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We turn to a very important issue that has preoccupied a great many people: whether or not there should be at the highest level in the Electoral Commission people with direct political experience. Clause 5 in an important way modifies the previous Political Parties, Elections and Referendums Act 2000. I should say at the outset that I was agnostic to this proposal, partly because of my experience in the informal group of parliamentarians. I have come around to it and, therefore, I have the merit of conversion, having looked at the arguments very carefully, which are more balanced than perhaps some are prepared to admit.
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I have looked carefully at the evidence given to the Committee on Standards in Public Life on this issue, and at the conclusions reached by Sir Hayden Phillips. These are important issues and I hope that the Grand Committee will forgive me if we spend time on them, because this is our only opportunity to discuss them. This is our only amendment on the body of Clause 5 and it is important that we examine it with some care.
I was struck by some advice given to the Committee on Standards in Public Life. Those who were doubtful about the proposition made much of the fact that commissioners might see themselves as representatives of political parties, and indeed of the leaders of those parties at the time, rather than feeling that they were bringing to the corpus of information and experience of the commission a more practical approach than perhaps has been apparent in the commission’s relatively short life. The argument was made to the committee that the Electoral Commission should not only be above party political wrangles, but should be seen to be above them. The previous chair, Sam Younger, made the point strongly. In his evidence to the committee, he said that,
- “do not have is the experience of operating as either elected politicians or actively within parties. Therefore we need to have access to that expertise and experience, and that we recognise ... There are various ways we have tried to plug that gap. Most recently, and I think probably this is overdue, and I hope it will work and is without prejudice to what might happen in the future either statutorily or otherwise—but we have established a small reference group of three members of the House of Lords, three members of the House of Commons, from each of the main parties”.
That is the group to which I referred. It was clear that the commission and the chairman saw that there was a gap there, but they were not enthusiastic about filling it on a statutory basis.
There were others who gave advice to the committee. My right honourable friend Alan Beith MP, who was probably then the chairman of the relevant Select Committee—this was a few years ago—said that:
“There were other cases where I think the Commission did not understand the distinction between those things which confer advantage on a candidate in an election, and therefore should be looked at and costed by them and declared to them, and those things which are part and parcel of being a member of parliament and carrying out public duties ... All of these things, I think, illustrated a lack of awareness of what went on in the real world of being a politician and not of a partisan character”.
The committee took a great deal of evidence from active politicians and others on this issue. I have one more quotation, this time from Lord Holme, who sadly is no longer with us. He gave a great deal of thought to this and, as chairman of the Constitution Committee of your Lordships’ House, was very exercised by the failure to take account of the experience of other countries. He said, in evidence to the committee:
“I think there is a danger that you get what has happened with the Federal Electoral Commission in the States, which has really just become a forum in which the parties negotiate. It is really no more than that; it is a place, as you have no doubt observed, where the parties cut their deals. I think that would be extremely undesirable ... There is a danger, if the party nominees bounce in
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I am sure that all Members of the Committee would say amen to that. Clearly it would be the wrong way to go.
The recommendations of the committee were firm: if there was going to be change—and this was very much the desire at the time—the new commissioners should be appointed as individual members of a unitary board, not as representatives or delegates of a particular political party. The committee set out some proposals to try to achieve that.
Turning to the Hayden Phillips investigations of these issues, much of that evidence was again reflected in the analysis that was the subject of that inquiry. His conclusion was:
“Would the addition of these four Commissioners unbalance the Commission itself, causing it to be divided along party lines? ... The majority of Commissioners would not come from the political parties and the four with party experience would not be representative of their parties. For the most part, I would envisage that they would be former politicians, men and women who understand party politics but whose primary allegiance as Commissioners would be to the public interest, rather than to the partisan cause”.
That is the point that we address in Amendment 74. Frankly, the way in which that is currently set out in the Bill gives no guidance to the party leaders, let alone to the general public, regarding the sort of experience and expertise that will be expected of these four commissioners. The last thing we would want is four splendid individuals who are redundant politicians and who have ceased to have any real value but may be rather difficult to satisfy in terms of something to keep them out of the way—people such as myself. That would be entirely inappropriate. We have to be extremely careful that the party leaders, individually and collectively, are given guidance about what will be expected. Hence, our emphasis on diversity. We see it as important that the party leaders talk to one another so that the four representatives are not all from the same sort of stable—all elderly, male, white, former party apparatchiks. As we say very clearly in our amendment, we are looking for a number of people who have relevant experience in the conduct of elections and the organisation of political parties but who also bring to the commission some diversity of representation.
As I said at the outset, it is extremely important that, once someone is nominated, he or she is not seen as the representative of a party, let alone a party leader. Party leaders change, and the last thing we want is for someone who is put on to the commission to feel that they are there at the mercy or whim of the party leader. As I said, party leaders change, and we do not want a lack of continuity or consistency in the contribution that can be made.
Just as dangerous would be to have a yes man or yes woman who was simply there to represent the views of the party hierarchy. If we are going to try to ensure that there is direct experience of the way in which elections happen at the grass-roots level, that is not the sort of person who should be eligible for this purpose.
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It is not entirely clear—I hope that in responding the Minister will be able to give us some guidance—whether the term of office and general responsibilities of these new commissioners will be exactly the same as set out in Schedule 1 to the PPERA. If so, we might find that they are rather too much at the mercy of their nominating party leader. This is a good moment to ask the Minister whether there will be security of tenure. This is a dangerous thing to say, I know, but we are all aware that at the moment in your Lordships’ House we are here for life; we are not in any way—I shall have to be very careful where I tread here—at the mercy of our party leaders. There may be other considerations as to whether or not we remain here, but that has its own merit and it is a hostage to fortune, not least in the terms set out by the noble Lord, Lord Norton of Louth. However, it is important that the commissioners are not seen to be there simply for a temporary period while a particular party leader thinks that they will be good representatives of his or her interests and his or her party. Therefore, the whole issue of security of tenure is extremely important.
We hope that the Minister and other Members of the Grand Committee will see this as a practical way to face up to an important issue. It is an important change to the mode of operation of the Electoral Commission. Just as important is the change to perception that the public and those active in the political world have of the commission and the way that it operates. Given experience since the PPER Act, there are anxieties about the extent to which the commission has its feet on the political ground. However, we would be stepping in the wrong direction if in the process, either in practice or in perception, we gave it the impression that it was to be the creature of the political leaders. I beg to move.
Baroness Gould of Potternewton: I have a little problem with the amendment. It is not that I disagree with it, because in a sense I do—I agree with the fundamental feeling behind it—but I am not certain whether putting only this provision in the Bill is right. Would it not be better to pick up the points raised by the noble Lord, Lord Tyler, on the wider issues around the role of the commissioners? Perhaps some guidance can be given to the Speaker’s Committee, which is ultimately responsible, on what we expect of those commissioners, rather than having selective points included in the Bill. I agree that we must take notice of diversity and that we must have people with experience.
I want to pick up a point made by the noble Lord, Lord Tyler, that he repeated two or three times. When he talked about people with experience, he talked about politicians. There are many other people who are not politicians and who have an enormous amount of experience, and who therefore may be better people to do this job. We must ensure that we do not see the situation only in those terms.
I support the Government’s proposal on the four places. As the noble Lord, Lord Rennard, and others know, we spent a lot of time on this issue in the 2000 Bill and failed to persuade the Government, even though everyone around the House thought that it
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Perhaps I may give an example and also declare an interest that I failed to declare yesterday. I am chair of the HS Chapman Society, a body that looks at election organisation and of which the Electoral Commission is a part. The society frequently received reports from the commission about its work, and I felt very sorry for a young man who appeared when the commission produced a series of educational documents for review. He was telling us how wonderful it all was, that all the documents were going out and that one had a week to reply. There was also all the nonsense that was going on at that time. I asked him, “And who actually decides the response to those documents? Who actually goes through the responses and says what is right or wrong?”. He said, “Oh, well, as officers, we sit and do this”. I asked, “And do you have any involvement in the political parties?”. “Oh, no, never”, he said. That could not have been a better example for having some political involvement. I have to say that I felt sorry for him because I felt that I had been a bit cruel to him.
Nevertheless, I believe that the Government are absolutely right to make these provisions: it is also absolutely right that there has to be experience of the democratic process. I make the point about politicians because a wider spectrum of experience is needed. The process would help the political parties to feel more comfortable with the Electoral Commission.
I have one little query on how the appointments are made. The review of the Electoral Commission by the CSPL makes the point that although individuals may be encouraged to apply by political parties, each post should be publicly advertised and candidates must satisfy all other criteria that apply to commissioner posts. It says that they must also be subject to a selection process based upon merit following the Commission for Public Appointments’ code of practice. I hope that that will be the process by which appointments are made. It is interpreted that this will somehow be a direct appointment from the leader of the party. I really have some reservation about that. It is not that I do not think for one moment that people cannot be independent—I am sure that many people around this Chamber have been appointments of their own political parties, but have ultimately stood in an independent capacity in those appointments. I do not feel that they would end up being the voice of the leader; I feel that democratically we ought to look seriously at how those appointments are made.
I repeat that I support the Government’s proposals, but I feel that what is in the Bill is not quite right.
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Lord Brooke of Sutton Mandeville: I am delighted to follow the noble Baroness, Lady Gould. We are extremely fortunate that she is serving in this Grand Committee. On a wider front, we are extremely fortunate that she is the chairman of the HS Chapman Society, an organisation with which I am familiar not least also in Australia. It is an organisation of considerable value to the general body politic.
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I have to declare an unusual interest. My wife is the administrator of the fellowship of retired Conservative agents, whose membership is thrice the number of agents the Conservative Party could afford to field at the last general election. But it means that from time to time I am brought up sharp on election law.
I want to make two comments. One relates to paragraph (a) and the other to paragraph (b) of the amendment. First, I was the first headhunter in the United Kingdom nearly 50 years ago. I planted an acorn and there is now a very substantial forest throughout the recruiting world. One of the areas in which you had to exercise considerable discipline was in ensuring that the client was quite clear what they wanted before we set out to look for the person. Periodically, we had to disagree with their specifications and had to persuade them to change. But it was absolutely essential to do that at the beginning of the process, which is why I find paragraph (a) a wholly worthwhile contribution to the debate. I have no reservations about it being in the Bill.
However, I do have misgivings about paragraph (b). It seems to me that under American anti-trust law, you would have to be managing a cartel to know how your nominee would fit into the creative diversity of appointments by the other members of the team. If the noble Lord, Lord Tyler, is contemplating that such meetings will occur to facilitate discussions on how parties could help the diversity by the choice of their person, that should be referred to in the Bill. It is difficult to imagine how you would do it otherwise. Frankly, without some degree of mutual conference, choosing your candidate against the terms of paragraph (b) would be like sticking the tail on the donkey at a village fete.
Lord Campbell-Savours: I want to ask a very simple question. With the permission of the Committee, I shall do so now so as to avoid doing so in the clause-stand-part debate. What would the role of the party-appointed commissioners be when decisions on penalties are being considered? Even though a commissioner had made every effort to be utterly independent in judgment, if they have such a role, surely the Committee should be considering it at this stage.
Baroness Gould of Potternewton: That is an important point. There may have to be occasions when the commission does not participate. That is why I return to the point that we need proper guidance. We need something properly written down about the role of those commissioners and the terms of their appointments to make sure that all these points, which could be fundamental, are actually covered.
Lord Campbell-Savours: My noble friend, who has great experience in these matters, referred to guidance. Do we not need a little more than that? Guidance can be ignored.
Baroness Gould of Potternewton: I concede that.
Lord Henley: We broadly support Clause 5 as it is, and in doing so, support subsection (3), which we are largely discussing today, dealing with the three nominated
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Like my noble friend Lord Brooke, I have problems with the second part of the amendment which seeks diversity. It might be an admirable thing to do, but as my noble friend pointed out, it is difficult to go for diversity when you have the sole right of appointment of one commissioner, someone else has sole right of appointment of another and the third is appointed by a third person—unless the three leaders get together to discuss their appointments to see that they are being diverse. I would have thought that there would be sufficient diversity in the fact that the three appointees will be of the three different political parties, which would make them sufficiently diverse for the noble Lord. That is what we expect from appointees from the leaders of the three parties. We broadly support Clause 5 as drafted, so I do not think that I can offer any support at this stage for the amendment.
Lord Borrie: I offer a few words before the Minister responds. Like my noble friend Lady Gould, I agree with so much of the principle that lay behind what was said by the noble Lord, Lord Tyler. In particular, I agreed with what he said about party representatives and the others. The Bill makes it clear that the party representatives are intended to be a minority of the total commission. Clearly, they must all work together. They would not work together very well if the party nominees regarded themselves as representatives of parties, let alone representatives of the party leader. I agree with the points made by the noble Lord, Lord Tyler, on that.
However, like my noble friend Lady Gould, I am doubtful about the amendments. I realise that the noble Lord had to table amendments to enable discussion about the Bill, but with the best will in the world, and no doubt he has looked at the drafting carefully, the wording of his amendments to Clause 5 is not apt at all. Perhaps that is being a little harsh. Paragraph (a) would
and so forth. But that is much too narrow. It would no doubt be delightful and excellent to have someone of the huge experience of the noble Lord, Lord Rennard, and if that could be equated in the other parties, that would be fine, but that is only one version of what is meant by,
That is really much too narrow.
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Others have commented on diversity. I very much agreed with the cartel points that seemed to resonate through my mind when the noble Lord, Lord Brooke of Sutton Mandeville, spoke. But diverse does not necessarily mean what has been intended. I am familiar with the fact that in recent changes made by the Government in judicial appointments, emphasis has been made on diversity to ensure that more people enter the judiciary who are not white and that there are more women than we have had in the past, particularly at the higher levels. That, I suppose, is what the noble Lord, Lord Tyler, means—but on the face of it, it could mean “diverse representation” from those experienced in the conduct of elections for the European Parliament in devolved parliaments and local government. It could mean diversity across a whole range of fields; diverse does not necessarily have the meaning that the noble Lord seeks to give it, so I think that paragraph (b) is too vague.
For a whole number of reasons, but principally for the one enunciated by my noble friend Lady Gould of Potternewton, it would not be appropriate to try to do this in the Bill, even though a much better outcome could be reached than the original wording chosen by noble Lords opposite.
Lord Norton of Louth: I raise one point that has not been touched on. I have considerable sympathy with the substance of paragraph (a), although it may be important to stress the desirability that someone has that background, rather than prescribe it. I also have sympathy with the point made in paragraph (b), although I recognise the problems that have been identified when you are appointing only one person. The problem I would draw attention to is the relationship between the two; it might be a bit depressing to do so, but paragraph (b) supposes that paragraph (a) encompasses a fairly diverse body of people already. You would have to do a study of those who have actually got the experience of the electoral system in this country—electoral administrators. It may be that we find that, with regard to the diversity to which the noble Lord, Lord Tyler, refers, we do not have a very diverse group from which to draw, which might limit it. There would be dangers in putting it in the Bill, even though it is in very general terms of having regard to. In practical terms, there may be a problem with the relationship between the two paragraphs, and therefore a danger in putting those two proposals together in the Bill.
Lord Tunnicliffe: I thank noble Lords for this interesting debate, particularly the story of the conversion of the noble Lord, Lord Tyler, from being an agnostic to a supporter of the basic principle. I thank the noble Lord, Lord Henley, for reminding in his careful way us that behind this Bill is consensus. On this clause, I believe that that consensus is strong. I note that those who participate in the debate all support the basic principle of nominated commissioners.
Clause 5 makes provision which enables the appointment to the commission of four commissioners with recent political experience. These commissioners are referred to as nominated commissioners. Clause 5
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- “registered party leaders must ensure ... that the nominated person has relevant experience in the conduct of elections and the organisation of political parties; and ... have regard to the desirability for the overall composition of the Commission to benefit from diverse representation”.
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I fully appreciate the intention behind the amendment, which I believe is to ensure that the individuals who are put forward by the leaders of their parties have the relevant experience and skills that would enable them contribute positively to the overall effectiveness of the commission, with the advantage that an organisation gains from a diverse membership.
Given the Electoral Commission’s role in relation to elections and party financing, there will no doubt be general agreement in this Committee that the nominees should have relevant experience in these fields. Noble Lords will also agree that diversity is important and should be appropriately taken into account in making these nominations. There will be other essential and desirable criteria which the Committee believes should be met by a person before he or she is put forward for appointment as a nominated commissioner.
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