My Lords, the noble Lord, Lord Wallace, regrets that he cannot be here to introduce this stand part notice. He has asked me to do so in his place. The noble Lord, Lord Blunkett, was here and was very anxious to speak in this debate, but he has had to apologise because if he had spoken, he would not have been able to listen to the whole debate.
We started this debate rather a long time ago. In one sense, all the rhetoric has been played on both sides. I am not necessarily going to be unable to use a little bit of rhetoric, but in answer to this wonderful exchange between the noble Lord, Lord Butler, and the noble Lord, Lord Collins, about the problem and the answer, I suggest that the problem that is being faced, summarised in the way that the Minister put it, is a certain loss of confidence in the Electoral Commission’s ability to exercise its responsibilities. That may be wrong, but if it is right and that is the problem, I respectfully suggest that Clauses 14 and 15 of this Bill are emphatically not the answer to that problem. Once again, I am sorry to trespass on something which I rabbit on about in the Chamber, but we are vesting power in the Executive, and that is always dangerous.
These are matters which should be outside party politics. I recognise the difficulties of making this utterly immaculate, but how our elections are conducted and handled should, as far as possible, be clear of
party-political pressures or Executive pressures, influence, control, or power. If they are subjected to any of those, they damage public confidence in how the Electoral Commission will work.
I need to go back to the founding principle, which I found in the 1998 report:
“An Election Commission in a democracy like ours could not function properly, or indeed at all, unless it were scrupulously impartial and believed to be so by everyone seriously involved and by the public at large.”
As a follow-up to that, the CSPL review of the Electoral Commission in 2007 said that
“any system … must … protect the Commission’s independence and impartiality from the possibility of undue influence for partisan political or electoral advantage.”
It is there that Clauses 14 and 15 fall down.
I shall go through the Bill to pick out one or two provisions. I suggest that every one of these provisions in Clauses 14 and 15 is dangerous in the sense that they increase the influence of the Government of the day over the Electoral Commission. It is no good just taking them as individual provisions; they need to be looked at as a package. Let us start with new Section 4A in Clause 14—if anyone is bothering to look, it is on page 20—dealing with the strategy and policy statement, which is a new idea. The clause says:
“The Secretary of State may designate a statement … prepared by the Secretary of State that sets out … strategic and policy priorities of Her Majesty’s government”
in relation to elections. By definition, that highlights whose policies and priorities are going to be included. Then it sets out
“the role and responsibilities of the Commission in enabling Her Majesty’s government to meet”
the Government’s own strategic and policy priorities. You do not need to look much further to see where undue influence is likely to be increased.
Then the Electoral Commission, which everyone agrees should be independent of government—I think that at Second Reading everyone eventually agreed with that—is required by statute to enable the Government to achieve their priorities as they relate to elections. I told the cynic in me last night, “Don’t say this”, but we have been waiting an awfully long time so I am going to say it anyway: I thought the priority of most Governments was to win elections. Still, I will not repeat that; it is cynical of me.
Let us look further. The Secretary of State can use the statement to issue guidance relating to other matters for which the Electoral Commission already has, or may in future have, statutory functions, whether by primary or secondary legislation. The noble Lord, Lord Hodgson of Astley Abbotts, is in his place, and he is not going to let the Government forget about the significance of the misuse, as I would describe it, of guidance. Using guidance as a power rather suggests that it would be extremely difficult for the new Electoral Commission working under these new arrangements simply to ignore the obligation to follow the guidance; the guidance will be there and the commission will be obliged to look at it. How lawful that would be if it went to a matter of judicial review, I will leave to the noble Lord, Lord Hodgson. We really need to look at those two terms together.
The suspicion about these clauses, a suspicion that has been ventilated around the House—although not the whole House—is due to the total absence of any formal or public consultation on the issue. If this were happening in another country that we thought was a democratic one, true to the principles of democracy and the wide franchise, we would be very worried about what was happening to our democratic friend.
We have spent a long time looking at new Section 4B in Clause 14. What is the obligation of the commission? It says:
“The Commission must have regard to the statement when carrying out their functions”—
that is, the Government’s prepared statement setting out their strategic and policy priorities. That is the only order that is made in the legislation. Sometimes we have legislation where the organisation or body, whatever it might be, is required to have regard to some statement or other or to some principle in the legislation, but it is rare—I do not say that it never happens because that is a word that I never use—for it to have no other responsibility. But this provision is all that the commission has to have regard to, in the express language of new Section 4B.
I underline that that provision is not one of a list of factors that the commission has to bear in mind. It does not identify any other factor to be taken into account. It does not provide a way out for the Electoral Commission to say, for example, “We’re not obliged to follow the statement, and we will not, because that would influence us into making a decision that we think would be electorally unfair. It is motivated by political advantage.” So that is a very stark responsibility. I rather enjoyed the observations by the noble Baroness, Lady Meacher, this morning about how the world really looks if you are in the position of someone who is “having regard to” government policy. The “must have regard to” is clear and unequivocal, and there is no room in the legislation for any other consideration being provided for. So we have “Her Majesty’s government” instead of “Parliament”, and no other consideration except the statement once it has been designated.
I now turn to one of the defences put up by the Minister: the consultation process. We heard a lot about the consultation process this afternoon. I will tell noble Lords what I think about it because there were times when I had to look at legislation that said the Lord Chief Justice will be consulted. It was completely valueless in terms of any action. The Secretary of State can consult. “Hello, my noble Lord, Lord Collins. What do you think of this Bill? You are very worried about it? I have taken a note of that, but I will now write it exactly the way I like it.” That is consultation. It would count as consultation and pass any judicial review as a proper form of consultation.
To look a little further, as a controlling element therefore of shielding the Electoral Commission, which is after all what we are supposed to be doing, why does everybody think a fig leaf is elegant? It is not elegant; it is transparent, and the sight is not a golden one. The obligation is to consult. There is no requirement for concurrence or agreement. Obviously, everyone can make non-binding suggestions, but they provide absolutely no form of protection for the Electoral Commission.
The Secretary of State has to consult and then decide what he or she thinks is necessary. That is not a protection for the Electoral Commission. It is a nice idea. It looks good and polite and British, but in terms of power, which is what we are discussing, it has no impact. I cannot help reminding the Committee—I said this at Second Reading—what PACAC had to say about this issue:
“We recommend that the Bill be amended to provide that the Electoral Commission is able to depart from the guidance set out in the Statement if it has a statutory duty to do so”—
well obviously, but the committee adds—
“or if it reasonably believes it is justified in specific circumstances.”
And here is the rub:
“This amendment is necessary to give effect to the Government’s stated intention that the Statement will not amount to a power to direct the Electoral Commission, and to protect the Electoral Commission’s independence.”
Well, that is pretty stark. I wish I had thought of saying that myself but, as PACAC said it, I am very happy to adopt it as my own. We should note that it is ultimately a matter for the Secretary of State. That is new Section 4C.
We can omit new Section 4D, because that deals with the five-yearly review. New Section 4E, on which the noble Lord, Lord Scriven, has spent some time, is in many ways the most pernicious part of the whole Bill. It states:
“The Secretary of State may revise a statement designated”.
He can do it on his own initiative and if the commission requests it. It is a dispensing power, because new Section 4E(4) states:
“The Secretary of State may determine … that section 4C(2) (consultation requirements) does not apply in relation to the revised statement.”
In 1688, we kicked out the King. We got a new one, we got a new Queen, we got an Act of Settlement and Parliament was sovereign at last and nobody liked the disapplication or dispensing power.
But can we look a little further at this, at the Secretary of State’s “own initiative” without notice? The Secretary of State is not obliged to consult anybody. He “must give notice”—that is, after he has made up his mind—of what he proposes to do, and
“must consider any representations made by the Speaker’s Committee”.
That is even less than consultation; he “must consider any representations”. It is very strange, is it not?
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I would say that the Speaker’s Committee is, in the House of Commons at any rate, the parliamentary body responsible for making sure that the electoral system is run fairly, properly and equally for all the political parties engaged in it. Yet the best it can do if there is a revised statement is to make representations which shall be considered. The committee can object—hurrah! If it objects, what then? At last, the Secretary of State has to give Parliament his reasons for determining what he has determined in his statement when he revises it. Do we think this is too much influence? Do we think this is clear and clean of any influence, any possibility of influence or any possibility of pressure? Of course we do not.
Finally, coming to Clause 15 on the examination of the duty to have regard to the strategy and policy statement:
“The Speaker’s Committee may examine the performance by the Commission of the Commission’s duty”—
not how it is conducting its overall responsibilities, which would be fair enough, but how it is complying with its duty to have regard to the strategy and policy statement. That is rather serious, is it not?
We then turn to examine what the Speaker’s Committee has to do once it examines it. Does it tell the Electoral Commission, “You haven’t complied with paragraphs 9, 15 or 22”, to which it might say, “Well, yes, we haven’t, because we think that’s politically advantageous to the Government”, or to whoever it is. That will not do. Where in the Act of Parliament does it say that that is all right, acceptable and should be allowed? What we have instead is one of the safeguards for the independent commission in the consultation process disappearing when we come to the revision of the statement, which can take place at any time. I do not want to enter into a discussion—anybody else may—about whether it is five years, three years or nine months. Whenever it happens, this is the process. We have been assured—I have read assurances—that it will be done only for minor things of no real importance, but is that not the problem? Tomorrow it may be of no real importance, but five years down the line it may be of huge importance. We just do not know.
I have another problem, which I had not spotted when I got ready to speak at Second Reading, arising from what the Speaker’s Committee is doing when it examines the way in which the Electoral Commission has been exercising its responsibilities. I am not entering into a discussion—I could, but we could go on too long—about whether the Government of the day have a majority on the committee. Until this proposal came before us, it did not seem to me to matter very much. The Speaker chooses five Members of the House of Commons plus, of course, himself, and then there are three more people. Of those three, two are Ministers. The Government at the moment is a Conservative one; even if we did not have a single Conservative Member of the Commons who was not a Minister on the Speaker’s Committee—that would obviously not arise, but let us just assume it for a moment—two Conservative members of that committee would be there, examining the way in which the Electoral Commission had been carrying out government policy. The phrase “judge in their own cause” comes to mind, and that is not a healthy way for a democracy to work.
I respectfully suggest that these two clauses are potentially dangerous. On any view, they increase the influence of the Government of the day over the Electoral Commission and would damage the public confidence in the independence of the Electoral Commission. Both those considerations are vital, and so I beg to move.