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However, I do not think that the best way forward would be to set out these criteria in legislation. Through Clause 4, we have made it clear that responsibility for the recruitment and selection process of the electoral commissioners lies with the Speaker’s Committee. It should therefore be a matter, first, for the party leaders, and then for the Speaker’s Committee working in conjunction with the Electoral Commission and relevant stakeholders, to decide the necessary criteria and appropriate candidates for the post of nominated commissioner. I have no doubt that party leaders will consider, in putting forward candidates for appointment, whether the nominees have the requisite skills, experience and other attributes.
In addition, we have every confidence that the Speaker’s Committee will give careful consideration to agreeing robust and relevant criteria for the post of nominated commissioner. The Speaker’s Committee will no doubt communicate these criteria to registered party leaders to ensure that they are able to make informed nominations.
For these reasons, we do not believe that setting separate criteria in legislation would serve any useful purpose. Doing so would seem to prejudge the outcome of any consideration that the Speaker’s Committee might want to give as to what the appropriate criteria should be before it has had the chance to consult the relevant interests. It would reduce flexibility if there was any desire to change those criteria over time. In addition, it could be misleading, by giving the impression that it is only these specified criteria which must be met before a person can be considered for appointment.
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The point of the noble Lord, Lord Tyler, about the committee cutting deals was well made. It is essential that it is not that kind of committee. It is important to realise that appointing nominated commissioners does not alter the role and functions of the Electoral Commission. Nominated commissioners are not intended to represent political parties and will, as the noble Lord, Lord Tyler, said, be in a minority.
The terms of office for nominated commissioners will be the same as for other commissioners, the only difference being that the restriction on political experience is lifted. Terms of office and other criteria will be set by the Speaker’s Committee.
The noble Baroness, Lady Gould, asked how the Speaker’s Committee selects members of the Electoral Commission. In practice, the committee has always recruited electoral commissioners on the basis of open competition in accordance with the OCPA principles, despite not being bound by statute to do so.
The commission’s staff make decisions on penalties, seeking approval of commissioners as appropriate. Nominated commissioners from the four different parties will not be in a majority and will be expected to act in a non-partisan way.
The reason that we feel that we need to resist the amendment is, first, the level of consensus that sits behind this part of the Bill and, secondly, that we do not see the value of having criteria in the Bill; we think that the Speaker’s Committee working with party leaders and other stakeholders is the appropriate place. On this basis, I hope the noble Lords will agree to withdraw their amendments.
Lord Campbell-Savours: My noble friend said that commissioners are expected to act in “a non-partisan way”. He did not manage to deal with my question about the extent to which commissioners might be involved in decisions on penalties. If he does not have an answer now, can he let the Committee know?
Lord Tunnicliffe: I said, although I may have mumbled it, that the commission staff make decisions on penalties, seeking the approval of commissioners as appropriate. That is a very important point and it would be appropriate that I consult further and we will either bring it into the debate on Report or I will write to Members of the Committee.
Lord Tyler: This has been a very useful debate and, at the very least, it will help to inform all those who may take decisions about the new category of commissioners. I should like briefly to respond to some of the points that have been made. First and foremost, like the noble Lord, Lord Henley, I should make it absolutely clear that I and my noble friends very much support the appointment of the new commissioners. That is not our concern. The concerns that we are seeking to express in this amendment, which have been reflected by all sides, are precisely how those commissioners may operate. I shall come back particularly to the point made by the noble Lord, Lord Campbell-Savours.
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We support the clause, but we want to make this change which is significant to the role of the commission. We want to make sure that the change is implemented carefully. I turn to one or two of the points that have been made. I am grateful to the noble Baroness, Lady Gould, who has long experience, and to have support from her is a consolation to an amateur like me. Similarly, I received support from a different perspective from the noble Lord, Lord Norton. I do not regard those who are working for the political system in any capacity, be it for a party or outwith, as being somehow a lesser breed. I do not regard the elected or unelected politicians—the people who get kicked out—as being somehow more experienced; far from it. If I in any way gave the impression that I thought that the people we might seek to have nominated should be party politicians in the traditional sense, I did not intend to. That is not the case at all. Indeed, our new paragraph (a) is intended to reflect the need for people working, perhaps at a grass-roots level, who have never sought election and are not politicians.
I take up the point that the noble Baroness made about open competition. From what the Minister has said, we must be clear that these nominees will not be subjected to the normal process of open competition, because of course the party leaders will in the end be the nominators. At the very least, they will be able to blackball any potential person who could be nominated to this role if they do not think that that is the sort of person who will reflect the objectives, purposes and partisan interests of that party and that party leader. I was glad to have the support of the noble Lord, Lord Borrie, on that.
We must be absolutely open about this. I am sure that the Minister in his response was clear: this is not comparable to the open selection interview criteria that are in place for the other non-party commissioners. The nominated commissioners are a different breed and we have to be clear about that. That is why our amendment and this discussion are relevant and appropriate.
I was also grateful for the support of the noble Lord, Lord Brooke, for at least half of our amendment. However, I take some exception to his reference to “cartel”, which has pejorative overtones. I believe that it is quite good, occasionally, for parties and party leaders to work together. I know that it is traditional at the other end of the building that we should multiply the disagreements; but even there, yesterday, there was agreement between two parties and the Government were defeated on a Liberal Democrat Motion. We should not fool ourselves that it is a bad thing for politicians occasionally to agree. That happens at this end of the building, too. I do not think that it would be a bad thing for party leaders occasionally to sit down and think about the corporate responsibilities of the Electoral Commission and to try to make sure that there is a good balance of representation, not just in terms of party, but in terms of experience. Therefore, I resist the idea that if our new paragraph (b), seeking to get a broader diversity, were to be passed, that somehow would lead to a cartel. All kinds of areas of diversity have to be addressed, as has been made clear in the debate, but I do not think this is pinning a tail
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The noble Lord, Lord Campbell-Savours, raised an important issue to which I should have referred at the outset. The Electoral Commission is not like the Committee on Standards in Public Life, where there are, of course, party-political nominees. There will be occasions when the body acts not only as an investigator, or at least as a supervising investigator, but as a decision-making body on penalties. In such cases, it will not be only the party representative of party A who will be interested in whether or not local party A is penalised in a particular way; but representatives of party B, party C or even party D will have a direct interest in that decision and that penalty.
If there is a major investigation of a whole party, what do we expect the representatives of parties B, C and D to do? The representative of party A may well say, “I am going to set this out because my party is in the dock and is being accused of a major dereliction of duty, an offence under electoral law”, but what about the other three parties? The noble Lord, Lord Campbell-Savours, has raised an important issue about the commission not being like other organisations in which there are party representatives.
Lord Campbell-Savours: My noble friend used the key word “approval”. It may well be that a recommendation comes through, and it is that process of approval about which I am concerned.
On the question of withdrawal, in the expenses discussion that will now take place in the Committee on Standards in Public Life, the political representatives are withdrawing from those proceedings. That might be an indication of the way we should proceed in this case as well.
Lord Tyler: I am grateful to the noble Lord. We do not have that guidance from the Minister. He may feel that it is necessary to give it guidance between now and Report on whether the model is that all four have to withdraw in such circumstances, or the circumstances in which some other arrangement can be made. I share the anxiety of the noble Lord, Lord Campbell-Savours.
The Minister’s response was very helpful and I am grateful. He rightly emphasised, and perhaps I should have done so earlier, the role of the Speaker’s Committee. I hope this debate will inform and assist that committee in considering these issues in future. However, there is room for greater clarity between now and Report. The terms of office issue, which falls under Schedule 1 to the PPERA, need to be looked at again. For example, if an incoming party leader decides that his or her representative inherited from a previous leader is going to be an extremely awkward customer, who has gone native in the Electoral Commission and is now taking a totally dispassionate, non-partisan view when the reverse is what the party leader requires, the easiest way to deal with that is to say to Joe Bloggs or Joan Bloggs, “Look, I have got a good idea. Why don’t you go into the House of Lords?”. That would remove him or her immediately from the commission and then the party leader can put in the favoured trustee to behave
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I do not wish to detain the Grand Committee longer. Important points have been made throughout our debates today which have fully justified our anxiety to take a good look at this issue. It is an important change in both practice and perception for the commission and I hope that Ministers will at least give further thought to the best way to handle it before Report. We, too, will do that—we will look very carefully at what has been said on all sides of the Committee—but, in the mean time, I beg leave to withdraw the amendment.
1.15 pm
Clause 6: Number of Electoral Commissioners
Debate on whether Clause 6 should stand part of the Bill.
Lord Brooke of Sutton Mandeville: I want to intervene briefly. The Minister could regard this as a probing question rather than a probing amendment. I notice that the number of commissioners can be nine or 10. Since that increases the number of appointed commissioners from the present situation, it would be helpful to know the Government’s reason for giving themselves that option for the final figure.
Lord Tunnicliffe: There are several things that we will need to put in a letter, particularly the delicate points that have been raised. We will answer the noble Lord in the same letter.
Clause 7: Political restrictions on Electoral Commissioners and staff
75: Clause 7, page 5, line 30, at end insert—
“(aa) in relation to appointment to a post on the staff of the Commission that is designated by a notice in force under paragraph 11B, the period (immediately preceding the appointment) specified by the notice;”
Lord Tunnicliffe: In moving this amendment, I shall also speak to Amendments 77 and 78. I have a short, non-controversial list of amendments to speak to.
The Political Parties, Elections and Referendums Act 2000 imposes a 10-year restriction on previous political activity for all Electoral Commission staff. Clause 7 of the Political Parties and Elections Bill
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These government amendments are intended to address the concerns raised by the commission and my noble friend Lady Gould that the five-year restriction should be capable of being extended to other senior posts in the commission, or those dealing with politically sensitive responsibilities.
Having heard representations on the subject, we fully acknowledge that there may be a small number of posts in the commission, other than the chief executive, which merit a requirement for a longer restriction on recent political activity than one year. It is right that we strike an appropriate balance between ensuring that the commission is able to employ those who have the necessary skills to enable it to be more effective, without creating any perception of politicising the commission.
The amendment provides flexibility so that the chief executive of the commission can determine the appropriate restricted period for its staff. Some senior posts may merit a longer restriction period, while others will not. Likewise, certain posts, which may not necessarily be classed as senior posts, may indeed involve politically sensitive responsibilities. The chief executive of the commission will be best placed to decide which posts merit a longer restricted period, and what that period should be. That said, we are keen to ensure that the power provided for here does not provide the chief executive with unfettered discretion when it comes to choosing what post should be designated or how long a restriction for a particular post should be.
In light of this, government Amendments 75 and 77 provide the commission's chief executive with the power to designate certain other commission posts as being subject to a restriction period of up to five years. The chief executive may designate a post if he reasonably believes that it is necessary to do so in order to maintain public confidence in the effectiveness of the commission in carrying out its functions. In deciding the length of the restriction period, the chief executive will be required to take into account the level of seniority of the post, and how likely it is that any holder of the post will be required by the post to deal with politically sensitive matters.
These criteria show that we are mindful that the chief executive should use this power responsibly. To that end, we propose a further check on the discretion provided for here, so this amendment also requires the chief executive to consult the Speaker's Committee on the posts that he intends to designate. A duty to consult will mean that any view put forward by the committee in relation to a proposed designation will have to be taken into account, and taken seriously, by the chief executive. We believe that the Speaker’s Committee is an appropriate body to give an independent and objective view on proposed designations, in line with the oversight rule relating to the commission. We considered whether it was appropriate to give the Speaker’s Committee the right of veto over a particular designation. Ultimately, we took the view that the
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The chief executive will be required to give notice to the Speaker's Committee of his intention to designate a particular post, and the relevant period of restriction for that post. The notice has effect from the day it is received by the Speaker's Committee and expires after three years, unless the chief executive issues a cancellation notice or a notice that alters the details contained in the original in the interim. Any notice of cancellation or alteration along these lines is also subject to the duty to consult the Speaker’s Committee before the chief executive can issue the notice in question.
This mechanism strikes a sensible and proportionate balance; empowering the chief executive, as the individual responsible for staffing decisions, to make decisions, while allowing him to take account of the views of the Speaker’s Committee as he sees fit. Amendment 75 states that, in cases where the chief executive has designated a post as subject to a longer restriction period, this will supersede the one-year restriction.
I turn to Amendment 78. Noble Lords will be aware that the Political Parties, Elections and Referendums Act 2000 imposes a 10-year restriction on previous political activity for all Electoral Commission staff. Clause 7 reduces the restriction period from 10 years to five for the chief executive, and to one year for all other staff—I hope as amended by my previous amendment.
The Boundary Committee for England is part of the Electoral Commission. However, the Local Democracy, Economic Development and Construction Bill provides for a separate and independent boundary committee in line with the recommendations of the Committee on Standards in Public Life. The Bill retains a 10-year restriction from previous political activity for boundary committee members and staff once the independent body is set up. This mirrors the existing 10-year restriction for all commission staff.
Government Amendment 78 seeks to exclude all Electoral Commission staff dealing with electoral boundary work from the reduced restrictions in Clause 7, because it is envisaged that most members of staff will transfer to the independent boundary committee, which we expect will be set up in April 2010. The commission estimates that 20 members of staff will transfer to the independent boundary committee. Commission staff perform certain functions relating to boundary work that have been transferred by secondary legislation from the Local Government Commission for England. These functions include the implementation of recommendations for a change in the law made by the boundary committee.
Finally, a small number of staff who currently assist with this work, albeit not on a full-time basis, will not transfer over as part of this process. The changes made by this amendment relate also to these categories of commission staff during the intervening period before the boundary committee is set up.
The reduction in the restricted period, as proposed in Clause 7, would be temporary. Removing staff who work on boundary matters from the effect of Clause 7 of the PPE Bill will ensure that the level of political
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Lord Hodgson of Astley Abbotts: I have Amendment 76 in this grouping. I begin by apologising to the Committee for not having been here for the beginning of today’s proceedings. I am therefore patricianly conscious that I should not try to plough a furrow that has already been ploughed in previous amendments and particularly under Amendment 74 from the noble Lord, Lord Tyler. Some of my foxes have been shot by the Minister in his opening remarks, but I have one or two small foxes still running across the fields, which I should like to pursue if I may.
My amendment is a probing amendment designed to raise the minimum period from one to three years in which staff of the commission may have been involved previously in political activity. The point was made by the Government and by many noble Lords from all sides of the House yesterday and today about the necessity of maintaining public confidence in the performance of the commission. It will be doubly damaging if, at a time of public cynicism, we set out to reform and improve the working of the commission and for reasons unforeseen at this stage fail to do so because it will be a quantitative uplift in public cynicism as a result. We discussed under an earlier amendment the mixture of politicians and people who are politically active as commissioners in an administrative body, and I raised concerns about that during my debate at Second Reading. Obviously, we have seen calls for restraint and a non-partisan view of those who are so selected from political parties.
I want to check one thing in relation to the Government’s Amendment 77—and I think I heard the Minister clearly—in subsection (8) of the new section on the requirement to consult. The Minister seemed to make it clear in his remarks that the ultimate power in this lies with the chairman of the commission, who can discuss the matter with the Speaker’s Committee but in the end, if he decides that the post is politically sensitive, it is his call and there is no gainsaying it.
Lord Tunnicliffe: Did the noble Lord mean to say the chairman of the commission or the chief executive?
Lord Hodgson of Astley Abbotts: I think I mean the chairman, but maybe the chief executive has the final call. Do either of them have the final call? Perhaps the Minister could tell me that.
Lord Tunnicliffe: The final decision lies with the chief executive under the clause.
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