Political Parties and Elections Bill

Public Bill Committee, 11 November 2008.

Nicholas Winterton (Conservative, Macclesfield)

As I normally do, I welcome hon. Members to the Committee, which is considering the Political Parties and Elections Bill. This is the first time that we have sat in the traditional situation of a Public Bill Committee, having previously acted as a Select Committee to take evidence from distinguished witnesses.

Before we begin consideration of the Bill, I have a few preliminary announcements to make. I am always concerned about the comfort of hon. Members. Although conditions might not be quite so typical of this time of year, hon. Members may take off their jackets during Committee sittings, if they so wish. Will all members of the Committee ensure that electronic gadgets, such as mobile phones and pagers, are turned off or switched to silent mode during our proceedings?

I also wish to inform the Committee that, in accordance with Mr. Speaker’s statement last Wednesday on arrangements for today, 11 November, I shall interrupt proceedings at precisely 11 o’clock and invite hon. Members to observe two minutes’ silence.

Several amendments were signed by hon. Members last night, making some of them selectable today. A revised selection list is available in the room, and it sets out the list of amendments that have been selected. Members of the Committee signed some of those amendments late last night, so that list is the one that should be used.

We shall now proceed with clause by clause scrutiny of the Bill. In accordance with the programme motion agreed by the Committee, we will deal first with clause 4 and amendment No. 16, tabled by the hon. Member for Epping Forest, who I am delighted to call to speak.

Clause 4

Eleanor Laing (Conservative, Epping Forest)

I beg to move amendment No. 16, in clause 4, page 3, line 24, at end insert

‘in accordance with Commissioner for Public Appointments’ Code of Practice.’.

I welcome you to the Chair, Sir Nicholas. The Committee looks forward to the pleasure of serving under your chairmanship during what I am sure will be constructive and positive consideration of this important Bill. I wish to say at the outset that, as the clause is about the Electoral Commission, now is an appropriate moment to pay tribute to all the work that Sam Younger has done as its chairman. He is about to retire from that post, and I am sure that, through his sterling work over the past few years, he has gained much respect for the commission.

I welcome most enthusiastically the appointment of Jenny Watson as the new chairman. I gained experience of her excellent work when she was chairman of the Equal Opportunities Commission because, at that time, I was shadow Minister for equality and worked with her. Indeed, Members on both sides of the House have worked with the Equal Opportunities Commission and enormous strides have been taken in that area of policy in recent years. I am sure that, equally, Jenny Watson will bring to the Electoral Commission enthusiasm, ability and respect for her work.

Amendment No. 16 is simple and it would merely clarify the situation. The amendment suggests an addition to clause 4. The clause says that

“each person whose appointment is proposed in the motion has been selected in accordance with a procedure put in place and overseen by the Speaker’s Committee”

and we ought to add after that the words

“in accordance with Commissioner for Public Appointments’ Code of Practice.”

As well as clarifying the current situation, the amendment would entrench it in law, which would be right.

The Electoral Commission has said that it supports the principle of amendment No. 16, which would require the process of appointing all electoral commissioners to be in accordance with the public appointments code of practice. To date, the principles of the code have been observed in all appointments of electoral commissioners, but there is no requirement in law for that code of practice to be observed.

The Bill would be improved and clarified by the amendment. Over the next few weeks of consideration, we shall seek to clarify the Bill in many cases, and this is a simple one. As we discussed in the evidence sessions last week, there are many areas in which the Bill is not clear, and law that is not clear is not good law. We have here a simple example in which matters could be clarified.

Michael Wills (Labour, North Swindon)

I join the hon. Lady in welcoming you to the Chair, Sir Nicholas. In the weeks ahead, I am sure that we shall all benefit from your deft and wise guidance through proceedings on this important Bill.

I also join the hon. Lady in paying tribute to the work of Sam Younger at the Electoral Commission. He had a distinguished career in the BBC, which he followed by making an important contribution to the work of a significant body in our public life. I pay tribute to him as he retires.

Once again I join the hon. Lady, this time in welcoming Jenny Watson to the chair of the commission. I am sure that she will follow her distinguished predecessor in an appropriate manner.

Sadly, after joining the hon. Lady in so much, I must begin proceedings by resisting her amendment, although I welcome the spirit in which she moved it, and our side of the Committee welcomes probing amendments and the opportunity to clarify still further our intentions in the Bill.

The amendment would alter the clause that covers the selection of prospective electoral commissioners and specify that appointments must be in accordance with the Commissioner for Public Appointments code of practice. Each person whose appointment is proposed in a motion for appointment as an electoral commissioner has to be selected in accordance with a procedure put in place and overseen by the Speaker’s Committee. The practical effect of the amendment would be to impose an obligation on the Speaker’s Committee to select electoral commissioners, including nominated commissioners, through open competition, in line with the Office of the Commissioner for Public Appointments guidelines.

Although electoral commissioner appointments are not OCPA regulated, I agree that the process must command public confidence—clearly, we can all agree on that. The individuals selected should be those who have demonstrated that they best match the skills, knowledge, practical experience and personal qualities required for the appointment in question.

Previous electoral commissioners have always been selected on the basis of open competition. We note that the Committee on Standards in Public Life has recommended that commissioners with political backgrounds should, similarly, be selected by open competition, but in respect of these particular commissioners, we believe that party leaders are in the best position to judge those within their parties who would be best placed to assist the commission to become more politically aware. That is why we have included the provisions that will enable the leaders of the qualifying parties to put forward names for consideration as nominated commissioners. From the names put forward, the Speaker’s Committee will select the best candidates on merit.

I hope that the hon. Lady is not suggesting that the leaders of political parties are automatically disqualified, by virtue of their office, from selecting the candidates best suited to fill those appointments.

Eleanor Laing (Conservative, Epping Forest)

No, I am not suggesting that. I agree with the Minister.

Michael Wills (Labour, North Swindon)

I am grateful to the hon. Lady. I also hope she agrees that, in securing public confidence, which I absolutely agree is fundamental to the work of the commission, what is important is not so much how the commissioners are selected, but how they do their job. It is crucial that they do their job without bias or partisanship and in accordance with their remit. I have every confidence in the leaders of all the qualifying political parties in selecting candidates in line with those criteria. I hope that the hon. Lady, having heard the assurances and secured agreement on the fundamental principles, feels able to withdraw the amendment.

David Howarth (Liberal Democrat, Cambridge)

I, too, welcome you to the Chair for this phase of our deliberations, Sir Nicholas, and I join the hon. Lady and the Minister in paying tribute to the work of Sam Younger, who has been an excellent chair of the Electoral Commission. I wish him well in his future choice of career, and also welcome Jenny Watson to this challenging post.

As the hon. Lady said, the Electoral Commission supports the amendment in principle. It is worth bearing it in mind that clause 4 regulates the appointment of all commissioners, not just the political commissioners dealt with under clause 5, and it would be useful to add the provision to the law in general.

The Minister says that there could be a difficulty in how the amendment would apply to the political commissioners; looking at the detail of the code, it might not be entirely appropriate to how that particular set of appointments will work. Nevertheless, when he challenged the hon. Lady on whether party leaders were suitable people to make such appointments, the opposite of his point applied. If they are suitable people, it is not entirely inappropriate that they should in some way be bound by the code.

Michael Wills (Labour, North Swindon)

On a point of clarification, it is not the party leaders who will make the appointments, but the Speaker’s Committee. The party leaders will put forward names for selection by the Speaker’s Committee.

David Howarth (Liberal Democrat, Cambridge)

I am grateful for the Minister’s clarification, but as I understand it the code will apply to the entire process of appointment, which will include nomination by the party leaders. The question still arises as to the extent to which the code is appropriate to be applied to that stage of the process—nomination as opposed to final appointment.

If the Minister accepts the principle that the ideas that lie behind the code—the perfectly simple ones of transparency and open competition—he should be prepared to accept, for a later stage, a different version of the hon. Lady’s amendment. As it stands, the amendment rather baldly uses the term “in accordance” with the code, but if it said “in accordance with the principles of the code”, and perhaps “subject to any necessary adjustments for the purposes of clause 5”, which is about political commissioners, that would still get the essential point across while meeting the hon. Lady’s objective, which is that there should be some statutory mention of the code in the legislation.

I certainly support the principle of the hon. Lady’s amendment, and I urge the Minister to be more forthcoming.

Michael Wills (Labour, North Swindon)

As I hope to demonstrate throughout consideration of the Bill, we are open to suggestions from all parts of the House. I will certainly reflect on some of the points made by the hon. Gentleman, and perhaps I might clarify precisely what he is driving at in conversation after the sitting.

At this stage, I would be anxious about changing my position on the amendment for the reasons that I have outlined. Party leaders have an important role to play for the new type of electoral commissioner, so we are inclined to keep the position as it is. If the hon. Gentleman can find a way to resolve all the different issues together, we shall be happy to listen to suggestions later. However, at the moment, I ask the Committee to reject the amendment.

Eleanor Laing (Conservative, Epping Forest)

I have listened carefully to the Minister’s undertakings, as I have to the agreement and support of the hon. Member for Cambridge, for which I am grateful. We said that the code of practice ought to be observed if not to the letter, then certainly in principle. I understand the Minister’s argument, but I do not see why the amendment cannot be accepted.

We are discussing one of the many areas in which the Bill’s clarity could be so improved, but it is one of the minor areas. Over the next few days, there will be far greater matters in relation to which the Bill’s clarity needs to be improved, so I would rather leave the Committee time to consider the far more difficult issues that we shall face later in our proceedings. I beg to ask leave to withdraw the amendment.

Andrew Tyrie (Conservative, Chichester)

It is a great pleasure to be a member of the Committee under your chairmanship, Sir Nicholas.

I wish to say a word about Sam Younger. He has been a tremendous chairman of the Electoral Commission in difficult circumstances, as the first man in the job. He has worked tirelessly and extremely hard to do his best, and to work together with all political parties. I have worked on an informal group that he created at which he made every effort to listen to the views of political parties. Other members of that informal consultative group, one of whom I see in Committee, have helped the Electoral Commission a good deal.

Sam Younger deserves a great deal of thanks from the entire political community for having steadied what could have easily been a difficult ship. We wish him well in what he does in future, and wish him success, too.

I want to clarify a point and ask the Minister whether I have understood clause 4 correctly. Under subsection (2), the Speaker has to agree that a motion be made, but the rest of the clause is framed in terms of action by the Speaker’s Committee. Will the Minister clarify whether that means in law that the Speaker has a veto over the decisions of the Speaker’s Committee in respect of the clause? Depending on the answer that I receive, I might take this further.

Michael Wills (Labour, North Swindon)

It would help me to understand the hon. Gentleman’s concerns if he said exactly what he meant by “a veto”. The clause states that the Speaker agrees

“that the motion may be made”,

and the motion is the subject of consultation, and so on. If the hon. Gentleman means that the agreement of the Speaker is necessary for the motion to proceed, yes, it does mean that he has a veto—that is my understanding of the clause—but not otherwise.

Andrew Tyrie (Conservative, Chichester)

I am somewhat concerned because, in the past, there have been stories about differences of view on the Speaker’s Committee, members of which—indeed, a majority—have not been in agreement with the Speaker about action that should be taken on supervision of the Electoral Commission. I am concerned lest we find ourselves building into law the potential for further difficulties of that type.

The issues are obviously sensitive, and not ones that I intend to develop further, unless absolutely forced to do so. The Minister will already be aware of some of the instances that I have referred to, or to which I am alluding indirectly, not least those that concerned the reappointment of Sam Younger. It is important that we clarify the issue. Will the Minister look at the drafting and consider whether, on Report, he might frame the clause in terms of the Speaker’s Committee, rather than the Speaker?

Michael Wills (Labour, North Swindon)

I am grateful to the hon. Gentleman for those remarks and, as always with anything he suggests, I shall consider them extremely carefully—I bow to his great experience in such matters. He has given a great deal of thought to the whole area, so anything he suggests we take seriously. However, I am slightly concerned about some of the implications of what he said.

It is inevitable, and in the nature of any Committee, that there will be disagreements. I am not sure what the hon. Gentleman is referring to exactly, but I am not surprised to hear that different members of the Committee, including the Speaker himself, have different views about how to proceed. However, the hon. Gentleman will be well aware that we in the House elect a Speaker to act as Chair of proceedings, and we have to have faith and trust in his judgment. That is why we elect him.

Every day, the Speaker has to make judgments with which not every Member will agree. It seems right and proper that, broadly, he should continue to fulfil that role here. As the hon. Gentleman spoke, I could not, on the face of it, see a better way to proceed. We are always in search of perfection, so if he has a better way I am happy to consider it.

I hope that I have given the hon. Gentleman some reassurance. As he said, these are sensitive and delicate matters, but we must have faith in the office of Speaker and in him doing his job, to which we all elect him.

Clause 5

Eleanor Laing (Conservative, Epping Forest)

I beg to move amendment No. 15, in clause 5, page 3, line 35, after ‘(d)’, insert ‘(i) and (ii)’.

The clause also concerns the appointment of electoral commissioners put forward by political parties. I think that I am correct not to address clause 5 generally, but to limit myself to amendment No. 15.

Nicholas Winterton (Conservative, Macclesfield)

Correct.

Eleanor Laing (Conservative, Epping Forest)

I shall do so, and spare my remarks on the principle of the clause until later. Although it is not obvious on reading, the amendment would amend the clause, which would in turn amend a small part of the Political Parties, Elections and Referendums Act 2000. The effect of the amendment would be to prevent someone who had been named as a donor to a political party within the preceding five years from becoming a commissioner proposed by any party. Set out in section 3 of the 2000 Act—the section to be amended by clause 5, which we are considering—are clearly stated rules about who can and cannot become a politically appointed commissioner. It seems logical that, if somebody has been a donor to a political party within the past five years, they should not hold the office of commissioner.

While supporting amendment No. 15, the Electoral Commission suggested that, if donors to political parties were to be prevented in such a way from being nominated for appointment as a commissioner, such practice should include people who have appeared as lenders on the register of loans to parties. That is an omission. I am sorry that I did not include such a provision in the amendment because, if we are considering the principle of donors, lenders also come within that principle. However, that does not alter the principle of my proposal.

Andrew Turner (Conservative, Isle of Wight)

My hon. Friend makes a point, but has she considered this one? When donations are given by trade unions to political parties, that might not be known by the individuals concerned. For example, the other day, the hon. Member for Birmingham, Yardley (John Hemming) said that he had been recognised as a donor, although he had never knowingly been a donor. What would happen if he were made a commissioner under such circumstances?

Eleanor Laing (Conservative, Epping Forest)

I thank my hon. Friend for raising that important issue. He has illustrated for the first time, but not, I suspect, for the last during our consideration of the Bill, what I shall politely call the grey area around trade union donations to political parties, who the people are who give the money, why they do so and what it means. My hon. Friend rightly suggests that we should consider that. When drafting the amendment, it was too complicated to include donations through trade unions, but that is an area we shall consider in greater detail later in our proceedings.

Tony Lloyd (Labour, Manchester Central)

The hon. Lady has had an interesting exchange with the hon. Member for Isle of Wight. From time to time, trade unions make mistakes, as all organisations do, but she is on to something interesting. She describes this as a grey area for trade unions. What about the very dark, black area of the unincorporated association? How should we decide the remit of the principle that she is trying to establish in relation to those shadowy donors who take part in the Midlands Industrial Council and the various golf clubs, which are major donors to the Conservative party? She is on to a good point and I congratulate her on spotting it.

Eleanor Laing (Conservative, Epping Forest)

I thank the hon. Gentleman for that intervention. We could get into an artistic argument about shades of grey and black. I do not accept that, on one side of the argument, things are grey and that, on the other, they are murky black. There are areas that are not quite clear on all sides of the argument, which is why we have to clarify the Bill. However, we are considering amendment No. 15 and now is not the correct time to consider shades of black or grey in the area to which he referred.

All I am trying to do with the amendment is tighten up the criteria for political appointments. Conservative Members consider that people who have direct political experience will enhance the Electoral Commission.

Nicholas Winterton (Conservative, Macclesfield)

Order. I invite the Committee to stand to observe two minutes’ silence.

Eleanor Laing (Conservative, Epping Forest)

I merely conclude by saying once again that we would like to tighten up and clarify the Bill with the amendment.

David Howarth (Liberal Democrat, Cambridge)

Again, the principle behind the amendment is well worth supporting. As the hon. Lady said, there may be some defects in the drafting, but I would urge the Minister to take on board her points. The objective of the amendment is to remove from the list of permitted political commissioners those who have given donations to political parties, treating them as they would be treated at present. The principle behind the amendment is a good idea, because one of the main functions of the commission is to regulate donors. Although there are times for making sure that those who are regulated are represented on regulatory bodies, with the particular sensitivities surrounding the area of large donations it would not be a good idea, or add to public confidence in the commission, if the electoral commissioners were to have among their number major donors to political parties.

I have some reservations about the detail of what is proposed in the amendment. The hon. Lady referred to lenders not currently being covered in the amendment. There is also the question about the extent of donation that should, in effect, disqualify someone. Minor donations, although registrable, might not be of an extent or scope that would bring the general principle into play. Nevertheless, the principle is worth considering. A slight difficulty with the amendment is that one of its effects would be to make it more likely that a political commissioner would be an activist or a former employee of a political party, as opposed to a volunteer. In general, volunteers are more likely to be donors than party officials or party professionals. That might be seen to be a move in the wrong direction, because we want to encourage voluntary effort in politics. Nevertheless, it is not a knockdown objection to the amendment. In bringing more political experience to bear in the commission, we are trying precisely to bring in the experience of people who have been more on the inside of politics so that the commission gets the benefit of poachers who are being persuaded to turn gamekeepers. Although that is a disadvantage of the amendment, it is not a knockdown objection to it.

I do not want to join in the previous conversation about trade union donations, but I urge hon. Members who are interested in that topic to consider new clause 11. I hope that the Committee will have enough time to discuss that important proposal in detail.

Michael Wills (Labour, North Swindon)

The debate has illustrated the complexity of the issue. I want to help the Committee to find a way through it, and the easiest way to do so is simply to resist the amendment.

James Duddridge (Conservative, Rochford and Southend East)

Elaborate.

Michael Wills (Labour, North Swindon)

I am being invited by the hon. Gentleman to elaborate, and I shall be delighted to do so. As we have discovered, the area is complex. It might help the Committee if I set out our understanding of the effect of the amendment. It seeks to alter the section that disapplies the political restrictions for nominated commissioners. The Committee will be aware that the Bill disapplies for nominated commissioners the restrictions that prevent a person from being appointed as an electoral commissioner if he or she is a member of a registered party or has at any time in the past 10 years been an officer, an employee, held an elected office or been named as a donor in the register of donations. The practical effect of the amendment, as the hon. Lady set out, is to prevent any person who has been named as a donor in the register of donations, reported under chapters III or V of part IV of the 2000 Act, from being appointed as a nominated commissioner. That seems illogical. We cannot see a logical reason to leave such a restriction in place for nominated commissioners, while waiving it in respect of the other restrictions. Nominated commissioners, by definition, will be affiliated to a political party, and we can see no reason, as such, why they should be barred from appointment because of any previous donations they have made to their party or, indeed, any other party.

It is worth pointing out to the Committee that, were the amendment to be accepted, it would have the effect of excluding politicians who had made a declarable donation. Given what I think is broad agreement that it is desirable to have electoral commissioners with political experience, I hope that the Committee accepts that we might potentially be knocking out a whole swathe of otherwise highly qualified candidates for that role. Having reflected on the matter, I hope that it will resist the amendment if the hon. Lady presses it to a Division.

In all such matters, it will of course be for the Speaker’s Committee, a body for which each member of the Committee has the utmost respect, to ensure that there are no likely conflicts of interest before a nominated commissioner is appointed. I have every confidence that they will be able to do the job well.

David Howarth (Liberal Democrat, Cambridge)

What the Minister says about the effect of the amendment is correct. It would exclude practising politicians who are also donors. However, it would not exclude all of them. A big field of candidates would still be left. Laying aside the particular wording of the amendment, does he agree that it would not be a good thing for public confidence in the commission were commissioners even to be proposed who were very major donors to political parties? That would look as though the parties were putting forward people who had given lots of money to the party in circumstances that would not be looked on very favourably by the public.

Michael Wills (Labour, North Swindon)

Of course, I understand the concerns expressed by the hon. Gentleman, but we must be careful how we approach the subject. It is not axiomatically a bad thing for people to make donations to political parties, even very large donations. If people are public spirited and want to give money to a political party of their choice, I do not see anything wrong in that. We all in the House agree on the various considerations—no undue favours sought or undue advancement—and that a donation should be given purely to a political party that best espouses the values that the donor wants to see embodied in our public life. What is crucial is that the donation should be transparent and that no favour or advancement should be secured as a result. That is the crucial principle.

I am slightly anxious about the underlying assumption of what the hon. Gentleman is saying, because this is an important issue. We should not proceed on the basis that everyone who gives a donation to a political party—whichever political party it is—is automatically doing it out of some malign motive. Many donors do it in advancement of their beliefs, ideals and values—that goes for donors of all political parties.

David Howarth (Liberal Democrat, Cambridge)

I agree with the Minister wholeheartedly about donors to political parties giving money in support of their values, rather than to advance their individual positions. Nevertheless, there is a big difference between a small donation—we all want to encourage a situation in which political parties are funded by a large number of small donations, instead of a small number of large donations—and an extensive, large donation in the context of someone receiving a public appointment, which is what we are discussing. The connection is much closer in such circumstances than it is in general.

Michael Wills (Labour, North Swindon)

Again, of course I understand the spirit in which the hon. Gentleman has intervened. None of us wants to see the practice of democratic politics tarnished as it has, sadly, all too often been in the past. We can all agree with that, of course. We have to be extremely careful. Underlying his point—I thought he was going to make a slightly different point—is that it is not just a matter of the facts, but the perception of the facts. If he were to make that point, I would happily agree with him on that too.

We have to look at what process is in place. The process will be transparent and subject to the Speaker’s Committee—in which I hope everyone on our Committee has confidence—which will be in a position to evaluate case by case precisely the concerns that the hon. Gentleman has expressed. It would be rash to try to draw blanket prescriptions; we should leave it to the Speaker’s Committee. I am sure that, in making the appointments, the Committee members will read in Hansard what the hon. Gentleman and I have said and take those concerns into account.

David Howarth (Liberal Democrat, Cambridge)

I might have misunderstood the process underlying clause 4, if not clause 5. When people are nominated by party leaders, will all those names be published, or only the names of the successful candidates?

Michael Wills (Labour, North Swindon)

Sadly, I am not in a position to enlighten the hon. Gentleman on the precision of the clause. I am not sure that the Act is specific about that. I am looking for guidance, in case there is some arcane detail of which I am not aware—if the hon. Gentleman will bear with me. I would not like to mislead the Committee or the hon. Gentleman, whose legal expertise is considerable.

I am reliably informed that it would be a matter for the Speaker’s Committee to decide whether the names should be made public. I am sure that it would take account of the views expressed in this Committee in making its decision. What is important is that we have faith in the process, which is already working well. The Speaker’s Committee is there, there is a process in place and everyone accepts that it is working reasonably well at the moment. I would ask the hon. Gentleman to have faith in that process. All of us, and anyone who serves on the Speaker’s Committee, are as concerned as he is with the issues raised. I hope that that gives him some reassurance.

Andrew Tyrie (Conservative, Chichester)

The Minister says that he hopes that the Speaker’s Committee will take the trouble to read the Hansard that we are creating now. In that spirit, perhaps he could go a little further. I found the argument of the hon. Member for Cambridge wholly convincing and I think that the Minister did, too, but he is slightly stymied just now. He is not quite sure of all the facts necessary to decide which way he should take policy. Perhaps I am mistaken in that.

Michael Wills (Labour, North Swindon)

You are.

Andrew Tyrie (Conservative, Chichester)

I am mistaken in that. Does the Minister agree that there is a donation the size of which will lead to the impression of the possibility of undue influence being exercised as a consequence of that donation, and does he think that that should have some bearing on a Speaker’s Committee decision on whether to appoint someone, particularly with reference to, for example, a former trade union leader whose trade union has made very large donations to the Labour party, or with reference to a very large individual donor to the Liberal party or the Conservative party?

Michael Wills (Labour, North Swindon)

As always, I have followed with great care what the hon. Gentleman said. May I say that I did not “hope” that the Speaker’s Committee would read the Hansard? I have every confidence that it will read the Hansard and take it into careful consideration as it makes its decisions with all the care and deliberation that it usually brings to these matters. The hon. Gentleman was making a rather logical point until he raised the question of leaders of trade unions. With that, he is getting into very different territory. If he thinks about it for a moment, he will see that the leader of a large trade union whose union had made a large donation corporately to the Labour party was in a very different position from the large individual donor. I hope that he will reflect on that before we set any more red herrings going in that area.

Let me address the substance of the hon. Gentleman’s remarks. He was saying—I am sure that he will correct me if I have mistaken his drift—that hypothetically the donation could be so large that it would give rise among the public to a perception that undue influence was being gained as a result of the size of the donation. The hon. Gentleman is nodding. Logically, of course that could be the case. I cannot speculate, but it would be rash to rule out the possibility of such a perception taking root. Of course it would.

Andrew Tyrie (Conservative, Chichester)

So the hon. Member for Cambridge is right.

Michael Wills (Labour, North Swindon)

With all due respect, that does not follow. I should say, for the benefit of the much-quoted Hansard, that the hon. Gentleman, from a sedentary position, suggested that the hon. Member for Cambridge was right. I suggested that that was not a logical conclusion to draw. The hon. Member for Cambridge said that we should draw a line that would automatically exclude large donors, whatever the size of the donation. I said that it would be rash to make that assumption. What I am saying and what I have said before is that we should approach these issues case by case. I have every confidence that the Speaker’s Committee will be able to make those judgments. At some point, we have to have confidence that it will be as concerned as everyone on this Committee that public perceptions of that type should not take root. We know that in this area there is a problem with public perceptions of the probity of our political life. The Bill is designed to address many of those concerns, and the Government will do everything that we can to address all the concerns. We have to have confidence that the Speaker’s Committee shares the concerns and will address them.

Mr. Turnerrose—

Michael Wills (Labour, North Swindon)

I was about to finish, but I am always delighted to give way to the hon. Gentleman.

Andrew Turner (Conservative, Isle of Wight)

I am grateful. Is the Minister allowing for Mr. X to give a gift of £50,000 and find himself operating this new position in relation to the Electoral Commission and for Mr. Y to give £50,000 and not be so occupied? The same amount of money is being given and there is nothing else in public that distinguishes them.

Michael Wills (Labour, North Swindon)

Of course there will be all sorts of specific circumstances, and I do not want to speculate on what they might be. The tax status of a large donor might be brought into play, for example. That is a matter for the Speaker’s Committee. At some point, we have to decide as a Committee whether we want to draw a line—as suggested by the hon. Member for Cambridge—and say, “Above this level of donation, such donors should not be included in the criteria for eligibility as an electoral commissioner.” I am anxious about the exclusion of donors, as a matter of principle. They may well be people of considerable political experience. I am sure that we can all think of examples of large-scale donors who play active roles in the management of their political parties, and who regard themselves as people of great political judgment and experience.

The Speaker’s Committee needs to look at such matters and make a judgment about whether public perception, among other things, would be such as to tarnish that appointment. I am suggesting that matters should be handled on a case-by-case basis. All the evidence suggests that the Speaker’s Committee commands the respect of the House and the wider public, and that it proceeds with due impartiality and without bias. I am not aware of an allegation of partiality or bias on the part of the Speaker’s Committee, and it is a working assumption that it will proceed on that basis. To draw hard and fast rules would be unfair to the majority of donors who contribute donations to all political parties out of public spirit. We should want to encourage them to continue doing so.

Mr. Tyrierose—

Michael Wills (Labour, North Swindon)

I see that the hon. Gentleman wants to speak again.

Nicholas Winterton (Conservative, Macclesfield)

Order. I request that interventions are brief and very much to the point.

Andrew Tyrie (Conservative, Chichester)

I always do my best. The Minister said that he thinks that the Speaker’s Committee commands the respect of the public. The trouble is that the public have no idea about such Committees. They are completely opaque bodies that make decisions anonymously. It is not that they command disrespect, but they do not command public respect. Does the right hon. Gentleman agree?

Does the right hon. Gentleman find it curious that he is opposed to the idea of drawing a line or imposing a cap on the donation that might lead eventually to the ineligibility of someone from one of the appointments, when all three major parties support, in principle, a donations cap in order to restore public confidence more generally in the issue of donations to political parties?

Michael Wills (Labour, North Swindon)

As always, I am grateful to the hon. Gentleman for his succinct contribution to the debate. Of course, most members of the public are not intimately familiar with the workings of the Speaker’s Committee, but we can assume that our democracy is sufficiently transparent that, if there were significant concerns, they would have percolated into the wider sphere. However, we are not very far apart on that point.

There are areas in the Bill and in other such issues where we accept that there should be donation caps. That is a matter of fact, but we are talking about the selection of electoral commissioners who will be expected to bring their experience—not their partisanship—to the exercise. They will be judged, as I said earlier, not by how they are selected, but by how they behave when they are selected. That is the key. If they behave in a partisan way, and the selection process is seen to be flawed as a result, the Government will, of course, consider the matter again.

It behoves us all to keep a careful eye on how all legislation, particularly in this area that is so important to our democracy, works. If it turns out to be flawed, it needs to be changed but, at the moment, we have no evidence that it will turn out so. A lot of evidence suggests that it will work perfectly well and achieve all the goals that the hon. Member for Cambridge and the Committee want to accomplish. I see no member of the Committee rising to speak, so I invite the hon. Member for Epping Forest to withdraw the amendment.

Eleanor Laing (Conservative, Epping Forest)

I am glad that we have debated the amendment because it has brought out some important issues. I share the Minister’s confidence that the Speaker’s Committee will take note of our deliberations this morning. Nobody wants to have to say in a few years’ time, “We told you so.” In a few years’ time, rules may be reversed if matters go wrong. We hope that they do not. I have every confidence in the Speaker’s Committee. We have aired points of concern, and it is important that they should go on the record.

I agreed 100 per cent. with the Minister when he said that people who donate to political parties are acting honourably. They are contributing to democracy in the same way that people who donate to charities are contributing to good causes. The workings of democracy in our country are a good cause. Giving money to political parties is an honourable and respectable thing to do, and should be encouraged. Some of my best friends give donations to political parties. We should be encouraging such donations and not allowing certain elements of the media to denigrate those who donate. My point has been made. This was an interesting probing amendment and, with the leave of the Committee, I beg to ask leave to withdraw it.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following amendments: No. 113, in page 3, line 40, leave out from ‘(1)’ to ‘the’.

No. 114, in page 3, line 41, after ‘party’, insert

‘shall’, and after ‘forward’, insert ‘a person’.

No. 115, in page 4, line 6, leave out ‘three of the’.

No. 116, in page 4, line 7, leave out ‘three largest’ and insert ‘qualifying’.

No. 117, in page 4, line 22, leave out subsection (7).

Pete Wishart (Scottish National Party, Perth and North Perthshire)

It is a pleasure, Sir Nicholas, to serve under your chairmanship in this august Committee, and I look forward to the rest of the sittings that we will share together. The amendments are pretty straightforward and self-explanatory. I seek proper recognition from the Bill and the Electoral Commission that we are now in a multi-legislature, multi-party democracy throughout the United Kingdom. The amendment is about more than just this Parliament. We now have four legislatures in the United Kingdom and five parties in power. We have the majority Government in the House of Commons, the minority Scottish Nationalist party Government in Scotland, and coalitions in Wales and Northern Ireland. All of them have to be served by the Electoral Commission and all of them have to be properly recognised by this Bill. However, the Bill does not do that. It is Westminster-centric as usual and that has been recognised by the written submissions from electoral commissioners among others. If the Bill was just about this House, it would be absolutely fine. We have seven Members out of a total of 659. All the minority parties put together number some 28 Members of this House. To get one commissioner out of that number is very fair and generous; it is a very good deal. However, we are not in that situation.

David Kidney (Labour, Stafford)

Are there not 646 Members of the House of Commons?

Pete Wishart (Scottish National Party, Perth and North Perthshire)

The hon. Gentleman is probably right. I apologise for my ignorance. Numbers have never been my strong point, as hon. Members will probably recognise in the course of these proceedings. Nevertheless, the point is still the same. We would be very fortunate to get one commissioner for this one House of Commons, but this is about more than that. It is about all the legislatures throughout the United Kingdom, in which case, it is totally unsatisfactory.

Let us look at the situation in Scotland. The Electoral Commission has a responsibility for Scotland. In Scotland, the SNP is not a minority party. We are the largest party in Scotland by votes and by seats, and we are the Government in Scotland. To have the Government in Scotland effectively excluded from electoral regulations for Scottish elections is absurd and bizarre and clearly not fair. How can that be right? It would be like saying to this House, “We can have an Electoral Commission and a proper regulation of elections, but let us exclude the Labour party.” That would be totally unacceptable, just as it is for the Scottish National party to be excluded from electoral regulation for the Scottish Parliament.

Let us look at what is happening in Scotland just now. Over the past few months, there has been a polarisation of support between the Labour party and the Scottish National party. Those are the two largest parties in Scotland. Two smaller parties make a significant political representation to the Scottish Parliament—the Liberals and the Conservatives. The Liberals lost their deposit in the last two by-elections and secured less than 3 per cent. of the vote. The Conservatives held on to one of their deposits by the skin of their teeth. They are no longer becoming small parties in Scotland, they are becoming fringe parties. However, those two fringe parties will have a seat on the Electoral Commission and will make regulations concerning elections to the Scottish Parliament, when the party of government will not. How can that be fair and right? That point must be addressed, and I am looking forward to the Minister’s response on how it will be achieved.

How will the fourth commissioner be decided? All registered parties in this House with two or more Members are seemingly to nominate two representatives each. They will go to the Speaker’s Committee, which will decide. The hon. Member for Chichester asked whether the public know who is on the Speaker’s Committee. As a Member of Parliament, I have no idea who is on it. I know who the Speaker is and that he will look after Back-Bench Members of political parties in the House, but I have no idea who is on the Committee other than Mr. Speaker himself. I presume that there will not be a minority party Member on the Speaker’s Committee—I would put any amount of money on it—so what will it know about those parties when it makes a decision?

I suggest that the Speaker’s Committee will look at the largest minority party and decide to give it the job. The largest minority party in the House is the Democratic Unionist party, which has nine Members. Second largest is the Scottish National party with seven Members, the Social Democratic and Labour party has three and Plaid Cymru has three. If the Speaker’s Committee decides to give the job to the largest minority party, we would have the ridiculous situation of the Democratic Unionist party in the Electoral Commission looking after the interests of the Scottish National party.

Andrew Turner (Conservative, Isle of Wight)

I do not remember exactly what was said, but why would it be wrong for the Democratic Unionists to look after Scottish National party affairs, but right for the Scottish Nationalists to look after Democratic Unionist party affairs?

Pete Wishart (Scottish National Party, Perth and North Perthshire)

I am grateful to the hon. Gentleman for that intervention. I will explain clearly why there is a difficulty for the Scottish National party. No other party in the House of Commons would be less appropriate to look after the Scottish National party than the DUP. We are a party of independence. We are a nationalist party. We want our nation to become a normal, independent nation like any other in the world. The Democratic Unionist party is probably the most Unionist party in the House, yet it would sit on the Electoral Commission looking after the interests of the most nationalist party.

Several hon. Membersrose—

Nicholas Winterton (Conservative, Macclesfield)

Order. One at a time.

Eleanor Laing (Conservative, Epping Forest)

I thank the hon. Gentleman for giving way. Can he clarify whether he believes that the democratic process itself, which is what the Electoral Commission and its commissioners is there to protect and enhance, is different for a nationalist party, a right-wing party, a left-wing party or a middle-of-the road, sitting-on-the-fence party? The democratic process is the democratic process. It really does not matter which part of the political spectrum someone belongs to. What matters is that democracy works and it is therefore totally irrelevant for these purposes which political party a person belongs to.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

Here is my challenge to the hon. Lady. How about the Conservative party giving up its place on the Electoral Commission and giving it to the Labour party. Would she be happy with that? I suggest not, yet she expects the Scottish National party to have no representation on the commission and to be looked after by a political party that operates contrary to its political interests. Would the hon. Lady give up her seat to the Labour party?

Eleanor Laing (Conservative, Epping Forest)

I am certainly not saying that we would wish to do such a thing in the way that the hon. Gentleman suggests. However, if four very senior and well respected people were nominated as commissioners, and if none were a member of the Conservative party, the commission would not work any the worse. We are looking for political commissioners with experience of the democratic and electoral process, not particular party views. Political experience matters far more. I hold some people in the Labour party, the Liberal Democrats and even the Scottish National party in greater respect than I do some people in the Conservative party.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

I, too, would be very interested to hear names.

I am grateful for the hon. Lady’s intervention—or should I say speech?—and I noted that her colleagues looked with wry interest when she said that she would be prepared to give up the Conservative nomination to the Electoral Commission to somebody from another party. In light of that kind suggestion, we could suggest somebody from the Scottish National party to fill her party’s nomination.

I am glad, however, that the hon. Lady has opened up this debate. If the four commissioners are to be truly non-political and non-partisan, I would be happy, but given some of the noes that I am hearing from Conservative colleagues, that might not be the case. I suggest that nominations for the party political commissioners will be truly and wholly party political.

My amendments would deal with that matter fairly and squarely by ensuring that any registered political party with more than two Members in this House would have a political commissioner on the commission. In one blow, that would deal with all the outstanding issues. Every significant party in all United Kingdom legislatures would be represented on the commission. The Scottish National party, the SDLP and the Democratic Unionist party would, therefore, have a say on the commission about electoral regulation within their own legislatures and Parliaments. Surely that is fair and transparent.

The Minister will tell me that that would mean a majority of political commissioners on the Electoral Commission, which I accept. However, I would prefer that to excluding certain parties. If that solution is not accepted by the Committee, I would suggest that we have no political commissioners at all, which again would be preferable to excluding some parties, which would mean that some legislatures are demoted and would lose an interest in the commission.

Two options are on the table: to ensure that all political parties with a significant political presence in all United Kingdom legislatures are properly represented on the Electoral Commission or none at all. The suggestion in the Bill is the worst of all worlds. Regardless of what the hon. Lady might say about the nomination process, the three big parties have their nominated appointee on the commission, and one will remain for all the minority parties. I have no idea how that will be decided. It will be left to the Speaker’s Committee, but I do not even know who is on that Committee and I have no idea how it will decide who that fourth commissioner will go to. I suspect that it will automatically select the largest minority party—the DUP—which would be unacceptable to the SNP, just as an SNP commissioner would presumably be unacceptable to the DUP.

No process is in place for sorting that out. It is a total mess. I ask the Minister to consider sincerely my genuine plea to resolve this problem. I want him to recognise that we are in a multi-legislature United Kingdom. How will he address this problem? Is it acceptable that the Governments of Scotland, Northern Ireland, and perhaps a coalition in Wales, do not have a place at the top table of the Electoral Commission? I look forward to the Minister’s remarks.

Eleanor Laing (Conservative, Epping Forest)

I am pleased that the hon. Gentleman has tabled the amendments because it allows us to discuss this important issue. There are three reasons why we on the Conservative Benches oppose his amendments. First, it is totally impractical to have the number of commissioners that would be required if his amendment became part of the Bill. An important principle about the commissioners with political experience is that they should be in a minority on the Commission.

In an interesting evidence session we had last week, Sir Hayden Phillips responded to the hon. Gentleman by describing the characteristics of a successful regulator. He also said:

“I think that this will help the Electoral Commission, and will help political parties to feel more comfortable with the Electoral Commission. Those four people will be in a minority, and will never be a majority.”——[Official Report, Political Parties and Elections Public Bill Committee, 4 November 2008; c. 34, Q83.]

The Committee accepted that it is an important principle that the four politically appointed commissioners are in a minority on the Commission. If that number is changed to accommodate all parties with some representation in the House, as the hon. Gentleman suggests, the number of political commissioners would rise to perhaps eight or, sometimes, nine. If there were to be a minority on the Commission, there would have to be 20 or more commissioners, which we all know would not work. A committee that is too large becomes unwieldy and cannot do the work that it sets out to do. Therefore, on practical grounds, the number four is right and we support the Government on that point. It is simply impractical to say that that number should be increased.

The hon. Gentleman forgets two important points. The first is that commissioners with direct political experience are to be appointed in order to bring their wisdom and experience of democracy, elections and the political process to the Commission. The commissioners are not there to represent the views of particular political parties and it is therefore quite wrong to say that, in being appointed, their political allegiance would be their most important characteristic. I challenge the vocabulary used by the hon. Gentleman when he says that a certain person might be appointed who would be

“looking after the interests of the Scottish National party”.

A commissioner should not be there to look after the interests of a particular party or group; the role of the commissioner is to oversee the democratic process itself. The idea behind having four commissioners from different areas of the political spectrum is simply to balance that out and it is quite right to do so. To suggest that a particular person, who would have been appointed for his or her seniority, wisdom or experience, would represent the interests of any political party is quite wrong.

There should, of course, be someone who has experience of government, someone who has experience of opposition and someone who has had experience of neither for over a century. There should also be someone who has experience of a minority party. The experience of a minority party is as a minority party, rather than of a particular party with a particular political ethos or principle. That is really important, so I vehemently oppose what the hon. Gentleman is proposing in the amendments.

Finally, and almost more important than anything else, the hon. Gentleman forgets that the devolved legislatures in the United Kingdom derive their power and authority from Parliament—the Westminster Parliament. Therefore, his argument that the provisions are Westminster-centric is wrong and not at all well founded. The fact that the devolved legislatures derive their power from Parliament means that it is Parliament that should make decisions such as today’s. It is absolutely correct for this Parliament and this Committee, representing Parliament, to decide on four, well balanced electoral commissioners with political experience.

David Howarth (Liberal Democrat, Cambridge)

The hon. Member for Perth and North Perthshire has brought up a serious difficulty in the Bill. We need to take it seriously and think what the solutions might be. His solution is not the right one, and his list of possible solutions is not exhaustive, but the problem is a real one. This country now has multiple legislatures. Parliament is still sovereign and supreme, but in reality we are seeing the development of different political systems in Scotland and Wales, and there has always—for a long time—been a different political system in Northern Ireland. We need to take into account those developments in deciding what to do about electoral law. Not only is the party system in Scotland different, but the electoral systems are different as well, not just for the Scottish Parliament, but also for Scottish local government—the same system as is generally used in Northern Ireland, but not in England, although it should be.

The problem with what the hon. Gentleman put forward as his solution to this new situation is that it is too United Kingdom-centric. He is trying to solve the problem within the scope of United Kingdom institutions. I do not think that that can be done, at least in the way that he has proposed. The hon. Member for Epping Forest is quite right that what the hon. Gentleman is putting forward is a system—he pointed this out himself, in his speech—that would lead to a majority of political commissioners. For all the reasons that the hon. Lady and the Electoral Commission itself mentioned, that is an unacceptable solution.

If we look at the detail of what the hon. Gentleman put forward, he is removing the choice of commissioners from any other body—the parties would directly nominate one person, and that person would then become a commissioner. The hon. Lady is right that that is not the view of a commissioner that the Bill proposes. The Bill’s view is of the commissioner as a person who, to use the European jargon, knows a particular political party best but nevertheless acts as a commissioner in the interests of the commission as a whole, and who is not there as a representative of a particular party. The hon. Gentleman’s amendments would change that and make the commissioners the representatives of parties.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

May I ask the hon. Gentleman the same question that I put to the hon. Member for Epping Forest? If the political nominations to the commission are apolitical, would the hon. Gentleman be happy for the Liberals to waive their right to nominate a political commissioner and give it to another party in the House?

David Howarth (Liberal Democrat, Cambridge)

I do not think that it is a matter of being political or apolitical—by definition, they are political commissioners—but they are not there to act as delegates of the party or at the party’s insistence. They are there in a similar way to European Commissioners, who are selected on the basis that they know a particularly country best and that their experience reflects where they come from. They are not there to vote for the interests of a particular party or country.

The question that arises is what to do about the problem, given that the solution that has been put forward is not acceptable. The solution of not having political commissioners would not be acceptable either, because at the heart of the clause is the importance of having a good dose of practical political experience on the commission and ensuring that it does not act in an ivory-tower way. That seems to exhaust the hon. Gentleman’s suggestions—either his solution or no political commissioners, and that is it. I do not think that that is it. He has raised an issue of greater importance: the degree to which we devolve electoral law.

Party funding is a UK-level question, because as we heard in an evidence session, parties are constantly campaigning and raising money for a range of different elections, from local elections to devolved Parliament elections, UK elections and European elections. It is not really possible to separate the money being raised for those different campaigns and elections, because the same money is raised for the entire range of elections. The regulation of donations and party funding is therefore a UK-level matter, but that is not the case with electoral administration. It is different in the different parts of the UK, precisely because the electoral systems are so different. We should seriously consider further devolution in that area.

There is already devolution on boundaries. There is a separate Boundary Commission for the Scottish Parliament and for local government in Scotland. Although it would be complicated and difficult to introduce into this part of the Bill properly devolved institutions for electoral administration, that is where the solution to the problem lies.

Eleanor Laing (Conservative, Epping Forest)

Is it not the case that the Electoral Commission conducted a thorough and well respected inquiry into the conduct of the last Scottish parliamentary elections and that, as it is presently constituted, it was perfectly competent in doing so and produced an excellent report?

David Howarth (Liberal Democrat, Cambridge)

I would not demur from the hon. Lady’s view of the report’s content, but I am talking about how to solve the institutional political problem that the hon. Gentleman has rightly brought to our attention. We have to solve it at the level of institutions, not by altering the detail of the Electoral Commission appointments provisions in the Bill.

Michael Wills (Labour, North Swindon)

We have had a fascinating debate, and I am grateful to the hon. Member for Perth and North Perthshire for raising the matter. I shall start by saying straight away that of course I recognise that we are in a multi-party, multi-legislature UK. This Government brought in devolution, and we are extremely proud of it. It has made for a much more vibrant and healthy democracy within the context of a United Kingdom. I am sure that he finds that final phrase unpalatable, but there it is. We are proud of devolution, and he is absolutely right that his party plays an important part in the new, vibrant democracy. I thank him for recognising that only the Labour party can now speak for the whole UK. That is generous of him, and we acknowledge it.

May I throw some light on something that has baffled many members of the Committee, including the hon. Member for Chichester, and let the entire Committee know what the Speaker’s Committee consists of? It consists, with one exception, of hon. Members. They are the hon. Members for Gosport (Sir Peter Viggers) and for North Down (Lady Hermon), my right hon. Friend the Secretary of State for Justice and Lord Chancellor, my right hon. Friend the Minister for Local Government—he is there ex officio, as I believe is the Lord Chancellor—the hon. Member for Woking (Mr. Malins), the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), my right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman) and the hon. Member for South-West Devon (Mr. Streeter). I am sure that the Committee would agree that that is a most distinguished gathering of parliamentarians, who can be trusted to do their job with great distinction and impartiality.

We have had an interesting debate. I have to say, I agree with almost every single word that the hon. Member for Epping Forest said. At the heart of this issue lies an important debate about the future of the United Kingdom, although I am sure you will forbid me from straying too far into that territory, Sir Nicholas. I am sure that there will be many occasions on which we shall return to that subject, but we shall not discuss it at length today.

I want to stress a couple of things before I address the detail of the amendment. First, as the hon. Member for Epping Forest said quite clearly, at the heart of the proposition made by the hon. Member for Perth and North Perthshire is the idea that somehow the so-called political commissioners—we prefer the term nominated commissioners—will act as partisans on behalf of their party.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

It is the same question that I have put to all the political parties here: if the Minister is satisfied that that is the case, will the Labour party therefore waive its right to have a political commissioner, and perhaps open it up to other parties in the House?

Michael Wills (Labour, North Swindon)

The hon. Gentleman is an eloquent and skilled debater. I had anticipated him asking me that question, and I shall answer it in a moment if he will bear with me. It is a good question, but there is a good answer too. The short answer is no, however I will provide a more detailed explanation in just a moment, if I may.

The point that I was making is that underlying the hon. Gentleman’s amendment is the proposition that nominated commissioners will act in a politically partisan way, and therefore it is unfair that they should be excluded. That is absolutely not the case. I see him shaking his head.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

I did not say that at all.

Michael Wills (Labour, North Swindon)

That seems to be the underlying assumption, and that therefore it is fair that the hon. Gentleman’s party and other parties that are in a minority at Westminster should have due representation on the commission. However, as the hon. Member for Epping Forest said extremely clearly, nominated commissioners should be selected on the basis of their experience. That is the basis on which they will be selected and on which we expect them to discharge their duties—not in a politically partisan way.

On the point about why the parties that have the largest representation at Westminster should have the position that they have in the Bill, the answer follows on from the point that I just made. That is precisely why we would not be prepared to relinquish our particular position to other parties. The three largest parties at Westminster have—I hope that the hon. Gentleman will agree, because it is a matter of fact not opinion—the widest pool of political experience throughout the United Kingdom on which to draw, including experience of all the different electoral systems, as the hon. Member for Cambridge said.

The answer is not what the hon. Member for Perth and North Perthshire is suggesting, which is to segment and fracture the overall view, so that there are specialists in this particular area and this particular electoral system. I may be caricaturing what he was trying to suggest, but that would be the logical consequence of his contribution to the debate. What is important is that we have a wide pool of experience upon which to draw. The three largest parties at Westminster pre-eminently have that wide experience of all the regions of the United Kingdom and all the different electoral systems. They can bring that collective experience to bear on all the issues that the Electoral Commission has to address.

There is a fundamental difference of view on this issue. It is not that the provision is Westminster-centric and the wrong perspective to adopt; it is the only proper position to adopt in a United Kingdom. The hon. Member for Epping Forest set this out well: the source and foundation of power and authority in this country remains in the Westminster Parliament, because that is the Parliament for the entire United Kingdom. Of course, the devolved Administrations and legislatures have an important part to play. They have brought great vibrancy to our democracy and we are proud of what we have done to make that happen, but the power is still devolved from Westminster and so the Bill is in the form that it is.

There has been little discussion of the detail of the amendment, so I want to address that. The hon. Member for Perth and North Perthshire will not be surprised by what I am about to say, but, if he will forgive me, I will say it anyway for the record.

Amendments Nos. 112 and 113 would remove the requirement to have a maximum of four political commissioners and, in our view, thwart the purpose of the clause, which is to enhance the credibility and effectiveness of the commission, both to those it regulates and to the general public.

Although clause 6 places the minimum and maximum number of commissioners at five and 10 respectively, by not limiting the number of nominated commissioners permitted it could, in theory, lead to those nominated commissioners being in a majority on the board. I think that all members of the Committee would agree that that would seriously undermine the independence of the commission—both its actual and its perceived independence.

Limiting the number of nominated commissioners to four means that they will always be in the minority, although they will still be able to bring to the commission the political experience it needs—the events of the last few years show that that experience is needed—to create greater confidence among those it regulates.

Amendment No. 114 would compel parties to make nominations to the Speaker’s Committee. Under the Bill as drafted, parties will be free to make nominations to the Speaker’s Committee if they choose to do so. The amendment would mean qualifying parties being obliged to put forward to the commission a person to be considered for appointment. We think that that is unreasonable and therefore cannot support it.

Amendments Nos. 115, 116 and 117 would remove the need for three of the commissioners to be from the largest parties in the United Kingdom Parliament and the means for calculating parties’ relative size for that purpose. As I have said, we believe that it is the right balance to have commissioners from those parties in order to command the widest range of political experience. That is a difficult judgment. We must make a judgment about how to do it, and this is the judgment that we have made, for the reasons that we have said. I accept that the hon. Gentleman has a perfectly logical position, from his perspective, in suggesting alternative arrangements; it is just that we do not agree with them.

We believe that, to get that pool of political experience, it is right that three of the commissioners should come from the three largest parties and that the fourth commissioner should come from another qualified party. The recruitment and selection process for all commissioners will remain a matter for the Speaker’s Committee. Again, I am sure that it will look at the contributions made to the debate on these amendments and take into account what the hon. Gentleman has said, and indeed what the hon. Member for Cambridge has said.

These are important questions and they will be a subject for legitimate debate in the future. Constitutional arrangements are never set in stone. They evolve and develop, and this process is part of their evolution and development. I am sure that we will continue to return to these issues. In the meantime, however, I hope that the hon. Member for Perth and North Perthshire will agree, in the light of all the circumstances, to withdraw the amendment.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

I appreciate all Members taking part in what has been an interesting and illuminating debate on the issues involved in how we start to deal with the multiplicity of legislatures that we have throughout the United Kingdom. I also appreciate the Minister’s attempt to look at those issues a little more clearly and perhaps to come back with solutions. I am also grateful to the hon. Member for Cambridge, who has again spoken about the need perhaps to devolve further the powers of the Electoral Commission, which is a realistic way forward that we might address in the future.

However, the suggestion that nominations for political commissioners will somehow exist almost in a vacuum—without the parties that nominate those people—is preposterous and ridiculous. That is why, other than the hon. Member for Epping Forest, who, much to the chagrin of her colleagues, has been the only member of the Committee to say that we need to be prepared to put the political nomination aside—

Eleanor Laing (Conservative, Epping Forest)

I really must clarify this point, or I might not remain on the Committee much longer. [Laughter.] I will probably be forcibly removed. I did not say that the Conservative party ought not to put forward someone or that the place ought to be given up. I was merely illustrating, for the purposes of our argument, the fact that a person’s wisdom and experience do not depend on his or her party allegiance.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

I am grateful to the hon. Lady for clarifying that. She sought to say that she would be happy to waive the right to a Conservative nomination, but she now brings that into line with the thoughts of everybody else in Committee, which I suspected anyway. I always presumed that no political party would be prepared to give up its right to nominate political commissioners, which confirms my strong suspicions that party political interests are at play here. To pretend otherwise is like living in cloud cuckoo land. Of course party political interests are at play, otherwise there would not be party political commissioners.

Michael Wills (Labour, North Swindon)

I am slightly surprised by the hon. Gentleman’s cynicism. Given the passionate idealism that he normally brings to the exposition of his cause, this really is a very cynical view. If he reflects on a wide range of analogous bodies in our public life, on which people with wide political experience serve, he will see that those politicians from all political parties serve the party interest without party bias, and have done so for many years and will continue to do so. I hope that he withdraws his remarks.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

Call me an old cynic, Sir Nicholas. I accept what the Minister says. I know that people who are nominated from political parties do a fantastic job in a number of bodies throughout the United Kingdom, but it is naïve to suggest that there is not a small element of party political interest—there must be. No political party would be prepared to give up its right to nominate a political commissioner. We still do not have a solution for what we do with minority parties. We still have not addressed how the Electoral Commission will turn its attention to dealing with the devolved Assemblies and Parliaments across the United Kingdom.

Amendment No. 111 would clarify and support what the Minister says. It proposes to limit the rights of political commissioners to become involved in some of the work of the Commission.

Nicholas Winterton (Conservative, Macclesfield)

Order. We will consider amendment No. 111 at a later stage, so it is not appropriate to raise the matter now.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

Thank you, Sir Nicholas.

Michael Wills (Labour, North Swindon)

I hesitate to return to this point, but it is so fundamentally important. The hon. Gentleman is proceeding on a completely wrong assumption. The Electoral Commission regulates the electoral system itself. It is in the interests of every single democratic political party in this country that the integrity of that electoral system is paramount. That is the self-interest of every nominated commissioner on the board, nothing else. It does not matter what values we espouse, what policies we want to put into effect or whether we are in Scotland or in the United Kingdom Parliament, the integrity of the electoral system is of fundamental importance to every single one of us. Every single one of us shares the same self-interest in the transparency, incorruptibility and integrity of that system. I hope the hon. Gentleman will shift the base of his argument away from how he has been proceeding until now.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

I am grateful to the Minister for his intervention and I agree with practically every word he says, but may I say to him, in all candidness, that there will be a whiff of suspicion about the work of the Electoral Commission when it comes to the Scottish elections? On the Electoral Commission, there will be nominated political commissioners from the Conservative, Liberal and Labour parties for the regulation of electoral law in elections to the Scottish Parliament, but there will be no representative from the largest political party in Scotland, which forms the Scottish Government.

The Minister may go on and on about the fine group of people who have our best interests at heart, but, for ever and a day, there will be a whiff of suspicion that something is not quite right. All the other political parties will get to nominate a political commissioner, but the party of government in Scotland will not. That cannot be right. I cannot accept that that is the way forward for Scotland.

We are coming to amendment No. 111, which will, I hope, clarify the role of political commissioners. That is the opportunity for people to say what the political commissioners can do. I beg to ask leave to withdraw the amendment.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss amendment No. 108, in clause 5, 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.’.

Eleanor Laing (Conservative, Epping Forest)

When evidence was being given to the Committee last week, it became clear that a situation could arise in which a political party might fail to nominate possible commissioners. The amendment would require the leader of a political party to make that nomination, as the Bill suggests, although does not require, that they do.

In amendment No. 108, the hon. Member for Cambridge has spotted the same problem and has come up with a good and different solution. If, for some reason, a political party failed or decided not to nominate a commissioner, that could create a vacuum. The Bill will not work efficiently if political parties do not co-operate.

Although it is reasonable for the Government to assume that political parties and their leaders will co-operate, that assumption cannot be relied on. Suppose those party leaders, or the minority parties, decided not to co-operate for some reason. What if the hon. Member for Perth and North Perthshire stirred up the minority parties to take a stance and not to nominate? That is possible—it would be a reasonable way to make a political point. The Bill will work less efficiently if those nominations are not made, and therefore they should be required by the Bill. That is the purpose of the amendment.

David Howarth (Liberal Democrat, Cambridge)

As the hon. Lady says, the issue first came to the attention of the Committee last Thursday when it was raised by the Electoral Commission. I suspect that our efforts to meet that point might not yet be technically perfect, but since the Programming Sub-Committee gave us only a few hours in which to write the amendments, this is the best we could come up with.

The essential issue is precisely that mentioned by the hon. Lady. The Electoral Commission asked what would happen if a political party refused to make the nominations to which it is entitled under the Bill. There could be a range of answers. One solution could be for the party to lose its commissioner, who would not be replaced by anyone else. Another solution might be that another party, which stood above the party in question in terms of the number of seats, would get to nominate an extra commissioner, but that would raise questions about which party would be so entitled.

I have made a simple suggestion to the Government about how the situation might be dealt with. It does not deal with every possibility, just some of them. The amendment would mean that should one of the main three parties refuse to nominate any commissioners, its right to nominate would go to the next largest party. As the hon. Member for Perth and North Perthshire noted, that would currently be the DUP, but under other circumstances it could be a different party. We must come to a solution on the issue—perhaps not at this stage of the proceedings, but later. The Government must respond to what the Electoral Commission has said.

Speaking to amendment No. 105, the hon. Member for Epping Forest implied that amendment No. 108 is an alternative to her suggestion. In fact, they are complementary. My amendment would not do something that is important in the first place, which is write into the Bill an obligation on the main parties to make nominations. That is a defect in my amendment, but the defect in her amendment is that she does not say what would happen if those parties failed to fulfil the obligation that she is rightly seeking to create. My suggestion is that the Government take away both amendments, consider their joint effect and, if they do not like the drafting—we had only a few hours to draft them—return on Report with something that deals with the problem.

Michael Wills (Labour, North Swindon)

These are interesting amendments that would deal with circumstances that are unlikely to occur. However, we should take the opportunity to clarify some of the issues, and I am happy to do so.

Under amendment No. 105, as the hon. Member for Epping Forest said, the heads of the three largest qualifying parties would be required to nominate two or more persons for appointment as a commissioner. The clause as drafted will not impose a requirement, because that would be over-prescriptive. The hon. Lady suggested that the hon. Member for Perth and North Perthshire might at some point want to make a political point by not nominating, which is absolutely the case, but it would be wrong of the Government to stop political parties making political points. That is a matter for other political parties.

In the generous democratic spirit in which we generally operate, we would not want to close off that option for other parties, so we believe that it is best to leave the clause as it is. I hope that, on reflection, the hon. Lady will be tempted to withdraw the amendment.

Eleanor Laing (Conservative, Epping Forest)

I thank the Minister for that perfectly reasonable explanation. Just for clarity, how many nominations does he imagine or predict that there will be? Is it likely that there will be eight nominations, and therefore four people could be chosen from them, or if one party did not nominate, would there be six and four could be chosen from the six? I am sorry: this sounds a bit muddled because I am, to an extent.

I am genuinely asking for clarification of the practicality of the process, because I might agree with the Minister.

Michael Wills (Labour, North Swindon)

I hope that the position will become clearer when I address amendment No. 108, which has been tabled by the hon. Member for Cambridge. If it does not, I shall be happy to give way to allow the hon. Lady to put her question to me again.

As the hon. Member for Cambridge pointed out, amendment No. 108 would amend proposed new section 3A(4) to provide that if one of the three largest parties did not exercise its option to nominate, the next largest party at the time would be entitled to have one of its nominees appointed as a commissioner, so long as it had made at least two nominations.

The effect of clause 5 is clear. If one of the three largest parties in Parliament, calculated by reference to proposed new section 3A(7), does not nominate two candidates for appointment as a nominated commissioner, it will not be one of the three largest “nominating parties” and therefore will not be entitled to have a person whom its registered leader has put forward appointed to the commission. In those circumstances, the registered leader of the fourth largest party in Parliament will be entitled to have one of their nominees appointed, so long as they have nominated two candidates for appointment. Therefore, the amendment would just restate what is already the effect of clause 5.

The hon. Lady asked about the number of nominations. There will be two nominations per qualifying party so that if one party, by its own choice, ceases to be a qualifying party, there will in effect be six nominations for three places with at least one from smaller parties, if they choose to nominate.

I stress that we are dealing with what are likely to be extremely hypothetical circumstances. There is general support for the principle that there should be nominated commissioners who bring political experience to the Electoral Commission—that is a direct read-across from the recommendation of the Committee on Standards in Public Life. The hon. Lady has demonstrated her support for the principle, and we would expect her party to nominate. We would expect all parties to contribute to what is a fundamental pillar of our democratic system. Unless someone wanted to make a political point, which would be regrettable in the circumstances, we would expect there to be sufficient nominations for the process to continue.

David Howarth (Liberal Democrat, Cambridge)

I thank the Minister for his explanation, which is a possible description of how the Bill currently reads. His explanation works by treating a nominating party as a party that has gone through the process of nominating. It is slightly circular, but it is certainly a possibility. The problem is that even the Electoral Commission does not understand the Bill to mean that. Surely, at the very least, the Government should be thinking about tabling a clarifying amendment on Report.

Michael Wills (Labour, North Swindon)

In the spirit of earnest intellectual co-operation, I draw the hon. Gentleman’s attention to clause 5(4), which states:

“In subsection (3) ‘nominating party’ means a party whose registered leader—

(a) has put forward two or more persons to be considered for appointment as a nominated Commissioner, or...previously put forward”.

I would be grateful if he explained the confusion and said why matters are not clear to him, although I know that none of us can answer for the Electoral Commission’s confusion on this matter, or indeed any other.

David Howarth (Liberal Democrat, Cambridge)

That is a possible interpretation, but the problem is that we will be able to tell whether a party is a nominating party only when it has actually done it. That is a confusing way to draft anything.

Michael Wills (Labour, North Swindon)

With all respect for the hon. Gentleman’s point, he says that I have given a possible interpretation. Will he help me to understand his point by giving me another possible explanation of the clause? I will be happy to deal with his concerns if I can understand them a bit better.

David Howarth (Liberal Democrat, Cambridge)

I do not want to be too technical, but let us suppose that a party previously nominated two names for commissioner in the first round of nominations. The person nominated by the party then resigns, dies or retires, at which time the party refuses to nominate a second time around. However, it then qualifies as a nominating party because it put forward two or more persons for consideration on the previous occasion. Thought has to be given ahead to the next round of appointments to see where the confusion might be.

Michael Wills (Labour, North Swindon)

I am still confused. I draw the hon. Gentleman’s attention to clause 5(4)(b), which includes the words

“previously put forward persons one of whom was appointed as a nominated Commissioner”.

At that point, we are in the same hypothetical example as he has just given. The provision continues with the words

“and is expected to continue to hold office.”

With all respect to him, someone who is dead cannot reasonably be expected to continue to hold office.

David Howarth (Liberal Democrat, Cambridge)

The problem with that interpretation is that the linking word between subsections (4)(a) and (4)(b) is “or”, not “and”. If it were “and”, the Minister would be right, but he is not right. We are reaching the point at which I might ask permission to press the amendment to a Division.

Michael Wills (Labour, North Swindon)

I am well aware of the hon. Gentleman’s distinguished academic provenance in the law, and I am happy to talk to parliamentary counsel about the matter to see whether we can deal with it. I am also happy for him to press the amendment to a Division, but I draw his attention to the fact that we think that the provision is clear. If the view of parliamentary counsel is that it can be made clearer, of course we will be happy to act accordingly and table an amendment in due course. I undertake to seek the advice of parliamentary counsel, who will, of course, have the benefit of his advice.

David Howarth (Liberal Democrat, Cambridge)

I am grateful to the Minister for that final concession. I am conscious of the fact that if a vote were to be called at this point, the amendment might well be carried. However, I am not confident enough of my drafting, which was done in a few hours last Thursday, to call a vote on whether to put the clause in the Bill.

Andrew Tyrie (Conservative, Chichester)

Might the hon. Gentleman not consider calling a vote and getting the measure in the Bill? If his drafting is not quite perfect, the Government will be forced to sort the matter out on Report. Otherwise, we have no guarantee that we will ever sort this out.

David Howarth (Liberal Democrat, Cambridge)

Yes, that is a strong point. I am totally convinced on it, so I think I should ask for a vote to be called.

Michael Wills (Labour, North Swindon)

The hon. Gentleman is normally extremely courteous, but I point out that I have given an undertaking to the Committee that if parliamentary counsel think the matter can be clarified, it will be clarified.

We do not think there is any drafting defect. Obviously a vote is the essence of democracy and I would not for a moment resist that, but I have given an undertaking to the Committee, and by saying that we have no guarantee that this will ever be sorted out, the hon. Gentleman is slightly taking issue with what I have said. I hope he did not intend to cast doubt on the assurance I have given the Committee. I would be grateful to have his confirmation of that put on the record.

David Howarth (Liberal Democrat, Cambridge)

I think that we should have a vote on the matter.

Nicholas Winterton (Conservative, Macclesfield)

I have to tell the Committee that I am waiting for the hon. Member for Epping Forest to reply to the debate. If the hon. Member for Cambridge is indicating that he would like the Chair to grant a Division on his amendment, I am certainly prepared to do so. Of course, we could therefore have two Divisions. If the hon. Lady wishes to press her amendment No. 105, she has the right to do so and that would be the lead Division in this case.

Eleanor Laing (Conservative, Epping Forest)

Much as I would be inclined to press amendment No. 105 to a Division, I have to admit that because of the timetabling of the Committee—I am sure, Sir Nicholas, that you will recall the exchange we had about starred amendments at the beginning of Thursday’s sitting—the problem came to light only when the electoral commissioner mentioned it when we took evidence on Thursday afternoon, as the hon. Member for Cambridge rightly said.

Practically speaking, I had not hours but minutes to draft amendment No. 105. It is important to bring this matter to the attention of the Committee so that it can be debated, as indeed we have just done. As I have already said, and as I am sure my hon. Friends and I will say many more times in considering the Bill, many areas are not clear. Law that is not clear is bad law. All we want to do is clarify the matter.

I accept entirely what the Minister says about it being unlikely that the circumstances we envisage might arise. Of course, I also accept—in the honourable way in which it was meant—that the Minister has undertaken to look at the issue and bring it back to the House for consideration on Report. That is important for the sake of clarity. However, I had only a few minutes to draft amendment No. 105 and I admit that the hon. Member for Cambridge is a better academic lawyer than I am. [Interruption.] I thank my hon. Friends for that vote of confidence.

The hon. Gentleman’s amendment No. 108 is rather more meaningful than my amendment No. 105, so I intend to seek the Committee’s leave to withdraw my amendment, leaving amendment No. 108 for consideration.

Michael Wills (Labour, North Swindon)

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.

Nicholas Winterton (Conservative, Macclesfield)

I allowed a fairly lengthy intervention there so that the Minister could clarify the Government’s position.

Eleanor Laing (Conservative, Epping Forest)

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.

Michael Wills (Labour, North Swindon)

To guide us.

Eleanor Laing (Conservative, Epping Forest)

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.

Nicholas Winterton (Conservative, Macclesfield)

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 (Scottish National Party, Perth and North Perthshire)

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.

Eleanor Laing (Conservative, Epping Forest)

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 (Liberal Democrat, Cambridge)

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.

Michael Wills (Labour, North Swindon)

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.

Jonathan Djanogly (Conservative, Huntingdon)

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.

Michael Wills (Labour, North Swindon)

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 (Liberal Democrat, Cambridge)

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.

Michael Wills (Labour, North Swindon)

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 (Liberal Democrat, Cambridge)

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.

Michael Wills (Labour, North Swindon)

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.

Eleanor Laing (Conservative, Epping Forest)

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.

Michael Wills (Labour, North Swindon)

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.

Jonathan Djanogly (Conservative, Huntingdon)

This is an important point. A month ago the new provisions of the Companies Act 2006 dealing with conflicts of interest for directors came into force. The Minister may wish to look at them, because conceptually, in corporate governance terms, until then it was a matter for the board to make up its own mind, as he is saying. Company law has now changed that attitude, and a procedure is now laid down for dealing with conflicts, which is based on a mixture of shareholders, the board and the articles. In corporate law, we have moved away from the position that the Minister is advocating in the Bill. He may want to look at how corporate life has moved on, because it has implications for the Bill. We may not end up with exactly the provisions that have been suggested, but there are procedures that should be put in place.

Michael Wills (Labour, North Swindon)

I am grateful to the hon. Gentleman for his constructive and helpful suggestion and, of course, we must always be prepared to learn from other experience, but, with all due respect, this is a different area of public life. We cannot, as a Government or a Committee, seek to micromanage the judgments of the commission on often very complicated, difficult and important issues, and we do not want to. Setting out a process for doing that, particularly in relation to the amendment excluding commissioners, trying to decide whether we have the whole commission for this or only part of it for that and creating a two-tier structure would be counter-productive for the reasons that I have stated. I hope that the Committee will resist the amendment if it is pressed.

Pete Wishart (Scottish National Party, Perth and North Perthshire)

The Minister has been pretty convincing this morning, but he is on less steady ground in response to this amendment, and I say that with great respect. We have to have it out there and accept that there are two classes of commissioner: the standard commissioners of the Electoral Commission and politically appointed commissioners. We cannot get away from it—there are two different types and two different standards. To pretend otherwise is naive on the Minister’s behalf. The commission itself raised doubts about that.

We always have to remember that when something is reported on and when conclusions are made, it is passed to the police. Those cases and circumstances may become police investigations, so the charge of political bias will be open to legal challenge. I am a former musician, not a lawyer like some of the distinguished people here, but anything that could be open to a legal challenge on that basis cannot be a good thing and has to be dealt with. The Minister’s response has not convinced me. In very difficult situations and circumstances, political commissioners taking a view on enforcement issues with other political colleagues is not the way forward. I have great concerns and I shall press the amendment.

Michael Wills (Labour, North Swindon)

To be clear about the position, theoretically it is, of course, possible that those nominated commissioners may have to recuse themselves. I am not ruling it out or saying that they have to be present at all points in all discussions on sensitive issues. That is not the case. There may be such eventualities—I cannot speculate on what they might be now—but it would be wrong to rule out the theoretical possibility that they may all have to recuse themselves for the sort of reasons that the hon. Gentleman advanced. However, do we want to constrain the operation of the commission in the way that he suggests, given that that may have precisely the opposite effect to what the Committee, as a whole, wants to achieve with the Bill with the inclusion of the nominated commissioners?

Pete Wishart (Scottish National Party, Perth and North Perthshire)

That is a helpful intervention, but I would prefer something that gives that protection and guarantee in the Bill. I shall press the amendment to the vote.

Clause 7

David Howarth (Liberal Democrat, Cambridge)

The Electoral Commission has raised a point on clause 7 that members of the Committee have not really been in a position to put forward in an amendment, but on which I would like the Government to put their position on the record. Is it a good idea to reduce from 10 years to five years the period of restrictions on political activities for non-political commissioners? The Electoral Commission’s view seems to be that, although it is not particularly in favour of political commissioners, if there are to be political commissioners, there must be a very clear distinction between the political and non-political ones. I would like the Government to put on record their reply to the Electoral Commission’s point.

Michael Wills (Labour, North Swindon)

I beg the Committee’s pardon. I am afraid that I was leafing through my folder while the hon. Gentleman was making his point. Will he be very patient with me and repeat it?

David Howarth (Liberal Democrat, Cambridge)

It is simply the Electoral Commission’s point about clause 7(1). Political activities for the non-political commissioners are currently defined as being activities

“within the last ten years”,

which the clause would change to

“within the last five years”.

The commission has expressed some doubt about that. As I understand it, it wishes to make a clear distinction between the non-political and political commissioners, as long as political commissioners are to take part in its work.

Michael Wills (Labour, North Swindon)

The changes that we are making are in line with the views of the Committee on Standards in Public Life that the current 10-year—

Nicholas Winterton (Conservative, Macclesfield)

Order. I advise Members that they can leave their papers in the Committee room with total safety, as it will be locked until we come back at 4.30 pm, when, I have to confess, my co-Chairman will be in the Chair. The Minister will have time to consider the question put, and I know that the hon. Member for Epping Forest will catch the Chairman’s eye.

Michael Wills (Labour, North Swindon)

I welcome you to the Chair, Mr. Cook. I am sure that we will benefit from your guidance as we make further progress on this important Bill.

I was responding to the hon. Member for Cambridge, who had referred to the briefing note put out by the Electoral Commission on the relaxation of the political restrictions on commissioners. He was asking, in the spirit of inquiry more than anything else, why we had not followed the commission’s advice.

The Government are aware of what the commission feels about the matter, but I am afraid that our view is different. We take the view of the Committee on Standards in Public Life that continuing with the current 10-year rule for staff is not proportionate or necessary to ensure the impartiality and independence of staff employed by the commission or, more broadly, the commission itself. Obviously, there must be some restrictions. We think that 10 years is too long but five years is about right. It is a matter judgment, and that is our judgment.

Eleanor Laing (Conservative, Epping Forest)

I do not wish to take up much of the Committee’s time on this matter, as we dealt with most of the principles of political involvement of commissioners when we considered amendments to the preceding clauses this morning. I simply want to put on the record that I agree with what the Minister just said. It is right that there should be restrictions, and we must make a distinction between those on the commission who are representatives of the political world and those who are not. I think that that distinction is clearly made in the clause, which we support.

Andrew Tyrie (Conservative, Chichester)

I have had a chance to remind myself of the content of clause 7—I did not get enough time to do that during the four minutes of debate on it before lunch—and I have realised that there is some substance to the clause that needs an airing and deserves attention before we move on to further clauses. I am grateful to the hon. Member for Cambridge for flagging this up rather than taking the clause on the nod.

The clause is important because it creates two classes of commissioner for the first time, and we need to pause a moment to ensure that we have them right. We need to bear it in mind that the purpose of the clause is to bring some political experience into the commission, which many have argued has not shown enough political experience of the system that it is trying to regulate. This is why, after much careful thought, the Committee on Standards in Public Life decided to argue in favour of a relaxation of the 10-year bar on political involvement. Its recommendation is set out in paragraph 3.29 on page 59 of its report. My question is whether what is in clause 7 is consonant with what is in that recommendation.

I am a little concerned that we may find that nearly one half of the appointed commissioners have recent political experience, as set out in the clause; and that under this clause the other group—in the past, it would have had no ties with a political party for 10 years—might also have been MPs only five years ago, hammering things out in a Committee such as this, for example, or across the Floor of the House. In other words, we may find ourselves with a group of commissioners all of whom have a good deal of very recent political experience.

I am not entirely sure that I am happy with that, so I am not entirely sure that I am happy with the move from 10 to five years for the remaining class—that is, the original class—of commissioners. I would like the Minister to give an explanation for that reduction from 10 to five years. I have a couple more points that I would like to make while he is thinking about that one, unless he wants to intervene on me now; if not, we can wait until I have dealt with the other points.

Another point concerns the staff, whom we have not mentioned at all. Clause 7(2) proposes that the 10-year bar that applies at present be reduced to five years for the chief executive and to one year for all other staff. That is also a substantial change when taken together with the change for commissioners. I wonder whether we ought to consider—I throw this thought to the Minister—extending the five-year minimum to several other important jobs, rather than just limiting it to the chief executive of the Electoral Commission.

I have been a participant in the informal group whose job it was to try to fill the gap that the Electoral Commission realised existed when it wanted more political experience to be made available to it. That group has been functioning for many years. As a member of it, I was initially sceptical about the need for this clause at all, and wondered whether the issue could be better addressed, for example, by putting that group on a formal basis, with the authority to publish views of dissent if it disagreed with actions of the Electoral Commission, which itself would be a constraint. If a group of politicians, all from different parties, said all at once that they disagreed with something and that the commission was going down the wrong route, that might act as a restraint on the commission.

This issue was the subject of the Hayden Phillips process. I participated in that process, as the Minister knows, and I participated in all the talks about this issue. It was largely decided in the margins of the Hayden Phillips discussion to go down this route as it was probably the least bad option, recognising that there are pros and cons for whichever route one takes. I am now a convert to the idea of a reduction, and I will not divide the Committee on this point. However, I would be grateful for the Minister’s response to a number of concerns. First, when we consider the changes that we are making to staff as well as to the commissioners themselves, we are making a substantial change all in one go. Secondly, is the reduction from 10 years to five for commissioners necessarily right for the reduction for the non-political group? Thirdly, is the reduction from five years to one for all staff except for the chief executive the best way forward?

Michael Wills (Labour, North Swindon)

As always, the hon. Gentleman makes some valuable points and broadly speaking, they reflect the views of the Electoral Commission. Of course we are aware of those views and we have taken them into account. The hon. Gentleman said, using carefully chosen words, that he was not altogether sure that this way was the right way. Let me try to give him greater certainty, so that he can go forward into the afternoon in comfort and relaxation.

There is no difference in principle between us on the fact that there needs to be some form of sanitising period; I think that that is consensual. That is why we have maintained the existence of that sanitising period. The only question is how long that period should be. We have taken the view that to maintain the current restrictions is disproportionate and restrictive on individuals’ right to participate and perhaps to bring their interests to bear in this form of public life. There needs to be a sanitising period. Some of the recommendations have come from the Committee on Standards in Public Life. The hon. Gentleman is right to say that the decision to reduce the restrictions on other commissioners from 10 years to five was taken by the Ministry of Justice. Therefore, by and large, we have imported the view of the Committee on Standards in Public Life, except in that one respect.

I want to offer to the hon. Gentleman an anecdotal reassurance and then a reassurance in principle about the approach that we have taken. The anecdotal experience is that, by and large, being politically active is an addiction and an obsession. We all know how all-consuming political activity can be. By and large, when people decide, for whatever reason, to detoxify and leave the pursuit of politics, they tend to stay clean. After a break of five years or one, they do not tend to decide to seek election and parliamentary office. They have either had their fill of it and they move on, or they have never had their fill of it and never move on. Therefore, if people take a break, they move on from that partisan participation. That is the anecdotal reassurance.

Much more importantly, we must not lose sight of the fact—we come back to this point over and over again—that everyone we are talking about will be selected on merit. Those selecting them, whoever they may be, will clearly be conscious of the need to avoid any perceived or actual conflicts of interest. That is fundamental. All the concerns that the hon. Gentleman expressed are fundamentally important, but all the commissioners will be selected on grounds of merit, and with that will come the fundamental objective of avoiding any conflicts of interest, real or perceived. I hope that that gives the hon. Gentleman some reassurance about the approach that we have taken. It is a matter of judgment. This is the judgment that we have made and we think it adequate.

Clause 1

Jonathan Djanogly (Conservative, Huntingdon)

I beg to move amendment No. 79, in clause 1, page 1, line 7, after ‘the’, insert ‘sole’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss amendment

No. 38, in clause 1, page 1, line 16, at end add—

‘(4) In the 2000 Act section 13 (which makes provision about the promotion of the electoral and democratic system by the Electoral Commission) is repealed.’.

Jonathan Djanogly (Conservative, Huntingdon)

We move to clause 1, which deals with the functions of the Electoral Commission. In fact, we are moving back to clause 1. There is always something about moving backwards in Bills. I should like to put it on record that we have found it difficult to prepare comprehensively for these clauses. They are the most technical clauses in the Bill, and it would have been helpful to have had more time. As a result, amendments have been rushed with little or no time for consultation. That includes the Government amendments that we received on Friday. Although it is good to have seen the amendments—and I thank the Minister for having put some of them through—we have not been able to consult on them for obvious reasons. Frankly, that is not the best way to make law. I hope that lessons will be learned from the experience that we have had in this Committee, although that is unlikely to be the case.

Andrew Tyrie (Conservative, Chichester)

I am particularly perturbed that we have not had time to prepare for this Bill. The language has always been consensual. We will do this by working together. I cannot understand the mad rush. We are talking about not just legislation, but constitutional legislation at that. I wonder whether my hon. Friend wants to comment on that.

Jonathan Djanogly (Conservative, Huntingdon)

Given that, one way or another, whether here or in the other place, the Bill is invariably going to stretch into the next Session, I agree with my hon. Friend about the rush. However, that is the situation that we face.

Let me move on to amendments Nos. 79 and 38. We generally support the aim of clause 1 and believe that it should be a tool for change. There is a need to refocus the commission on its core duties as a regulator. That is generally recognised by pretty much everyone, not least by the commission itself. The question is, how are we going to do that? Given the known weakness of the commission in its various functions, does the Bill go far enough in redefining those functions? The Bill gives the commission lots of new investigatory powers, for instance, but will it actually use them in the exercise of its functions, given the limited redefinition in the Bill? Do the functions need further focus than has been provided?

Let us examine the redefinition. Clause 1 will delete the original wording of section 145(1) of PPERA, which states:

“The Commission shall have the general function of monitoring compliance”

and replace it with the slightly more proactive wording:

“shall have the function of monitoring, and taking such steps as they consider appropriate with a view to securing, compliance”.

That emphasis on the proactive role of the commission is to be encouraged, as the bulk of the reports to date have recommended a need for it to act more courageously and to shrug off what some have seen as a passive attitude. In essence, clause 1 provides that in addition to its existing function of monitoring compliance with the various requirements, the commission shall also have the function of taking such steps as it considers appropriate to secure compliance with those requirements.

The aim of amendment No. 79 is to tighten the wording of the clause, to insert the word “sole” before describing the function of the Electoral Commission. The aim is that first, we will not be back here again in six years, with all the associated costs, to review the scope of the commission’s duties because it has been able to take the path of least difficulty and resume a passive role and, secondly, to aid the commission and give it a clearer indication of what Parliament thinks its role should be. It may take time for the commission to readjust to its new role, so I propose a clear statutory signposting so that it can have the courage of its convictions to fulfil its mentoring and enforcement role, without the need to consider the wider issues for the electoral system. I hope that the commission and the Government see this is an enabling remit for the commission, rather than a restricting one.

Amendment No. 38 seeks to clarify the position. Given that the Bill seeks to refocus the commission’s core duties on to its role as a regulatory body, we need to do away with a particular section in PPERA as it will, in effect, become all but redundant. To leave it on the statute books will serve no function other than to confuse the commission and those studying the legislation.

Section 13 of PPERA places a duty on the commission to promote awareness of the electoral and democratic systems. As my hon. Friend for Chichester so rightly pointed out in his submission to the Committee on Standards in Public Life review, this is not a matter for the commission; rather it is a matter for political parties. The amendment is designed to tie up the loose ends so that there is no room for future confusion.

Last night the Electoral Commission commented on this issue, and it is worth putting its position on the record. It said:

“The Commission does not support amendment 38 which would remove our duty to promote public awareness of electoral systems and related matters. There is a strong case for ensuring that people get clear and reliable information about how to register to vote, and how to take part in elections, and for this information to be provided by the independent Electoral Commission.

Although the Committee on Standards in Public Life (CSPL), in its eleventh report, recommended that the Commission should no longer retain a wider statutory duty to encourage participation in the democratic process, it also recommended that the Commission should ‘retain a clearly defined statutory duty for the provision of public information on the mechanics of the electoral process including electoral registration procedures, how to vote and explaining any changes to the electoral system.’

The Commission no longer encourages participation in the broader sense discussed by the CSPL. We agree with the Government’s response to the CSPL on the point that ‘informing the public on the mechanics of the electoral system, including the registration process, is key to maintaining a strong democracy and we agree that the Electoral Commission should continue to fulfil this role.’”

While I can understand the Electoral Commission’s position, it leads to a wider issue, namely: where is the line going to be drawn on what constitutes strict provision of public information, and how much of its time should be spent on undertaking that? Given the well recorded poor record of the Electoral Commission on that aspect, the Bill should be more specific. That is why I head back towards the measures contained in my amendments.

David Howarth (Liberal Democrat, Cambridge)

I have some sympathy with the overall aim of the amendments, although rather less sympathy with the precise terms in which they are drafted. The overall aim will be recognised by anyone who has had much to do with the Electoral Commission over the past few years, and is that of producing a commission that is more focused on its core tasks—the monitoring and regulation of political parties and the administration of elections. It has not been all that successful at its more general role of promoting democracy and participation and, on the whole, that has drawn attention and resources away from its core tasks.

The problem with the amendments is what they would do, and that is a separate question which we should consider in detail. As the hon. Member for Huntingdon explained, amendment No. 79 would insert the word “sole” into the legislation. However, he seems to have forgotten what it would insert that word into—section 145 of PPERA. After the words in clause 1, that section refers immediately to

“the restrictions and other requirements imposed by or by virtue of Parts III to VII.”

In other words, it misses out the requirements in parts I and II of PPERA, which unfortunately are rather important. The hon. Gentleman’s amendment would rule out a role for the commission in those two areas. Part I includes provisions on a supervised role regarding boundaries in England, and part II is about the registration of political parties. The hon. Gentleman’s amendment would leave us without any body responsible for the registration of political parties; I cannot support it.

There is more to amendment No. 38 than there is to amendment No. 79, but there is a difficulty. In its response, the commission said that it still wants to have the power to give information about how the electoral system works. That is the proper function of the commission and is part of the administration of elections. When there are different electoral systems—the European Parliament system, for example—the commission has a role in ensuring that the explanation for the system offered to voters is not only clear but fair, and that it is not biased in the direction of a particular party or group of parties. I agree that that role should remain, but that does not mean that the commission should also retain its broader position, which has had the effect of taking away focus from its core role.

As it now stands, section 13(1)(a) of PPERA details the commission’s role in explaining the electoral system, and is worthy of retention. However, according to section 13(1)(b), the commission is supposed to promote awareness of

“current systems of local government and national government in the United Kingdom and any pending such systems”,

while section 13(1)(c) states that the commission should promote public awareness of

“the institutions of the European Union”.

It seems to me surprising that the commission should have such a role.

Although I am sympathetic to the overall aim of the hon. Gentleman’s amendment and support its effect in those parts, overall it goes slightly too far. Nevertheless, I would be interested to hear the Minister’s response to the issues I have raised.

Michael Wills (Labour, North Swindon)

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.

Andrew Tyrie (Conservative, Chichester)

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?

Frank Cook (Labour, Stockton North)

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?

Michael Wills (Labour, North Swindon)

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.

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.

Jonathan Djanogly (Conservative, Huntingdon)

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.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I beg to move amendment No. 2, in clause 1, page 1, line 10, leave out ‘may’ and insert ‘shall’.

Frank Cook (Labour, Stockton North)

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 (Labour, Carmarthen West and South Pembrokeshire)

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.

Jonathan Djanogly (Conservative, Huntingdon)

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 (Liberal Democrat, Cambridge)

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”.

Michael Wills (Labour, North Swindon)

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.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

I am still a little puzzled. The Minister and the Electoral Commission tell us that they are producing the guidance, so why is the requirement so onerous? If it is producing the guidance, it does not seem to be too onerous for it to do so. We being told that putting “shall” instead of “may” and creating a duty would somehow be asking far too much, and would take up far too much time. Will my right hon. Friend explain that?

Michael Wills (Labour, North Swindon)

As I was saying, the requirements of the Act to which the measure would apply are complex and various. The guidance being produced is a matter for the commission, and it is doing what it feels is appropriate. Placing a duty on it to provide guidance on every aspect of the Act would be a different matter and would be more onerous. I hope that that answer reassures my hon. Friend.

The hon. Member for Huntingdon asked whether we have consulted the Electoral Commission. The answer is yes; we consult it frequently and will continue to do so.

Jonathan Djanogly (Conservative, Huntingdon)

On resources?

Michael Wills (Labour, North Swindon)

There has not been any formal communication with the commission about resource requirements, but we discuss all those issues with it, and will continue to do so. I hope that I have given enough reassurance for the amendments to be withdrawn.

Nick Ainger (Labour, Carmarthen West and South Pembrokeshire)

As I have indicated to my right hon. Friend, I am still a little puzzled. The good news is that the commission is producing guidance; that is absolutely essential. We might have to return to this issue, but I shall not press the amendment.

Jonathan Djanogly (Conservative, Huntingdon)

Parliament is putting in place some pretty material changes here, not least in relation to the commission’s functions. The Minister has just called them complex and various, but I do not see the sense of urgency from him that this matter deserves. Electoral law has consistently fallen into abeyance in the past because of a lack of focus. That is not fair on our party workers, who will need the guidance urgently, and that is why I shall ask the Committee to divide on the amendment.

Jonathan Djanogly (Conservative, Huntingdon)

Political party funding and the organising of elections have been controversial in this country for centuries. One has only to look at a series of reports going back over the years to see that those perennial problems have presented challenges to the electoral system and political parties alike throughout history. To the extent that society changes over time, so do its expectations for electoral and funding probity, and changes then follow. However, the problem has become far more acute under the present Government.

As I said on Second Reading, this is a half-hearted Bill, which is characterised more by what is missing than by our wholesale objections to its content. We are missing an opportunity to rectify the damage and add legitimacy back into the system. We are not the only ones to think that way. A key finding of the Joseph Rowntree Reform Trust was:

“Public confidence in the electoral process in the UK was the lowest in Western Europe in 1997.”

An effective electoral system and its administration must be the foundation of our democracy. For a democracy, we need elections. Those elections cannot be free and fair unless the rules governing them are fair and coherent, and those rules must be administered properly and, if necessary, enforced actively. Party funding regulations are just as important.

Given recent experience, we agree that the regulatory framework needs strengthening. The principle, set out in clause 1, that the commission is now required to both monitor and regulate compliance has long been promoted by the Conservative party, although we will need to tie down exactly what that means. We hope that it will result in the commission doing less of what it should not be doing, such as spending millions of pounds on increasing voter turnout. That is our job as politicians, not the job of the commission. As such, we in the Conservative party cautiously accept in principle some of the proposed additions to the investigatory and sanctioning powers of the Electoral Commission, although we will want to examine more closely how they will work in practice, as we will be concerned to ensure that they do not destroy donors’ willingness to participate.

Part I of PPERA contains 21 sections and two schedules that created the commission and set out its general functions. The commission was established as a corporate body independent of any Department. Sections 5 to 13 provided it with a broad range of functions primarily in relation to the oversight of electoral matters in the UK. Its aim, in essence, is to ensure the integrity of and public confidence in the democratic process.

However, the mandate set by the Government in the legislation was unintentionally broad and ultimately far wider than originally envisaged. The commission sees its function as ranging from the regulation of political donations and expenditure by political parties through to the promotion of greater participation in the democratic process and responsibility for electoral policy review. That is a very extensive remit for a body that, according to the figures on its website, has only six commissioners, one chief executive, an executive team and an employee force of fewer than 200 people.

After the enactment of PPERA, several years passed before the problems associated with the breadth of the remit became apparent. The commission itself, in a report that it published on PPERA in 2003, queried the extent of its role and whether it had sufficient powers to ensure that there was compliance with the Act. By the start of 2007, the problem had become so acute that it was hampering the commission in its work.

The 11th report by the Committee on Standards in Public Life, entitled “Review of the Electoral Commission”, was published in January 2007 and attracted considerable press coverage. While commending the work of the commission to date, it noted rather alarmingly:

“Evidence received by the Committee strongly suggested that it has been less successful in acting as an effective and strategic regulator in a manner which ensures public trust and confidence. The root of this, from the evidence we have received, appears to lie in the Commission’s interpretation of its regulatory mandate in PPERA and, in consequence, its overly passive role.”

That criticism of a too-passive approach to its role as regulator has dogged the commission in recent years. Peter Wardle said in evidence to the CSPL:

“The legislation very much puts the onus on the parties to comply and some of the information that we need, which can trigger our investigations, does not come into our possession until such time as the parties do that under the legislation.”

For a regulatory body whose total net operating costs have exceeded £22 million for both 2006-07 and 2007-08, that is a rather depressing perspective on its role as a regulator.

Of more concern, perhaps, was that the Government seemed to support that passive role when only 18 months ago Lord Falconer stated in evidence for the same CSPL report:

“The Electoral Commission’s role, as set out by PPERA, was not to investigate. It was simply to be a recipient of information. They were in a sense exactly the same as the Register of Companies (Companies House).”

The CSPL expressed considerable surprise at the time at those comments. Will the Minister address that issue and tell us why there has been a change of approach from the Government, as welcome as it is? It is important that that is placed on the record.

The explanatory notes to the Bill indicate that the commission has estimated that the additional costs arising as a result of the changes to its powers and sanctions will amount to about £650,000 per annum. Could we please hear from the Minister how likely it is that it will be able to meet those costs from its existing budget? Details on the budget would be helpful.

Of more concern is that, once again, the Government are swinging wildly between opposing sides of the argument: from a placid commission to a full-throttled regulator with all the powers needed to enter people’s homes. I do not say that as an indication of a likely approach that I have received notice of from the commission. Rather, it is an observation of the potential held in the wording of the Bill. A lack of balance runs throughout the Bill, and I will return to it in coming debates as I attempt to highlight some of the Bill’s inconsistencies.

Our concerns focus on the tendency of the commission to travel the path of least resistance and sometimes spread itself so widely on less vital issues that it has been left wanting when faced with larger problems. I would like to take this opportunity to quote from the submission of my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) to the CSPL in June 2006. It adds considerable weight to what I am saying. He stated:

“We have concerns that the Commission may have attempted to do too much, such that it has spread itself too thinly and failed to deliver on inflated expectations of what an ‘independent electoral watchdog’ should achieve. This problem of ‘mission creep’ is not unique to the Commission and has affected other public sector agencies...Although the Commission has a statutory function to review and issue reports on matters relating to elections, it has produced an excessive flurry of investigations into every single aspect of the electoral system. We are concerned that the Commission may have adopted the institutional mindset of ‘change for change’s sake’.”

I will give one more short excerpt. My hon. Friend continues:

“We would suggest that the Commission has interpreted its remit to believe that elections must be ‘modernised’ as an end in itself. RPA2000, PPERA, and successive legislation, have created an institutional instability in the electoral system.”

My hon. Friend’s comments are just as relevant today.

“In a classic example of public choice theory in action, these reviews have resulted in the conclusion that the Commission should have a bigger budget and more power. ‘The need for the Commission to take on new functions has been pressed on us...We recognise that now a central electoral body exists, there is an inevitable logic in locating certain central functions with the Commission.’ Mirroring this trend of constantly seeking to expand its role, the Commission’s expenditure has spiralled from £7 million in 2001-02 to £26 million in 2006-07.”

That has been a common feature of the commission’s performance to date. It bemoans its lack of powers, yet only 29 people have been prosecuted for crimes under PPERA. Compare that with the 400-plus cases of alleged electoral fraud that have apparently occurred in the same period, and one begins to get the impression that better utilisation of what the commission has is needed as much as more powers.

Furthermore, the commission’s predisposition—albeit somewhat reduced in recent months, it has to be said—to include itself in non-regulatory or enforcement activities such as the promotion of the electoral system and encouraging people to vote has, in the view of many, detracted significantly from its role as a guardian of the electoral system’s integrity. As my hon. Friend the Member for Chichester so accurately stated in his submission to the report of the CSPL:

“The first area where I think a mistake has probably been made was in asking the Electoral Commission to take responsibility for voter participation. I am confident, in retrospect, the majority of people think that it should not have...I think that is the responsibility of political parties. If people are not interested in politics it is our fault, primarily.”

I presume that “our” refers to politicians.

Yet that element of the commission’s work is supported by a ring-fenced £7.5 million, or some 34 per cent. of last year’s costs—more than one third of its expenditure. I believe that those figures are right, but I would appreciate it if the Minister could confirm that that is the case. The Government’s original rationale for placing this function within the remit of the commission was alarm at the continuing drop in turnout at various elections. While the reasons individuals do not vote are highly subjective, it is surely a political party issue rather than a commission one. As my hon. Friend the Member for North-East Hertfordshire the then shadow Secretary of State for Constitutional Affairs, noted in the Committee on Standards in Public Life’s report,

“I think it is an important issue, but I think someone else should be doing it”.

Even more damning is the suggestion from the CSPL that the evidence of any impact, in terms of increased turnout in elections on the back of the Commission’s work, is at best mixed and some would argue negligible.

So this is the commission we find ourselves confronted with today. We accept the need for an effective commission and recognise it as a necessary and vital part of the modern electoral fabric. It is its duty to act as a watchdog of party financing and electoral administration. If we get it correct, people will have faith in the system and its integrity and we shall not undervalue the role of promoting the integrity of the system when assessing people’s propensity to vote. In other words, if I do not trust the system, why should I bother voting? That is the fundamental issue that the Government consistently shirk in the Bill, in which they continue, wrongly, to put turnout on the same level as countering fraud. The priority needs to be to refocus the commission, and that is what the amendment and new clause 1 sought to do, which is why we will be coming back to it at later stages.

What we have got, through a combination of deficiencies in the PPERA, is a mandate for the commission that is too weak in some cases and too broad in others. This has left us with an enforcement body that has fallen short of fulfilling both its potential and its important statutory duties. We will want to ponder where we have got to before the Bill is considered on Report, but I am not satisfied that we are yet where we want to be. It would be helpful if the Minister spent a little time analysing how we got to this position. Was it poor management, a poor legal structure, or a bit of both? Is he confident that the Bill, following the implementation of clause 1, is going to deal with the problem?

Michael Wills (Labour, North Swindon)

I may just have glimpsed a shadowy ghost of the consensus that I have been so avidly seeking throughout today. Apart from the occasional moment when the hon. Gentleman strayed into some general partisan comments about the overall nature of the Bill, there is a large measure of agreement on a lot of the substantive issues. Before I set out answers to some of his questions and our case for the clause, I point out that it was remiss of me not to address a couple of the important questions that he asked earlier.

On the difference between “necessary” and “sufficient”, although the hon. Member for Cambridge had a good go at it, I try never to avoid anything and I can tell the Committee that “necessary” will detail what is required in cases where the Bill requires clear steps to be taken, while “sufficient” will provide what needs to be done as a bare minimum when the nature of the obligation may be less clear. I hope that that clarifies that important point. Let me clarify a further point. In the hon. Gentleman’s previous remarks, he seemed to suggest that my comments about “complex” and “various” in relation to the previous group of amendments referred to the Bill. In fact, they referred to the 2000 Act, which has been in effect for eight years, so that was the point that I was making.

Clause 1 is an important part of the Bill for a lot of the reasons that the hon. Member for Huntingdon has set out. It emphasises that the commission has a role in monitoring compliance with the controls, but it also goes further and sets out the commission’s role in securing compliance. That will make it clear that a key part of the commission’s monitoring role is to investigate allegations or suspicions of regulatory failure, and to consider whether to take further action.

The clause also enables the commission to prepare and publish guidance setting out its opinion of what is required under the legislation referred to—section 145(1) of PPERA. The clause clarifies the commission’s role by making it clear that it has the responsibility not only to check whether relevant restrictions and requirements are being complied with, but to take the steps it considers necessary to ensure that the rules are complied with, and to deter non-compliance. The clarification of the commission’s role is intended to address a recommendation of the Committee on Standards in Public Life.

The 2007 report on the Electoral Commission drew on evidence received by the committee that suggested the commission’s interpretation of its regulatory mandate in the 2000 Act had led it to take a passive approach. In turn, that made it a less effective regulator and led to less public trust and confidence. The committee therefore recommended that the 2000 Act should be amended to make it clear that the commission has a duty proactively to investigate allegations or suspicions of failures to comply with the regulatory framework.

In particular, the committee recommended that the word “monitor” in section 145 of the 2000 Act should be replaced by the word “regulate”. However, we believe that such an amendment would not sufficiently achieve the underlying intention of the committee’s recommendation, which is to place greater emphasis on the active steps that the commission may take in order to perform its role. The wording of the clause will bolster the commission in performing its role and will place the correct emphasis on the importance of an active approach to regulation. We believe that that will result in a strengthened regulator. It is essential that the commission and those whom it regulates be in no doubt about the extent of the commission’s role as a regulator of party funding and campaign expenditure.

The second aspect of the clause relates to the commission’s ability to publish guidance, and is necessary to ensure that regulated individuals and political parties fully understand what they are required to do, or avoid doing, to comply with party funding legislation. We recognise that party funding rules are complex and that those charged with compliance are often volunteers who may lack financial skills. The clause is intended to reflect that. Such guidance might cover frequently asked questions, or it might set out some scenarios on novel circumstances and steps that the commission would expect a regulated individual to take to comply with regulatory requirements in those circumstances. The clause also allows the commission to produce best practice guidance or pro formas that parties or regulated donees might like to use to submit returns to the commission. The intention of this part of the clause is to ensure that the commission takes an active role in helping those whom it regulates to comply and avoid inadvertent breaches of the rules.

The hon. Member for Huntingdon asked various questions about the budget and was interested to know whether the commission would have sufficient funding to enable it to discharge these new duties. He will be aware that the commission is funded directly from the consolidated fund, after the Speaker’s Committee, about which the Committee has now been much enlightened, has approved its estimates. I am happy to write to him with the details of that budget. Indeed, I am sure the commission will be happy to let him know directly what its views are about the adequacy of its funding.

The hon. Gentleman spent a reasonable amount of time asking how we got to this position. I do not want to exhaust the Committee’s patience by providing a blow-by- blow account, but it is not surprising that in an area as complex and important as this, the legislation needs to be constantly revisited to ensure that it is appropriate to the circumstances. I do not need to remind the Committee of the various issues that have arisen from all parts of the House in recent years, which have suggested that we needed to take a fresh look at this subject. I have no doubt that, no matter how important and useful the Bill is in achieving its objectives, we will revisit these issues in legislation.

Incidentally, it has always been clear that, since the 2000 Act, the role of the commission should be that of a regulator. Section 145 of that Act makes it clear that the commission’s role is to monitor compliance—clearly, that is a regulatory role—and that it should do so by taking “appropriate steps.” That is a clear nod towards investigation and possible sanctions. That is not a new role, but it does need refocusing, as the hon. Gentleman clearly stated.

The clause is an important part of an important Bill and I hope that the Committee will support its inclusion.

Clause 2

Jonathan Djanogly (Conservative, Huntingdon)

We move on to clause 2, which deals with the new investigatory powers of the commission. PPERA created the commission and, at the same time, provided it with supervisory powers. Section 145 set out the general function of the commission as the regulator and monitor of compliance with part III, on

“Accounting requirements for registered parties”,

and part IV, on

“Control of donations to registered parties and their members etc.”

To complement that, section 146 empowered the commission to require a predefined group of entities to provide it with information relating to their financial affairs. That predefined group included registered political parties, recognised third parties, permitted participants in a referendum campaign, regulated donees and candidates at an election.

A person authorised by the commission may also enter the premises of a registered party, a recognised third party or a permitted participant to inspect their financial records. However, according to the Secretary of State for Justice, those powers have been used only once. On Second Reading, he said:

“In any event, the existing powers have been used only once since the Electoral Commission was established nearly eight years ago”—[Official Report, 20 October 2008; Vol. 481, c. 50.]

The first question to ask is, why have they not been used more frequently?

The scope of proposed new section 146 goes well beyond that, and the Minister must show some evidence of the need for such an extension. In particular, it would interesting to know what formed the catalyst for the Government to give those powers to the commission, what format the consultation process took and who was consulted. Can the Minister provide figures for the number of instances in which the commission has failed in its duty as a regulator on the basis of a lack of those proposed powers? In other words, have the Government reviewed to what extent the failure to regulate has so far been as a result of inaction by the commission, or of a lack of appropriate legislation? When does the commission feel that there could be a need to go into the homes of individual donors? How frequently is that likely to happen and on what basis?

Clause 2 seeks to replace section 146 of PPERA, thereby providing the commission with increased powers of investigation. Subsections (1) and (2) would insert and give effect to what is now schedule 1 of the Bill, while subsection (3) makes provision for penalties for offences under the new schedule. Among other things, schedule 1 would enable the commission to require access to financial records and information, and to enter premises to inspect and make copies of relevant documents.

Paragraph 1(1) of schedule 1 is particularly concerning. It would extend the power under section 146 of PPERA to enter premises that had previously been restricted to registered parties, permitted participants and candidates at elections. Paragraph 3 of schedule 1 would include other bodies or individuals such as donors. Those investigatory powers can be exercised in cases where the commission has “reasonable grounds” to suspect that an offence or contravention has been committed. Will the Minister give an early indication of what he thinks would constitute “reasonable grounds”?

This provision has the potential to erode the willingness of law-abiding citizens to donate to political parties—a point that has been made by many people. It would take only one heavy-handed and well-advertised use of those powers in someone’s home or office for other legitimate donors to take fright at the prospect of giving money to political parties. Giving money to political parties is, for the vast majority of contributors, done for the noble and civic intention of wishing to promote a better society for all. To destroy or hinder that instinct would be inexcusable, let alone anti-democratic. That is why we have tabled a number of amendments to schedule 1. The stakes are high and we must thoroughly justify the need for these new, sometimes severe powers.

In so doing, the Minister should bear in mind the comments of Peter Wardle, chief executive of the commission. Giving evidence to the Committee on the extension of the commission’s powers to cover regulated donees, he expressed reservations over the extension and said:

“We feel that the current powers are adequate to do the job we need to do regarding inspection. One can see why, for completeness, the powers have been extended, but we are not convinced that we need these powers.”——[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 43, Q104.]

I read with interest the White Paper published by the Ministry of Justice in the run-up to the Bill. I note in particular the sections entitled, “The case for change”, through to, “The Government’s proposals for reform.” However, in the section entitled, “The case for change”, I was left somewhat bewildered by the fact that there was no mention of the need for the commission to have the power to demand documents from individuals. That does not appear until the proposals on page 27:

“To provide the Commission with a widened range of sanctions and investigatory powers to enable it to become a more robust regulator. The Commission’s powers to obtain information would be extended to allow it to require the production of information from relevant individuals not currently covered by the PPERA powers where it is appropriate to do so...This would need to be accompanied by appropriate safeguards.”

Furthermore, there is no recommendation that the commission should be able to enter the homes of individuals. Will the Minister tell us from whom that recommendation first came?

The commission states that the power of entry is consistent with that used by other regulators. Will the Minister tell us what circumstances have necessitated the use of such powers? How often does he or the commission envisage the powers being used? Is the Minister also aware of the commission’s own concerns that the safeguards for access to premises occupied by regulated donees—including individual MPs and other holders of elective office—may not be robust enough? Has the Minister taken up the commission’s offer to consider further how to safeguard such powers effectively? Does the Minister not find it concerning that the very organisation that they seek to empower shies away from the arbitrary power being handed to it?

According to a press release issued by the Home Office in July there are now 1,043 separate laws that allow state inspectors to enter people’s homes and premises. On 15 July, the operational policing section of the Home Office slipped out a new detailed survey of powers of entry by state officials. There was no press release, no comment and no fanfare.

Of those 1,043 state powers of entry, 753 are exercisable under primary legislation and 290 through secondary legislation. In total, an estimated 430 new powers of entry have been created by this Government. Despite the Prime Minister’s pledge last year to curtail those rights, a further 16 new laws are being pushed through Parliament that entrench or extend powers of entry.

In a speech last year, the Prime Minister pledged to curtail powers of entry with a new liberty test. He said that any change to entry powers would be accompanied by new guidance on using such powers and on the rights of members of the public to prevent their abuse. To paraphrase his speech, he made three points. He said that any change will be accompanied by guidance on how it is to be exercised; that individuals have the right to take action if that guidance is not complied with; and that we should consider whether we need to do more to offer redress for the individual against disproportionate use of those powers by the state.

From my reading of the Bill so far, not one of those limbs of the test has been complied with. Will the Minister explain why not, and when and how they will be, or is it simply that, given what I hope is not going to become the partisan nature of the Bill, the Government want to rush through the measures in time for the next general election?

We support the general need to empower the commission and to provide it with tools to be an effective regulator. However, unless we are careful, the effect of the measures will be to push people further away from the political process. As my right hon. Friend the Member for Horsham (Mr. Maude) rightly pointed out on Second Reading:

“We all agree that the Commission must have appropriate powers to enable it to carry out its duties, but there is a real concern about the proliferation of search and entry powers.”—[Official Report, 20 October 2008; Vol. 481, c. 58.]

Donations to political parties are a way of volunteering assistance to the political process, and the last thing that we wish to do is discourage it. We must be careful to ensure that we do not introduce knee-jerk legislation when we have not fully considered its long-term impact. Given the rushed nature of the timetable for the Bill, I fear that we may be in danger of doing just that. It seems that the old saying “more haste, less speed” could be applied to the Government. In their desire to push through the Bill, I trust that they will not breach their own code of practice on guidance—or the Government’s guidance on guidance—which states that guidance should be issued at least three months before any regulation comes into effect.

I want to finish by saying that there is a twist to this. In answering a written question from my hon. Friend the Member for Chichester, the Minister noted that the consultation on clause 10 will be that of the Electoral Commission and not the Government. Will the Minister explain the position relating to clause 2 and schedule 1 and confirm that that full consultation will occur, whichever body undertakes it?

Frank Cook (Labour, Stockton North)

I should draw the Committee’s attention to the fact that the hon. Gentleman made extensive reference in his contribution to various elements in schedule 1. I did not stop him, but that makes me less well disposed to the prospect of having a stand part debate on the schedule. If other members will bear that in mind, it will help me.

David Howarth (Liberal Democrat, Cambridge)

Thank you for those comments, Mr. Cook. It will take me much less time than the hon. Member for Huntingdon to say what I have to say about the clause. He is right to worry about powers of entry and other details that we will discuss when we debate schedule 1, but we politicians have to bear it in mind that Parliament has imposed lots of requirements on other people. When it comes to imposing similar requirements on politicians themselves, people who were not concerned before suddenly become concerned, and we must be aware of what that looks like to the outside world. The key is that we should not make arbitrary exemptions for ourselves. The principles that we apply when regulating politics are the same as those that we apply to the regulation of anything else. I hope that when hon. Members make points that might sound self-interested, they will at least have the grace to concede that similar points can be made about other people’s civil liberties, not just their own.

Andrew Turner (Conservative, Isle of Wight)

I should simply like an explanation of the measures on page 2. In the right-hand column, lines 5 and 8 mention summary convictions, and that is to be understood. Further down, however, there seems to be a rather peculiar situation in which the Northern Irish are entitled to six months off from what the English, Welsh and Scots have to pay as a penalty. Why are the Irish entitled to a lesser penalty than the English, Welsh and Scots?

Michael Wills (Labour, North Swindon)

I shall be relatively brief, because many of the important points of detail that the hon. Member for Huntingdon has raised will be covered in our discussions on amendments. I shall simply say a few general words about the clause.

The distinguished contributions of the hon. Members for Huntingdon and for Cambridge clearly illustrate the path that we have tried to tread with the clause and the schedule. Of course, we have to be sensitive, as the hon. Member for Huntingdon has said, to the voluntary nature of a huge amount of political activity. We must be sensitive to the need to sustain that activity and to the risk of that effort being damaged by any legislation giving the Electoral Commission new powers. He made the case very well about the potential risks of this clause and, indeed, any legislation that seeks to regulate.

The hon. Member for Cambridge rightly points out that we must be extremely careful of seeming to exempt ourselves arbitrarily from regulations and controls to which we rightly expect other participants in public life to be subject. The controls that we propose are not dissimilar to those relating to the Financial Services Authority, for example. We have to steer a careful course here. My right hon. Friend the Secretary of State for Justice and I made it clear on Second Reading that we are sensitive to the concerns that hon. Members on both sides of the House have expressed about this clause and about the powers in the schedule to which it is so closely linked. The amendments that the Government have tabled, which we will discuss in due course, show that we are trying to respond to those concerns.

However, in relation to the overall position, it is worth reminding the Committee that the commission already has extensive powers under section 146 of the 2000 Act, which requires the disclosure of documents and gives it the power to enter premises and take copies of information for the purposes of carrying out its functions. It is a criminal offence, under the provisions of that Act, to fail,

“without reasonable excuse, to comply with”

a request or to obstruct entry and search.

The powers that we are discussing already exist. They have, from memory, only been used once in the past eight years. They have not been used extensively, but they exist. As we discuss the matter, we will see that these powers are being restricted. We have tabled amendments and we will discuss the details as we go forward and I will, if I may, address many of the particular points that have been raised in the course of that discussion. It is important to bear it in mind that, so far, we have consensus on the importance of the Electoral Commission’s regulating the conduct of elections more effectively than it has done in the past—I think that all Committee members agree with that. If the commission is to do that, we have to give it the powers to be an effective regulator.

We have tabled a lot of amendments and I will bear in mind your strictures, Mr. Cook. However, if I may suggest it, there would be merit in, and the Committee would benefit from, a stand part debate on schedule 1, because it is important, there is a widespread degree of concern about it, and we should have such debates. However, I will restrict myself at this point.

We have to bear in mind that we must give this body the powers to be a credible regulator.

Jonathan Djanogly (Conservative, Huntingdon)

It is important that, at this stage, the Minister gives the Government’s rationale for needing the clause. He just said that there has been only one prosecution in this area in the last eight years. Does he think that there are things that would be prosecuted, but are not being prosecuted, because there is a lack of legislation, or does the commission need to pull its finger out and do more of what it should have been doing? Perhaps he can give the Government’s view on what needs to be done.

Michael Wills (Labour, North Swindon)

We are trying to give the commission new powers so that it can be more effective, as is necessary, in respect of the offences. As the hon. Gentleman has said, powers of entry are provided for under those new measures. The commission should be a credible regulator that can act as a deterrent as much as anything else. I ask the hon. Gentleman, as we discuss these matters further, to bear it in mind that the existence of these powers may act as a deterrent to the kind of behaviour that we do not want to see in the conduct of our elections. That is an important point. It is not that we think that these offences will necessarily be committed and that they will then have to be prosecuted under the relevant powers; we want to stop this behaviour happening. The existence of these powers could be a credible deterrent.

I want to address a lot of the detail, because it relates to the amendment, but first I want to correct a remark I made earlier and put the record straight. The commission has not used its powers of entry; it has only once used its power to request documents.

I hope that Committee members will support clause 2 and that we can discuss its detailed implementation as we go through schedule 1.

Andrew Turner (Conservative, Isle of Wight)

I was hoping that the Minister would respond to my question.

David Kidney (Labour, Stafford)

Will the Minister give way?

Frank Cook (Labour, Stockton North)

Order. Has the Minister given way to Mr. Turner? He cannot take two interventions at the same time.

Michael Wills (Labour, North Swindon)

I have given way.

Andrew Turner (Conservative, Isle of Wight)

I made my remark and sat down.

David Kidney (Labour, Stafford)

On the question asked by the hon. Member for Isle of Wight, might the answer relate to the passage of the Criminal Justice Act 2003? Might it be that that does not yet apply in Northern Ireland, which is why there is a distinction between a six-month sentence in Northern Ireland and a 12-month sentence in the rest of the UK? It was a new sentence introduced in the 2003 Act, under which I think half is meant to be served and half not. There is still a maximum of 26 weeks to be spent in a prison cell.

Michael Wills (Labour, North Swindon)

I am grateful to my hon. Friend, who has summarised the situation perfectly.

Schedule 1

Jonathan Djanogly (Conservative, Huntingdon)

I beg to move amendment No. 102, in schedule 1, page 13, line 15, leave out sub-sub-paragraph (1)(d).

The part of the schedule to which the amendment refers deals with powers

“in relation to registered parties and others”,

and it is the “others” bit about which we have most concern. The amendment proposes the deletion of the term “regulated donee” from the list of people or groups to whom the commission’s new investigative powers will apply. This part of the schedule is effectively lifted from the PPERA, but with the important change of inserting that category.

The meaning of “regulated donee” is defined in paragraph 1(7) of schedule 7 to that Act as

“a member of a registered party...a members association; or...the holder of a relevant elective office, whether or not he is a member of a registered party.”

The amendment comes on the back of our concerns about the extension of the powers to individuals. Given that a person can fall under that provision and not be a member of a registered party, I fear that unless we are careful the effect will be to push people further away from the political process. The hon. Member for Cambridge said earlier that we have to examine politicians, but he will appreciate that what we are discussing here goes much further than politicians and deals with donors.

By broadening the scope of which people the powers of investigation cover, we are in danger of casting the net too wide. People may become fearful, or at least think twice about volunteering their time and energy to assist political parties, if the end result might be that they are investigated by the commission for an action that they have no direct involvement in. My understanding is that it was the Ministry of Justice, rather than the commission, that requested these extensions to the powers. Will the Minister please explain why, and why he believes that they will be required in practice?

In an era of political disfranchisement and unwillingness to get involved in the political process, the last thing that we wish to do is discourage donors. We must be careful to ensure that we do not introduce legislation so broad that it tars everyone with the same brush. We do not need another reason for members of the public to turn their backs on political parties.

The provision is also a disproportionately powerful tool to hand to the commission. How does the Minister see the balance between its enforcement role and the need to safeguard the public from arbitrary state interference working in the paragraph that I mentioned? Can he give hon. Members an idea of the number of people in the UK who would be considered regulated donees and therefore fall within its scope?

What evidence has the commission, or any other body, presented to the Government to support the need for such a broad definition of those who can be investigated? The impact of the change will clearly be to alter the limited scope of the powers and apply them to a hugely larger catchment group. Finally, what example can the Minister give of the powers having been required in practice?

David Howarth (Liberal Democrat, Cambridge)

The Electoral Commission’s view is that it requires regulatory power over at least some regulated donees. I notice that the provision is about donees rather than donors—the people receiving the money, not the people giving it.

Regulated donees are defined in the 2000 Act as members of a registered party, a members’ association or

“the holder of a relevant elective office”.

The particular group that the Electoral Commission believes it needs regulatory power over is the middle one, the members’ association. Under the current law, a members’ association is defined as

“any organisation whose membership consists wholly or mainly of members of a registered party, other than”

something that is a party itself.

There is a requirement to regulate registered donees and to have access to their papers because otherwise it would be easy for sub-groups within parties to be set up in such a way as to evade regulation. It is perfectly reasonable for the Bill to extend the basic way in which regulation happens to members’ associations. It was implied in the comments of the Electoral Commission that the Government must answer why it is also necessary to extend the same powers to individual members of parties or individuals who hold elected office.

In fact, those two cases might be different. There might be an argument for the third category: those of us in the House, for example, who are holders of elected office. I shall not refer to particular media items, but it might be possible for donations to parties to take a route to an individual hon. Member for help in his office or such matters. They might otherwise have gone to the party, so perhaps there is a case to answer in such instances. However, I am worried about the extension of the powers to individual party members, which was the strongest point made by the hon. Member for Huntingdon.

Unfortunately, the amendment would go far too far. Under existing law, there is power to require documents from registered donees. The Bill adds powers of entry, which is what is worrying several people. The problem is that, under the existing law, powers to require documents and powers of entry are treated separately. The Bill puts them together.

Unfortunately, the hon. Gentleman’s amendment would not only prevent the extension of the law, but take the law away from where it is and reduce the power of the commission over requiring documents. We should not do that. It raises the matter that the commission mentioned, in that the issue should be approached not through entering people’s premises on a warrant or on the say so of the regulator, but by going instead down the route that it proposed of treating the whole thing as a civil matter, whereby the commission goes to the court and asks for an order requiring documents be produced.

It was proposed that if the requirement was not obeyed, at that point—as a remedy for the failure to comply—the court could either hold the object of the law in contempt or further authorise a search. There needs to be some regulation; there seems to be over-inclusiveness in the schedule’s drafting. I ask the Government to look at the matter again—not how the amendment proposes, but more subtly than that.

Michael Wills (Labour, North Swindon)

Independent review after independent review has recommended that the Electoral Commission’s powers should be overhauled. It cannot be right, for example, that when someone has used an agent to give money to a party, the Electoral Commission can require information not from the original secret donor, but only from the agent. The powers that we propose will allow the Electoral Commission to investigate effectively and request information from all those who have it.

There is a case to be made for allowing the investigatory powers to apply to regulated donees. However, of course I am aware of the concerns that have been expressed here today, and elsewhere, by hon. Members about the powers and their application to regulated donees. I am also aware that the Electoral Commission has perhaps been reconsidering its position—we have had some communications, and I intend to discuss the matter further with it and to reconsider carefully whether the extension provided by the Bill is defensible. Given that the commission has yet to use the power, the case for extending it may still have to be proven.

Colleagues and Members of Parliament have expressed concerns. We need to seek the advice of the regulatory body to see what it feels on the subject. When we have had those further consultations with the Electoral Commission, I shall respond to this point. However, I take up the invitation of the hon. Member for Cambridge to reconsider those points of view. As we are engaged in reconsidering the provision, I hope that the hon. Member for Huntingdon will withdraw his amendment.

Jonathan Djanogly (Conservative, Huntingdon)

This has been a helpful debate, and we have moved the argument on this afternoon. I accept some of the critique of the hon. Member for Cambridge on the drafting of the amendment, but the point is one that we certainly intend to think on further—he does too. I am pleased that the Minister has said that he will consult with the Electoral Commission and think further on the issue. On that basis, I beg to ask leave to withdraw the amendment.

Jonathan Djanogly (Conservative, Huntingdon)

I beg to move amendment No. 86, in schedule 1, page 13, line 23, after ‘may’, insert ‘only’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following amendments: No. 87, in schedule 1, page 13, line 24, after ‘been’, insert

‘, within the 5 years immediately prior to the date of the notice,’.

No. 88, in schedule 1, page 13, line 26, at end insert

‘and whom the Commission have reasonable suspicion to believe has committed an offence under this Act.’.

No. 89, in schedule 1, page 13, line 26, at end insert—

‘(2A) A disclosure notice must be served on the individual specified in paragraph (2) by hand by a person specifically authorised by the Commission to effect the service of such notices.’.

No. 90, in schedule 1, page 13, line 30, leave out ‘any’ and insert ‘information or’.

No. 91, in schedule 1, page 13, line 34, leave out from ‘of’ to end and insert

‘investigating an offence under this Act.’.

No. 92, in schedule 1, page 14, line 2, at end insert—

‘(3A) A person served with a disclosure notice under paragraph (2) may appeal to the Commission in writing within 14 days of receipt of service under paragraph (2A).’.

No. 93, in schedule 1, page 14, line 4, leave out from ‘within’ to end and insert

‘28 days of receipt of that disclosure notice.’.

Jonathan Djanogly (Conservative, Huntingdon)

We shall now deal with a batch of several amendments. Given the accusation about the commission’s passiveness in exercising its regulatory role, the amendments would ensure that there was no ambiguity or discretionary element coming out of the schedule, or would at least reduce them.

Amendment No. 86, by removing any suggestion of discretion, would make it clear to the commission and to the individuals or organisations covered by the schedule what must be done to comply with it. The addition of “only” would ensure that there was no ambiguity around when a disclosure notice may be issued by the commission. That would help to clarify the position for the commission and those subject to the provision.

Given the complexity of the schedule, certainty must be our objective, thereby reducing the possibility of the provisions being breached by administrative oversight or simple ignorance of the effect of non-compliance.

Amendment No. 87 would include a specified time limit for the period in which an officer of a party may be considered within the remit of the Bill under clause 2. It is an important issue. We do not wish to see individuals subject to disclosure notices for some long-forgotten donation or action. It is unreasonable and impractical to extend the power to cover actions taken or documents received at any point in history when we are talking about people who mainly are volunteer workers.

On a practical level, the keeping of comprehensive records for more than five years will be difficult to enforce and is unlikely to be achieved, given the limited space that party officials often find themselves working in. I am sure that a straw poll of hon. Members would find few with full and comprehensive records for matters that occurred before 2002 that were also easily accessible.

We must be mindful of the financial and administrative burdens that we place on those individuals and organisations, not to mention the likelihood that many of the individuals concerned may have left such offices, or even the country. The time limit of five years attempts to achieve more than just nodding acquaintance with the normal term of Government. I certainly hope, too, that where the commission is planning on issuing such disclosure notices, it does so expediently and well within the five-year limit proposed. If it does not, that will be the fault of the commission, rather than the individual.

In amendment No. 88, the need for “reasonable suspicion” by the commission is a theme that will be seen in a number of my amendments during the course of our debates on the Bill. Here I suggest its insertion into paragraph 1(2) of schedule 1. We are dealing, as always when we legislate, with the need to balance competing interests. On the one hand, the commission must be given effective and workable powers of investigation that it can utilise in its role as regulator and, on the other, party officials and individuals must be allowed to go about their usual business without fear of being arbitrarily subject to possible investigative whims of the commission.

We have a legal system in the UK that operates on the principle of innocent until proven guilty. The amendment would maintain that principle and ensure that the commission operates within the rule of the law. The concept of “reasonable suspicion” is seen throughout the criminal and civil sanction regimes laid down by this House over the years. It is a vital tool in ensuring that the agents of the state do not have arbitrary powers to encroach on the lives and activities of honest groups or individuals. It is a reminder to agencies that they are not above the law, while providing an avenue for redress for an individual who feels that they are subject to unjustified and arbitrary state persecution.

The courts of this country are familiar with the concept, so too are the various regulatory bodies that operate to ensure compliance with the law in the UK. I have not proposed the need for belief beyond “reasonable doubt” as I believe that that may unduly hinder the effectiveness of the commission. The test of reasonableness, however, would not only safeguard the individual, but would focus the mind of the commission when investigating alleged offences under the Bill. Will the Minister tell hon. Members why such a safeguard was not originally included in the Bill?

Amendment No. 89 relates to sub-paragraph 1(2), which as it stands, is silent on the method of service for disclosure notices. That could have difficult practical implications for the effective workings of this new system. Are we to accept that by simply posting a notice the commission can be considered to have properly served such a notice? What of the situation where the individual or group has moved address? I believe that the service of such notices by hand is both the fairest and most proper way of handling this current deficiency. I have neither seen nor heard from the Minister any figures that would suggest that this would place a disproportionately arduous burden on the commission, nor do I believe it is unreasonable for the commission to serve disclosure notices in such a way. How many does the Minister consider will be handed out per year? Presumably, very few indeed.

If we are to grant the commission the power to enter premises and remove documents, thus interrupting the lives of individuals, it is a matter of due process, not to mention courtesy, that those individuals are first, made aware of the investigation and secondly, have proper notice of such an investigation and a disclosure notice, so that they may be given the fullest amount of time to comply and avoid further penalty.

I noted that I did not believe that service by hand would place an undue burden on the commission. To support this I would like to draw hon. Members’ attention to comments made by the Secretary of State for Justice in the first evidence session before this Committee. In response to questions I put to him he said:

“The answer is that, as at 16 June 2008, 29 people had been prosecuted under the 2002 Act, resulting in 23 convictions.”——[Official Report, Political Parties and Elections Public Bill Committee, 4 November 2008; c. 18, Q38.]

By my calculations, that is less than four prosecutions on average for each of the years that the commission has been operating. Unless the Minister has evidence to suggest that many more disclosure notices will be issued by the commission in the years following the enactment of this Bill, I believe that service by hand, when balanced against the severity of the penalties for none compliance, is fair. Amendment No. 90 is consequential.

Amendment No. 91, dealing with paragraph 1(3), would ring fence the powers of the commission and concentrate them only on investigations of offences under the Bill. The amendment would remove the ability for the commission to use this power in relation to “any of its functions”, which is an unnecessary and unjustified extension. The commission’s functions under PPERA have been the focus of many reviews by a multitude of different organisations. Indeed, we are here today because the commission’s previous functions were deemed too wide and therefore were hampering its ability to effectively undertake its role as a regulator. Part I of PPERA contains 21 sections and two schedules that expressly set out the functions of the commission.

Are we to believe that the Government intend these powers to extend to the commission’s multiple roles? Or rather are they to be used only in relation to their investigation of offences under the Bill? I hope very much, for the sake of all of those who act in some capacity that brings them into contact with political penalties or donations, that it is the former. Otherwise, the balance will have been tipped unnecessarily in favour of the commission. We would hand it powers that it not only does not need, but would not use.

I hope that the Government see that the breadth of the sub-paragraph as it currently stands is very wide. As an aside, would the Minister please confirm that the existing powers of investigation in PPERA will be terminated by the Bill so that there is no duplication of powers, which could—inadvertently, I am sure—be used to give the commission a second bite of the cherry?

Amendment No. 92 deals with paragraph 1(3). I would like to reiterate points made by Sir Hayden Phillips. In the first evidence session before this Committee, he said that he hoped we would be able to find amendments that would make everyone comfortable that the powers are not excessive. I fear that without a right of appeal, which I propose in the amendment, we are handing the commission a mandate to serve disclosure notices on individuals and groups associated to political parties in the manner of a fishing exercise. Without a right to appeal, there is nothing to prevent the commission from simply trawling the records of such people in the hope of finding an inconsistency on which it could build an investigation.

I am not suggesting that that would take place with the current commission, which has been co-operative throughout the development of the Bill, including with the official Opposition, but we are legislating for future generations that will not have been privy to the many discussions and debates that have surrounded it. As such, we must ensure that we minimise opportunity or flexibility that would leave the powers open to abuse in years to come. By having a right of appeal as set out in the amendment, we would, in effect, have a self-policing safeguard that would require no additional cost to be borne by the commission. Furthermore, given the 14-day time frame, it would not produce unnecessary delay to investigations.

Amendment No. 93 deals with paragraph 1(4). It returns to my concern that many aspects of the Bill are so broad that they could be rendered almost unworkable in practice. Compliance in a “reasonable time” is too subjective a concept. One man’s reasonable may be another’s unnecessarily harsh or overly lenient. Elements of subjectivity in time-keeping should not have a place in a Bill such as this. Clarity and certainty are needed. The amendment would work to the ultimate benefit of all parties involved.

The 28 days recommended in our amendment should be sufficient for those served with a disclosure notice to locate the documents and information specified in it. Given the penalties that may be faced for non-compliance, every effort should be made to ensure that individuals do not fall foul of them because of unforeseen delays. Illness, temporary IT problems, personnel on holiday or any number of other eventualities may prevent documents or information from being submitted to the commission.

I would caution against over-zealous application of the limit by the commission. Co-operation is the easiest and simplest way to resolve most causes of a breach of the provisions of the Act, and the commission should not be too quick to take punitive action. I hope that the Government will see the value in what I have said, and I welcome the Minister’s comments.

David Howarth (Liberal Democrat, Cambridge)

I have a great deal of sympathy with what the hon. Member for Huntingdon said towards the end of his remarks, especially about amendment No. 93, which would add to the clarity of the schedule. I hope that the Minister has some explanation as to why the system at present operates on the basis simply of “reasonable time”.

I also have some sympathy with amendment No. 92, which would insert an appeal mechanism. That is necessary if we are not to go down the route that the commission suggested of having it go to the court in the first place to ask for enforcement of a disclosure notice.

However, I would like to spend a minute or two on amendments Nos. 88 to 91, with which I am less comfortable. They tend to conflate two different functions of the commission. It may well be the hon. Gentleman’s argument that the commission should have only one function, and that he is trying to get rid of the other one.

The two functions are inspection, and the investigation of offences. Of course, a body that has an inspection power will, ultimately, need some criminal law sanction, or some sanction, to enforce it. Nevertheless, the main point is that it is not the criminal law, or taking people to court to prosecute them for non-compliance, but the inspection itself that gets the compliance. The idea is that transparency, openness, information and audit all add together to produce compliance with the law—whereas investigatory powers of the second sort are more like what the police or prosecution authorities do.

In amendment Nos. 88 to 91, the hon. Gentleman is trying to remove the difference between those two. He is treating the Electoral Commission purely as a prosecution authority—as if it were the Serious Fraud Office or the DPP. I do not think that that is appropriate. A regulatory body needs tools other than prosecution to get compliance. The tool available to it—inspection backed by sanctions—is an appropriate and better tool for what it has to do. I fear that the hon. Gentleman’s approach will have the opposite effect to the one he wants: it will make the commission more like a hard criminal prosecutor and less like a regulator. His approach will encourage the kind of attitude that those who read news stories about the commission’s activities have: that those involved in politics are the kind of people who commit criminal offences, as opposed to merely being the kind of people who need to be audited.

Michael Wills (Labour, North Swindon)

The hon. Members for Huntingdon and for Cambridge have made useful contributions; I am grateful to them. Many detailed issues were raised and I shall run through the amendments more or less in order—although I am afraid I will have to resist all of them.

Amendment No. 86 is unnecessary. It seeks to limit the extent of the commission’s investigatory powers under paragraph 1(2) of schedule 1 to the Bill. The effect of the amendment would be that the commission would only be able to issue a disclosure notice either to a treasurer or an officer of an organisation to which paragraph 1 applies, or to an individual to which paragraph 1 applies—in other words, regulated individuals. That is the effect of paragraph 1(2) anyway, so the amendment is unnecessary. The limitation in paragraph in 1(2) will have no effect on the use of paragraph 2, which is a separate power to which separate limitations set out in the Bill apply. The commission needs a cross-party consensus to become a more effective regulator. If it is going to do that, it needs more appropriate investigatory powers and the clause as drafted does that without straying too far. For that reason, the amendment is unnecessary and I hope that the hon. Gentleman will feel able to withdraw it.

I am afraid that I will also have to resist amendment No. 87 because it seeks to place a time limit on the commission’s powers to issue a disclosure notice under paragraph 1(2). The effect of amendment No. 87 would be that the commission would only be able to issue a disclosure notice to a person who has been a treasurer or another officer of an organisation to which paragraph 1 applies in the past five years. Currently, the commission can issue a disclosure notice to any person who is, or who has been the treasurer or another registered officer to which this paragraph applies, or an individual to which this paragraph applies. There is no time limit in relation to that.

Although it seems unlikely that in most cases, the commission will need to go back in time more than five years, we cannot entirely rule out that possibility. Given that the commission will have to exercise its powers reasonably, which is in line with the general principles of public law, before making a request under paragraph 1, we do not think that such a constraint needs to be put in the Bill. I therefore hope that the hon. Gentleman does not press the amendment.

I shall deal with amendment Nos. 88 and 91 together and at some length because they raise important questions that I know are of general concern to the Committee and hon. Members more widely. Both amendments seek to limit the extent of the commission’s investigatory powers. Although the amendments are clearly well intentioned—and we are grateful to the hon. Gentleman for the spirit in which he is proposing them—they, nevertheless, suggest a misunderstanding about the different purposes of the powers set out under paragraph 1 and those set out under paragraphs 2 and 3. If there is such a misunderstanding, I hope that it will be helpful to the Committee if I set out the different purposes of those powers and the interplay between them. The hon. Member for Cambridge may have been alluding to that in his remarks.

Paragraph 1 of the new schedule restates, with some changes, powers that the commission has in relation to registered parties and others that are contained in section 146 of the 2000 Act. Under section 146(3) of that Act, the commission has powers to enter premises and take copies of information relating to income and expenditure from a registered political party, a recognised third party and a permitted participant in a referendum. That power under the Act can be exercised by the commission for the purposes of carrying out its function. At present, the power to enter premises does not apply to election agents or candidates in an election—except candidates at a local election in Scotland.

However, the commission currently has powers under section 146(1) to require the disclosure of documents relating to income and expenditure from election agents or candidates. The Bill repeats the existing power to enter in paragraph 1(5) of proposed schedule 19A, which is to be inserted into the 2000 Act by schedule 1 to the Bill. It also extends it to candidates—other than candidates in Scottish local government elections—election agents, regulated donees, including MPs, and regulated participants. The result of that is that the original power in the 2000 Act for the commission to enter premises for the purpose of carrying out its functions will now apply to election agents and candidates, alongside the other individuals and organisations listed in paragraph 1(1) of schedule 19A.

Paragraph 2 of the schedule seeks to provide new powers for the commission when it undertakes an investigation into a suspected breach of the 2000 Act. To that end, the Bill provides the commission with new powers to request information, to put questions and to apply for a warrant to enable it to enter premises when carrying out an investigation into a suspected offence or other contravention of the 2000 Act. Those powers can be applied to election agents and candidates who have such information in the same way that they may apply to anyone else.

However—this is crucial to addressing the concerns of many hon. Members in Committee and in the House more generally—we have also introduced a number of important safeguards for the use of such new powers. In relation to the entry of premises under this new power, the commission will need to apply for a warrant under paragraph 3 of proposed schedule 19A. There is no automatic right of entry. For a warrant to be issued, the commission must demonstrate on oath to a justice of the peace that it has reasonable grounds for believing that an offence has been committed—or that another contravention of the 2000 Act has occurred. It must also establish that documents are on the premises that were withheld following an earlier request or that are otherwise relevant to the investigation. When entering the premises, commissioners must be accompanied at all times by a constable.

The amendments seek to limit the extent of the commission’s investigatory powers under paragraph 1(2) and (3) of the schedule. The effect of amendment No. 88 would be that the commission would be able to issue a disclosure notice only to a treasurer or officer of an organisation to which paragraph 1 applies, or an individual to which paragraph 1 applies, such as regulated individuals.

That would impact on the powers of the commission in paragraph 2 of the schedule to require any person, including a regulated individual listed in paragraph 1, to produce documents or information that it reasonably requires to investigate suspected offences or contraventions. That would seriously hamper the commission’s ability to investigate suspected breaches or contraventions in conjunction with relevant prosecuting authorities.

The effect of amendment No. 91 would be to restrict circumstances in which the commission can issue a disclosure notice so that it could do so only when it has formed a reasonable suspicion that an offence has been committed under the Act. Currently, the commission can issue a disclosure notice seeking information or documents relating to the income or expenditure of the organisation or individual in question that it reasonably requires for the purposes of carrying out its functions.

The powers set out in paragraph 1 are supervisory powers and we believe that the commission should be able to use those powers to determine whether regulated individuals are complying with regulatory requirements. To restrict that power to circumstances in which the commission has formed a suspicion that an offence has been committed—as is required under paragraph 2—would unnecessarily restrict the commission’s ability to carry out its supervisory and monitoring functions. I, therefore, hope that the hon. Members will not press the amendment.

Unfortunately, I shall have to resist amendment No. 89, too. It would require a disclosure notice served under paragraph 1(2) of proposed schedule 19A to the 2000 Act to be served by hand by a person specifically authorised by the commission to do so. I understand the points made by the hon. Gentleman, but we cannot give him any information about how often the power will be used because we do not know that. However, it is likely that the relatively small number of occasions it was used between 2000 and 2008 will increase because, at that point, the commission did not have investigatory powers. How burdensome it would be to the commission is therefore impossible to say, but the case for resisting the amendment does not rest only on the fact that it would be burdensome.

Serving notices by hand is unnecessary. There are other ways in which to serve notices, which would remove the risk of such action being a burden on the commission. Moreover, it is important that the hon. Gentleman considers that serving the documents by hand might also create an opportunity to allow those to whom the commission intends to give a disclosure notice to obstruct the receipt of that notice in a way, for example, that delivery by recorded delivery or registered post does not. Such methods of delivery do not give the same opportunities. In light of my explanation, I hope that the hon. Gentleman will not press the amendment.

Sadly, I shall have to resist amendment No. 90 as well. It would allow a disclosure notice issued by the commission to require the production of documents or information rather than any documents, as the Bill currently provides. The amendment’s effect is already achieved by paragraph 1(3)(b) of proposed schedule 19A to the 2000 Act. It provides for a disclosure notice to require the person to whom it is given to provide the commission with information. The amendment is unnecessary as it would not add to the effect of the Bill. I therefore hope again that the hon. Gentleman will not press it.

I resist amendment No. 92. It would allow a person served with a disclosure notice to appeal to the commission in writing within 14 days of receipt of service under paragraph (2A), which the amendment would insert. A disclosure notice is essentially a request for information requiring the person to whom it is given to produce for inspection by the commission any documents that relate to income and expenditure of regulated individuals and organisations, and that are reasonably required by the commission for the purposes of carrying out its functions. The commission is best placed to decide whether it is necessary to issue such a request, and it would slow down the progress of investigation considerably if each notice were accompanied by a right of appeal.

Because a disclosure notice is not a sanction, we do not believe than an appeals process is necessary. It would be open to individuals who feel that they have a reasonable excuse not to comply with a disclosure notice because, for example, they do not hold any of the requested documents, to provide the commission with an explanation of why that is the case. In subsequent proceedings in respect of an offence for refusing to comply, any such explanation would have to be taken into account by the commission or, indeed, by a court. I hope that, in light of that reassurance, the hon. Gentleman will not press that amendment, too.

I come now to amendment No. 92, which the Committee may be relieved to hear is the final amendment in this group. It requires those served with a disclosure notice by the commission to comply within 28 days. Under the Bill, they would currently be required to comply within such reasonable time as is specified under the notice. I agree that those who receive a disclosure notice need to be given time to comply with it, and that they need to know the length of the period. That is why the Bill provides for a disclosure notice to specify a “reasonable” time within which the person served with the notice must comply. To that extent, there is certainty.

There has been some discussion about whether “reasonable” is sufficiently certain. We would argue that the flexibility that the term gives is appropriate, because the commission should have discretion to vary the period for compliance depending on the nature of the requests, which may be various. We believe this more flexible formulation is appropriate as, in some instances, the commission will need to allow a longer period—for example, for the production or provision of documents in some circumstances, such as if there is a large number of them. Equally, a request might be time-critical, particularly if there was concern that the success of an investigation might be under threat if not obtained speedily.

The term “reasonable” is in common usage and, for example, the courts have not had much difficulty in interpreting it. In the light of that explanation, I hope that the hon. Gentleman will not press that amendment as well.

Jonathan Djanogly (Conservative, Huntingdon)

As Members will have noticed, this batch of amendments has taken quite a long time to run through. The amendments are technical by nature, but we are covering new ground here and making new laws. This is the first sitting of several in this House and several in the other place, and it is very helpful that the Minister has given full answers and fully considered the amendments, because that will make both stages on the Bill more productive as a result. To the extent that there was a lot of information, I shall be going away and having a careful look at what he said today.

Michael Wills (Labour, North Swindon)

Because the hon. Gentleman will so generously consider what I said, I want to add one answer. He raised an important question about giving the commission a second bite at the cherry, which I regret that I inadvertently failed to address. The Bill would not allow that, and nor would it allow more than one sanction to be applied for the same offence. I hope that gives him some reassurance.

Jonathan Djanogly (Conservative, Huntingdon)

That is a very helpful clarification. In relation to his latter point, I shall be covering that again through one of my other amendments, so I must revisit that.

I took the point of the hon. Member for Cambridge that some of the amendments could have the implication of making the clause more criminal in nature, therefore making it less adaptable and user-friendly as a proportionate and varied approach from the commission. I shall look at our amendments again in that light, because that is an important point. Of course, the first line for the commission would be to approach people without any criminal or civil penalties whatsoever—just approaching people for information, which is probably the best way to get it.

On that basis, I beg to ask leave to withdraw the amendment.

Jonathan Djanogly (Conservative, Huntingdon)

I beg to move amendment No. 94, in page 14, line 5, leave out sub-paragraph (5).

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: Amendment No. 95, in page 14, line 6, leave out ‘their functions’ and insert

‘an investigation where they have reasonable suspicion that an offence under this Act involving in excess of £10,000 has been committed.’.

Amendment No. 96, in page 14, line 7, after ‘enter’, insert

‘, only with authorisation by a warrant issued under paragraph 3 of this Schedule and when accompanied by a police constable,’.

Government amendment No. 122.

Amendment No. 97, in page 14, line 12, at end insert—

‘(6) For the purposes of this Schedule a person authorised by the Commission is a person who has express written authority of the Commission to act on its behalf and is one of the following—

(a) an employee of managerial level of the Electoral Commission;

(b) a member of a police force in England and Wales;

(c) a constable of a police force in Scotland; or

(d) a member of the Police Service for Northern Ireland.’.

Amendment No. 98, in page 14, line 12, at end insert—

‘(6) A person authorised by the Commission (who is not a police constable) may not use any force to enter premises, but a police constable may use such reasonable force only as is necessary to gain entrance to the premises.’.

Government amendment No. 123.

Jonathan Djanogly (Conservative, Huntingdon)

Amendment No. 94 is moved on a probing basis, to delete paragraph 1(5) of schedule 1, which empowers the commission to enter premises to carry out what is stated as its function under PPERA. Given the vagueness of the provision, we are keen for the Minister to justify fully the need for the powers. From Government amendment No. 122 and their consecutive amendment, it would seem as if they will make some concessions in this area and we look forward to hearing the Minister.

However, we have significant concerns about the proposals for powers of entry for the Electoral Commission. The commission already has powers of entry into political parties’ offices, under PPERA. Paragraph 3 of schedule 1 extends that to provide powers of entry into the premises of anyone who has donated to a political party or regulated donee. That has the potential to erode the willingness of law-abiding citizens to donate to political parties. It would take only one heavy-handed use of the powers in someone’s home or office for other legitimate donors to take fright at the prospect of giving money to political parties. Last October, in a speech at the university of Westminster, the Prime Minister pledged to curtail powers of entry with a new liberty test. I gave details of that in my earlier remarks.

As part of Lord West’s review into powers of entry, the Home Office estimated the powers of entry that are in force. I have voiced my concerns on that issue in a previous debate. A study of state powers of entry by the Centre for Policy Studies, last year, warned:

“In many cases, discretion as to what is considered as reasonable behaviour in exercising an entry power is left to the judgment of those wielding the entry power...Many powers are drafted so broadly that the citizen has little or no protection if officials behave officiously or vindictively. Some carry draconian penalties for obstruction, including heavy fines and prison sentences of up to two years.”

It is with that in mind that I proposed my amendments in an attempt to insert some statutory safeguards into the schedule.

If amendment No. 94 fails and paragraph 1(5) remains in the schedule, it would need to be amended. Amendment No. 95 would insert into paragraph 1(5) a higher threshold test for the commission to satisfy before it could enter premises. A high value is necessary to prevent a fear among small party donors that a bequest in a will, or a cheque for a friend who is running as a candidate in an election, might result in their home or office being invaded by the commission. The amendment would focus the commission’s mind on the abuses and offences that are the most flagrant contraventions not only of the Bill, but of the spirit of transparent party funding. This is a question of balance, but at the moment there is no balance.

Amendment No. 95 would operate a secondary safeguard. Once the commission had satisfied what I will call the threshold value test of £10,000, it would have to prove that it had reasonable grounds for believing that an offence had occurred. It would then have to formulate its arguments and investigations into a cohesive submission to the justice of the peace when applying for a warrant. The idea of entry powers being given to investigate donations of a few pounds is bizarre, if not excessive.

Amendment No. 96 concerns the point of entry and goes together with the safeguards envisaged in amendment No. 95. It provides that entry would have to be authorised by a warrant, and that a police constable would have to be present to ensure that the commission acted within the law. The constable would also provide vital assistance to those acting on behalf of the commission in entering premises. We have no wish to create a cadre of have-a-go heroes under the auspices of the commission. We see the use of powers of entry as the last option available to the commission. Their use should be the nuclear option, to be used when all attempts to elicit the required information, or to co-operate with the individual or group suspected of an offence, have failed. Does the Minister share that view, or does he think that they will be used pre-emptively?

In such circumstances, the owner of the premises might not co-operate. Amendment No. 98 would make provision for the use of reasonable force. In drafting those powers, I have attempted to safeguard the commission, the property and its owner, so that only the accompanying police constable would be able to use such force. There is no need for the commission directly to have such powers. That is the police’s role, and I hesitate to provide anyone else with such powers. Given the unlikelihood of that last resort being used often, I see no practical difficulty in requiring the commission to act in that fashion. Does the Minister agree that such powers of entry would, and should, be used only in a few exceptional cases?

I reiterate that we have only just received Government amendments Nos. 122 and 123, so I have not given them a huge amount of thought. I certainly have not had the chance to consult on them. We think that they pick up on the comments of Peter Wardle, the chief executive of the commission, in our evidence session of Thursday 6 November. When discussing the commission’s current monitoring and inspection powers, he noted that they were typically used to run audits on the documents and records of bodies that receive policy development grants. That came about from a need to assure Parliament that such funds were being spent in an appropriate manner and in accordance with the terms of the grant. He said:

“That is inspection and audit; we do it already and we think that the current powers are adequate for that.”

The Government seem to have taken to heart what he went on to say, and that is to be welcomed in light of the Bill’s other deficiencies and the tight time frame in which it is being rushed through. Peter Wardle’s succinct comments give some understanding of the Government’s rationale behind the amendments. He said:

“We feel that the current powers are adequate to do the job we need to do regarding inspection. One can see why, for completeness, the powers have been extended, but we are not convinced that we need those powers. If Parliament were to have concerns about that particular aspect, we would be relaxed provided that the current powers are preserved so that we can continue our inspection and monitoring role.”——[Official Report, Political Parties and Elections Public Bill Committee, 6 November 2008; c. 43, Q104.]

That is what the Government seem to be attempting with this amendment; they have limited the right of entry under paragraph 1(5) to only the commission’s role as an auditor/inspector of financial documents. We welcome this moment of clarity from the Government and support their main principles and rationale in this regard. Indeed, this amendment echoes the sentiment of many of our own amendments relating to the schedule.

In many ways, amendment No. 97 can be read in line with amendments Nos. 95, 96 and 98. The schedule makes much reference to those people “authorised by the Commission”. In fact, almost all the powers granted to the commission under the schedule are also available to those individuals, yet we can find no reference in the Bill to a definition of who they are. Perhaps the Minister can assist me with this. My amendment No. 97 to paragraph 1(5) proposes solving that problem by specifying who may be authorised by the commission to exercise these powers. I have deliberately limited those powers to high-level employees of the commission, at least, and left it marginal in respect of who else should be included and why. Given that these powers of entry are unlikely to be used in all but the most extreme cases, it is justifiable to expect the commission to send an individual from management. Doing so would ensure that both the commission and the owner of the property take such a person, and their on-the-ground assessment, seriously.

We do not wish the commission to send people, such as its cleaning staff, for instance, to raid premises. Furthermore, given the seriousness of the exercise of this power, the ability simply to authorise anyone is not only worrying but would call into question the commission’s integrity.

David Howarth (Liberal Democrat, Cambridge)

The debate on these amendments comes back to the distinction, which I was trying to make in the previous debate, between the commission’s powers of inspection and its powers in respect of the investigation of criminal offences. The Government are now offering, in amendment No. 123, greater clarity in distinguishing between the two, making it clear that the powers laid out in schedule 1(1) may not be used as investigative powers when investigating a criminal offence. That clearly separates the two. It therefore follows that the amendments tabled by the hon. Member for Huntingdon, which talk about the sum at issue—amendment No. 95, for example—are no longer relevant, because the inspection power is not to do with amounts of money at stake in respect of an offence, but with ensuring that people are complying with more general requirements. Nevertheless, his other points still apply.

If the Government still want there to be a power of entry for the purpose of inspection, they have to think through precisely how that is going to work. What the hon. Gentleman said about ensuring that constables are there, that the powers are clear and that officials of a civil regulator are not resisted with force is still pertinent. The Government need to think that through.

More generally, the Government need to think through what the purpose is of having a power of entry for an inspector. Precisely why do we need inspectors to have powers of entry and under what circumstances, when they are not investigating offences? This brings us back to the point that the hon. Gentleman made about the Electoral Commission’s not being entirely enthusiastic about having these powers and not seeing a great deal of benefit in them. If it is to have such powers, they need to be in more of a civil than a criminal context. If there were a clear link in the system between the failure to disclose a document following a reasonable request by the commission, and a power of entry at some point after that because of failure to comply, that could be justified. However, at the moment I see no link between the process for requesting disclosure and the power of entry, which seems to appear out of nowhere. I ask the Government to reconsider sub-paragraph (5). As the hon. Gentleman said, amendment No. 94 is a probing amendment; nevertheless, this aspect of the Bill needs to be reconsidered.

Michael Wills (Labour, North Swindon)

We welcome these probing amendments. We will have to resist them all, but the fact that we have tabled Government amendments on this issue shows that we are conscious of the need to get it right and to be flexible in doing so. We are not prepared to render the Electoral Commission ineffective, however, particularly as we are expanding and intensifying its role as a regulator. We must ensure that in doing that, we give it effective powers.

We are prepared to respond to concerns. The hon. Member for Huntingdon asked me directly whether we can expect the powers to be used rarely, and the answer is yes. I want to put it on the record that the commission should use them with great care. However, is it important that they exist, not least as a backstop and a deterrent to behaviour that none of us wants to take place.

I shall go through the amendments in order. Amendment No. 94 would delete paragraph 1(5) of schedule 1, which essentially restates the commission’s existing powers in relation to supervised individuals. Those powers allow it to enter premises occupied by specified individuals to inspect documents relating to their income and expenditure, at any reasonable time, for the purpose of carrying out its functions.

Amendments Nos. 95 and 96 would amend the same powers of entry to make them applicable only in connection with an investigation involving more than £10,000, and exercisable only with a warrant and accompanied by a constable. The material difference between that power and the version in the 2000 Act is the range of individuals to whom it may apply. Most notably, the Bill extends the commission’s powers to cover regulated donees—Members of the House and of political parties, as well as candidates, their agents and permitted participants at referendums.

That extension is being made to ensure that the commission can routinely access all the information that it needs to exercise its functions. The key thrust of the Committee on Standards in Public Life’s 2007 report, which was instrumental in the genesis of the Bill, was that the commission is currently not equipped to fulfil its role. More recent events have also brought that to the fore. It has a general function of monitoring compliance with the rules governing elections and politics in this country, and we must not lose sight of the importance of that role. Public confidence in the probity of our political system rests in large part on the faith that scrutiny can command. It is vital that the commission be able to access all the information that it needs to monitor compliance with the rules.

Having said that, real concerns have been expressed in Committee today and on Second Reading about the extent of that power and the intention behind it. We have already indicated our intention to move on the issue, and I am willing to listen further. However, we need to remember that if the commission did not have such a power of entry, it would be entirely lawful to refuse to admit the commission if it sought to inspect party records on party premises. There would be no negative consequence of that for the party concerned, and such a backward step would be seriously detrimental to the transparency and scrutiny of our political system. To remove the power at the very point when we are refocusing the commission on its monitoring role would send out the wrong message and deprive it of a potentially important tool in performing that role.

The amendments would constrain the commission’s existing powers of entry and make them almost identical to the powers in paragraph 3 of the schedule that apply in relation to suspected offences. We believe that that would be a similarly backward step. As I explained earlier, it is vital that the commission be able to access the information that it needs to supervise those whom it regulates. Any credible regulator must have those powers, and it does. It is similarly vital that, where the commission has reason to believe that an offence or other breach of the rules has been committed, it can look into it thoroughly and effectively. Without that power of entry, it would be wholly reliant on law enforcement agencies for investigations, and that would make it impotent in the face of apparent wrongdoing. Merging the two powers and constraining both by the need for a reasonable belief of an offence, together with the need for a warrant and the accompaniment of a constable, would not work in practice. The two powers are for different purposes and, rightly, they are differently constituted.

Amendment No. 97 would require a person entering premises under the power in paragraph 1 to be either a manager at the Electoral Commission or a police officer.

Andrew Turner (Conservative, Isle of Wight)

The Minister appears to distinguish in this matter between everything and nothing. This is not a debate about everything and nothing. In amendment No. 97, it is about £10,000. However, it need not be that amount—it could be £5,000 or £500. I am trying to obtain some kind of explanation that takes account of different scales rather than just yes and no.

Michael Wills (Labour, North Swindon)

I am sorry if I have not made this clear. I hoped that I was saying that we realise people’s concerns. We have indicated that we are prepared to listen to them, and I am happy to go on meeting concerns as best we can. However, I am not prepared to remove the powers. It is not everything or nothing. We are prepared to be flexible about how those powers are exercised. We have already proposed certain safeguards, we are proposing more and we are happy to listen to other suggestions. Nevertheless, we must ensure that the commission remains an effective regulator. That is all I am saying. If the hon. Gentleman thinks that we should be flexible about how we make the regulation effective, I am happy to enter into a dialogue about that. We have already done so, and I will continue doing so. I hope that that reassures the hon. Gentleman.

Andrew Turner (Conservative, Isle of Wight)

I welcome the Minister’s response. The problem is that somebody can be done for having 7s 6d in their pocket at home. I am trying to understand what would require the commissioners to investigate and make a distinction between those with 7s 6d in their pocket and those with £15,000. If there is no difference, the commissioner must get on with it. He has the law. The law, it seems to me, is an open and shut case. The Minister is saying that every opportunity will be given to the commissioners to make the decisions. That is what is wrong.

Michael Wills (Labour, North Swindon)

I am not altogether following the hon. Gentleman. Perhaps he could refer to the amendment that he is talking about. I am sorry if I am missing his point; perhaps he could be a little more specific.

Andrew Turner (Conservative, Isle of Wight)

I am talking about amendment No. 95. When someone says, “You have 7s 6d in your pocket”, the same powers are being used as in the case of a man who has £10,000 in his pocket. What is making that person exercise the powers if it is not the scale of the things in the pocket?

Michael Wills (Labour, North Swindon)

I am still not altogether clear about it, but in so far as the hon. Gentleman mentions 7s 6d and all the rest, that will be a question of judgment for the commission. It is a matter of proportionality. I am not sure that I entirely follow his concerns, but if he would like to convey them to me afterwards, I would be happy to engage with him and try to reassure him.

Throughout, we have tried to strike a balance. As I said at the beginning of my remarks on this, we have to strike a balance between not putting disproportionate burdens on people who are often volunteers and taking a proportionate response to the offences being committed. At the same time, we must be cognisant of the point raised by the hon. Member for Cambridge at the start of his opening remarks that, as politicians, we cannot exclude ourselves from the kind of regulatory constraints to which people in other public bodies are rightly subject. It is a question of proportion and balance. We think that we are trying to strike the right balance in the application of these powers.

As I was saying, amendment No. 97 requires a person who enters premises under the paragraph 1 power to either be a manager at the Electoral Commission or a police officer. Authorisation of the use of this power by a manger at the commission would, in practice, be embedded in the commission’s operation of the power. It is set out in statute that an entry could only be carried out by a senior member of staff in that context and could be restrictive and inflexible. In carrying out its duties, the commission must effectively have the ability to delegate entry and inspection duties to staff below such a senior level.

There is not currently a definition of “manager” in the statute. It might be difficult to interpret what grade of employee would be capable of using the power. Structures within the Electoral Commission might change over time and we think that that is an unnecessary inflexibility. The commission has no intention of using this power lightly. It is well aware that entering a premises is a significant step. We believe that it will operate the power responsibly, as it has done with the existing power to date. It is worth reminding the Committee again that the commission has had these powers.

Jonathan Djanogly (Conservative, Huntingdon)

It might be helpful if the Minister could describe what he thinks an entry situation would involve—what would actually happen?

Michael Wills (Labour, North Swindon)

With respect, I will not pre-empt the judgment of the Electoral Commission on that. However, I shall say one other thing. I know that the Conservative party wants to abolish the Human Rights Act 1998, but if Conservative Members were to listen to my words, they may have cause to revisit it. Article 8 of that Act gives valuable protections in precisely these circumstances. That is why it is a good bit of legislation and why we hope, in time, the Conservative party will come to realise its value.

James Duddridge (Conservative, Rochford and Southend East)

I thought the Minister was saying that politicians ought to be treated equally in these amendments and the clause more widely. Is it not the case that the Electoral Commission would not be able to enter the House of Commons and raid an MP’s office and that they would not be able to go into the House of Lords, unless the Member was perhaps based in 4 Millbank, which is not formally part of the parliamentary estate? If that were the case, their office could be raided. Is that not an inconsistency?

Michael Wills (Labour, North Swindon)

My point related to that made by the hon. Member for Cambridge: we should not seek to remove ourselves from the general constraints to which other people in public life have rightly been subject. That was the general point. In relation to the particular application of the powers, he has rightly identified some issues. As I said earlier, the subject of the susceptibility of MPs to the legislation is an area we are considering at the moment and that we will continue to explore.

I think that we are making some progress. Amendment No. 98 provides that no force can be used by the commission in its use of power of entry in paragraph 1. That is already the case. If the commission were to be authorised to use force to gain entry to premises, that fact would need to be set out in statute. In the absence of such a statement, it follows that the commission cannot use such force. That is evident in the statement given in paragraph 3(3) that a police constable may use

“such force as is reasonably necessary”.

Without that wording in the paragraph 1 power, no force can be used to gain entry to premises.

Jonathan Djanogly (Conservative, Huntingdon)

Is the Minister therefore saying that a constable would have to be present for the power of entry to be exercised? I think that was the implication of what he just said.

Michael Wills (Labour, North Swindon)

If force were to be used. The commission cannot use force under the Bill to effect entry. I hope that the hon. Gentleman will not press the amendment on the basis that it is not necessary.

David Howarth (Liberal Democrat, Cambridge)

I am not sure whether the Minister is saying that, as it stands, the schedule implies that the commission can call on a constable to help it enter premises using force. In fact, some case law suggests that that might be possible. Alternatively, is the right hon. Gentleman saying that the schedule does not authorise anyone to use force to enter premises? [Interruption.] Mention has been made from a sedentary position of paragraph 3(3). The trouble is that that is about investigatory powers and Government amendment No. 123 would separate what is stated under that paragraph from what is stated under paragraph 1. We need more clarity about how the proposals would work together.

The rest of the debate is in Hansard.