what needs to be done. Let us deal in black and white as much as possible. The phrase “or is sufficient” introduces grey areas, which are the last things that we or the commission need. We suggest the phrase’s deletion.
David Howarth: I, too, support amendment No. 2, and like the hon. Member for Carmarthen, West and South Pembrokeshire, I look forward to an explanation from the Government as to why, in this part of the Bill, the commission is given a power to give guidance, whereas elsewhere it is given a duty. The commission’s response implies that a duty here would produce a vast amount of work, which leads to the question of why that is not the commission’s view of its existing obligations under the law. There is a link between this and the previous debate—if the commission is being asked to focus attention on its regulatory activities rather more than in the past, that should free up resources from the other functions to devote to this area.
However, I cannot support amendment No. 81, which, if anything, is the wrong way around. The difference between “necessary” and “sufficient” is as follows. If a party official trying to comply with the law is told that various things are “necessary”, they are told that they have to do them, but not that that is enough to comply. A lot of things might be necessary, but not add up to enough to comply with the law. If they are told what is “sufficient” to comply, that is much better. It gives them a safe harbour, because if they comply with the guidance, they are okay and know that they have not broken the law. It seems to me far more important to have guidance on “sufficient” conditions for compliance than on “necessary” conditions. If the hon. Member for Huntingdon wanted to remove part of the clause, he would have done better to remove the word “necessary”.
Mr. Wills: I will address some of the detailed issues that have been raised in a moment. First, I shall explain briefly why we will have to resist both amendments.
Amendment No. 2 is unnecessary as it would be unhelpful to have in primary legislation such a hard requirement on the commission. We have every confidence that the commission will produce the guidance as necessary, and I am aware that it has already started work on it. However, in practice it would be difficult for a statutory requirement that it must produce guidance to work. What would constitute the guidance having been produced? Who would judge that it was adequate and that the commission had fulfilled its statutory obligation? It seems to me that the amendment would open it up to judicial review, which can hardly be a sensible recourse given what we are trying to achieve in the clause. A permissive power for the commission to produce guidance is sufficient. It will be able to keep the guidance updated and refreshed and focused on key areas of uncertainty. Amending the Bill in the way sought in the amendment would not add anything.
Amendment No. 81 would limit the commission’s guidance to setting out what it is necessary or desirable to do, or avoid doing, to comply with the requirements of the 2000 Act. We believe that the clause will allow the commission flexibility to decide what information it should set out in its guidance to help regulated individuals to comply with regulatory requirements. The amendment would unnecessarily restrict the commission’s flexibility.
The clause will allow the commission to produce a wide range of guidance, including best practice guidance and pro formas that parties can complete if they wish to comply with the requirements on them to report to the commission. We believe that that flexibility will help Members and other regulated persons.
Both my hon. Friend the Member for Carmarthen, West and South Pembrokeshire and the hon. Member for Cambridge asked why in some parts of the Bill we suggest that the commission should be given a power, but in others we seek to impose a duty on it. Quite simply, the difference is that the commission “shall” produce guidance on the use of investigatory powers and sanctions, but it “may” produce guidance on the requirements of the 2000 Act. That is because sanctions and powers are a much narrower issue with potentially serious consequences, and the commission must therefore explain how it intends to use them.
The requirements of PPERA are many and complex, and the Electoral Commission must be empowered to judge which aspects require explanation. Requiring guidance on every single aspect of the Bill would make it very difficult and effectively inoperable. I hope that that gives some reassurance to my hon. Friend and the hon. Gentleman about why we have adopted the distinction between the application of the power and the duty.
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