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. 5
pm 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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