Elections Bill
Thursday 10th March 2022
(2 years, 8 months ago)
Lords ChamberElections Act 2022 View all Elections Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 96-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (10 Mar 2022)
Lord Collins of Highbury
“(5) This section expires at the end of the period of 12 months beginning with the day on which the Elections Act 2022 is passed.”Member’s explanatory statement
This amendment would prevent a strategy and policy statement more than 12 months after this Act is passed.
Lord Collins of Highbury (Lab)
My Lords, on behalf of my noble friend Lady Hayman, I will speak to this amendment while she searches for her glasses.
These are classic Committee amendments in which we try to probe exactly what lies behind these clauses and in particular the clause that we do not agree with that we debated earlier. It is important to address the question that the noble Lord, Lord Butler, asked: what is the question to which this clause gives an answer? It is not clear, and I hope that we can address that with this amendment and the series in the following group to try to elicit some answers.
I was intrigued by the explanation of the noble Baroness, Lady Noakes, that the statement is about the political environment that the commission operates in. That can change rapidly, not least the closer we get to a general election. Now that we do not have fixed-term Parliaments—not that that really determined when a general election could be held—it is not clear what timetable would be involved in this requirement to produce a statement, which the commission “must” take cognisance of. Let us have some answers from the Minister.
I will repeat the question asked by the noble Lord, Lord Butler: what are we trying to solve here? What is the commission not doing that the Government think it should be doing at the moment? It is not clear. I have not heard a single criticism about the failure of the commission to carry out its statutory functions. I have heard political criticisms. The noble Baroness, Lady Fox, is fortunately not in her place so I will say what I want to say. I am prepared to accept that Parliament agreed to a referendum, and Parliament will abide by the result of that referendum and the Government do so, but I am not in favour of referendums. I am in favour of parliamentary democracy. I know who used referendums a lot: Hitler used referendums to store up his power, and so does Putin. It is important to understand what we are talking about here, which is a body that oversees statutory functions in the conduct of elections.
Therefore, with these probing amendments we are seeking to know—despite the detail of what the clause says—how frequently the Minister thinks these statements will be issued. When will the first be issued? Will it be six months before the next general election? Could it disrupt the way that people, political parties and civil society react to the general election? Let us hear it. How often does the Minister think this should be reviewed? The Bill says that this is something we should expect every five years and that it will fall into the cycle of elections, but our political environment is not as stable as that, so there may be other issues that prompt this. I would like some answers to those questions.
Also, what is the Minister’s expectation for how long it will take to produce the statement and the requirement for consultation? What does he expect between the start of the process and its end? What does he think the implications will be not only for the Electoral Commission but for the political process itself and the way political parties operate? It is really important that we get some answers to those questions.
I turn back to the point the noble Baroness, Lady Noakes, raised. I have been intimately involved with the Electoral Commission, certainly for the three-year period I was general secretary of the Labour Party. One of the innovations I thought was really good was that the Electoral Commission has the experience of people with quite detailed knowledge of the electoral process. It has members who are aware of the way political parties operate. It is not working in isolation; it has that experience.
One of my roles was to nominate somebody to the commission. It has a Member of this House, the noble Lord, Lord Gilbert, who is a friend of mine. Even though we are in opposite parties, we have collaborated in better understanding the rules and regulations that operate on political parties. Sadly, the noble Lord, Lord Gilbert, cannot be here this afternoon but I think all members of the Electoral Commission, even though they are nominated—some of them by political parties—take their responsibilities and independence very seriously. I think if he were here the noble Lord, Lord Gilbert, would explain that that was why he did not sign the letter from the Electoral Commission; he is a Member of this House, and it would perhaps have been inappropriate. But that does not stop him taking his responsibilities on the Electoral Commission seriously.
I do not get it; I really do not get what this is all about. What are the Government trying to correct or do? There are mechanisms now, as we heard in the previous debate, about accountability, the Speaker’s Conference and representations. Of course, just as importantly, political parties nominate to the commission—not just the Conservative Party or the Labour Party, but the Lib Dems and the Scottish nationalists have representation on that body. It is independent representation, but they take their statutory responsibilities seriously.
Let us get some answers if we can, not only to the question of the noble Lord, Lord Butler, but also to when the first statement will be produced. How long will it take? How close will it be to the next general election? What impact will such a statement have on the conduct of that general election? These are vital questions, irrespective of a future debate on whether the clause stands part. We need answers to these questions because they will determine our attitude to whole aspects of this Bill. I beg to move.
Baroness Noakes (Con)
My Lords, the noble Lord, Lord Collins of Highbury, has ranged rather more widely than the contents of the two amendments in this group, but I respect that Committee is an opportunity for probing detailed aspects. I want to speak only to the second amendment about the length of time you would normally expect a statement to exist.
We have to see these as strategic statements; they are about strategies and policies. Too short a timeframe simply would not work. The presumption in the Bill is five years, which is a reasonable medium-term timeframe for giving some stability, with the option for reviews earlier on various grounds listed in the Bill. I support the general concept of five years being a good starting point, recognising that there can be occasions when this has to be revised. But they should not be picked up and looked at every year or in the run-up to an election, because they should be dealing with issues that have a longer duration.
Lord Collins of Highbury (Lab)
Can I just ask the noble Baroness a question? If she looks back over the last 20 years, or even over the period of the Electoral Commission’s existence, what have the gaps between general elections been?
Baroness Noakes (Con)
I do not think that is a relevant question because I do not believe the statement is going to be used to try to fine-tune what is done in relation to any particular election. It will be about more strategic things like getting more participation from certain groups in the democratic process and those sorts of issues.
Lord Collins of Highbury (Lab)
I am sorry to interrupt but I think this is an important dialogue to have. We bandy around the words, “strategy” and “long-term strategy” but what we have not had from the Government—though the noble Baroness has attempted to give us an answer—is the answer to: what is behind this clause on this statement? Why do we need this statement?
I agree with the noble Baroness that one of the important things, and what this Bill should be about, is how we increase participation. The noble Lord, Lord Hodgson, is unfortunately not here, but this Bill should be about what we do to increase participation in our democratic process. How do we ensure that more people are able to participate and what do we do to take down the barriers that inhibit participation? If the noble Baroness is saying that this statement will be about that, why are those things not in the Bill?
Baroness Noakes (Con)
I am going to let my noble friend the Minister answer all this in detail because I am not a government spokesman on this. I was merely offering my opinion on the timeframe. When we get to the stand part debate, I am going to offer some other opinions about why these statements are useful in the context of regulators.
My concern is to see that these statements are strategic in nature and that means not short term in nature. They should be seen in that context. The timeframe of five years is fine for that, but I am going to leave my noble friend the Minister to respond in more detail to the broader questions that the noble Lord has asked.
Lord Rennard (LD)
My Lords, these amendments may lead to some mitigation of the effects of the Government taking control of the strategy and policy of the Electoral Commission if the Bill is passed in its present form. If Clauses 14 and 15 are not taken out of the Bill, as they should be, we can still limit some of the damage by preventing the party in power continually changing the statement in accordance with its own interests.
Amendment 3 would not allow a new statement 12 months after the Act is passed, while Amendment 13 tests how often the Government might seek to change such a statement. As the noble Lord, Lord Collins, pointed out, the amendments probe the Government’s intention in relation to the timings and processes of the proposed strategy and policy statement to which the Electoral Commission will be subject. The governing party appears to want to emasculate the role of the independent watchdog.
Lord Butler of Brockwell (CB)
My Lords, since the Minister will no doubt address the question that the noble Lord, Lord Collins, raised, perhaps I may just add a supplementary. In addition to asking what problem Clauses 14 and 15 address, why is a strategy and policy statement thought the necessary solution to it?
Lord Kerslake (CB)
My Lords, may I add a further supplementary question? In the Written Ministerial Statement, the Minister in the other place, Chloe Smith, said:
“In recent years, some across the House have lost confidence in the work of the Commission”.—[Official Report, Commons, 17/6/21; col. 11WS.]
Perhaps the Minister can tell us whether that is the view of some across the House of Commons or of the Government? Is this change about an issue of confidence or is it something different?
Lord Scriven (LD)
My Lords, it is interesting to follow the comments of the noble Baroness, Lady Noakes, who says that this is a strategic statement that is there for five years and not for revision. If we look at page 24 of the Bill, new Section 4E says that there is a power to revise the statement and that the Secretary of State may revise the statement at any time. It goes on further to say that:
“The power under subsection (1) may be exercised … on the Secretary of State’s own initiative”.
If this is a strategic statement, it then goes on to say about revision on page 25 under new Section 4E(4):
“The Secretary of State may determine in a particular case that section 4C(2) (consultation requirements) does not apply in relation to the revised statement.”
The view of the noble Baroness, Lady Noakes, is that this is a five-year strategy where the Secretary of State does not want to intervene because it is about the long-term view of the commission. But the Secretary of State can solely decide that not only are they going to revise but that no consultation is needed. May I ask the Minister under what circumstances and for what purpose would the Secretary of State wish to revise the strategy and policy statement? Under what circumstances would the Secretary of State deem it inappropriate to consult on the new statement, particularly if we follow the view of the noble Baroness, Lady Noakes, that this is a strategic view where the Secretary of State does not need to get involved on day-to-day issues because the strategic direction is set for five years? Why have the revision policy and, particularly, why can the Secretary of State determine alone to change the statement without consultation?
Baroness Noakes (Con)
My Lords, if I may respond to that, I was careful to say that it a broad presumption of five years and that the Bill allows for other opportunities, which I am sure my noble friend the Minister will explain. The noble Lord failed to deal with the fact that the revision can be considered at the request of the commission as well—it is not just a one-way street—and that is provided for in new Section 4E.
Lord Scriven (LD)
If noble Lords will allow me, the point I was raising was the basis on which the noble Baroness said that it was a strategic five-year statement and therefore the noble Lord, Lord Collins, had got the concept wrong. If it is a five-year statement that gives a long-term vision for the commission, the Secretary of State should not have sole power to revise without consultation. That is the point that I was making. It is in the Bill.
Baroness Hayman of Ullock (Lab)
My Lords, on consultation, may I just come back to the Government’s response to the committee’s fifth report, which I read out earlier? They said that suggestions to set minimum timeframes for consultation were disproportionate and unnecessarily burdensome. This is just not good practice. We must have proper consultation when we are looking at anything that changes our governance procedures.
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, I am grateful to the noble Lord opposite for tabling these amendments. Let me say that it is entirely proper, legitimate and normal to table probing amendments. There is a limit to which probes will get answers because I am not going to be led into hypothetical sets of circumstances.
We all know that electoral law and practice evolves over time and things happen that are inconceivable at the time we may happen to legislate. Who would have conceived, for example, of the practices seen in Tower Hamlets in those local elections? We have collectively—I think there will be agreement across the House on this—moved to adapt the law and our practices and to respond to change. It is reasonable that there should be some flexibility. I do not wish to get into a detailed challenge—
Lord Collins of Highbury (Lab)
I was intimately involved in Tower Hamlets. I was general secretary and suspended the mayor from membership of the party at the time. Can the Minister answer the specific question? The law at the time dealt with abuses in Tower Hamlets; in what way will this statement address any inadequacies? I am not even sure that there were inadequacies in the law because it was able to address the problems in Tower Hamlets.
Lord True (Con)
My Lords, I hope the statement and some of the things that the Government suggest might be in it will be considered unexceptionable when we come to it. I hope people will examine it. I was venturing some response to the question of why anyone should consider that anything needed to be said to the Electoral Commission. I was about to preface it—before the noble Lord quite reasonably got up—by saying that I did not want to get into any kind of generalised criticism of the Electoral Commission because one respects its independence and its role.
Since I have mentioned Tower Hamlets, this was a case where the Electoral Commission did not act in a particularly appropriate way. It did not check that the Tower Hamlets First party even had a bank account. It did nothing to tackle the activities of the corrupt mayor. Election judge Mawrey noted in the Tower Hamlets case:
“It can be said that because the Commission rubber-stamped the application for registration it may be inferred that the Commission was satisfied. All one may say, with the greatest of respect for the Commission, that the enquiries into the structures of”—
Tower Hamlets First—
“cannot have been excessively rigorous.”
The election judge was critical in that case.
I am sure that the Electoral Commission has learned lessons from that, and one would hope that this would be the case, and I do not make any imputation or reference to existing members of the Electoral Commission. The Committee on Standards in Public Life said in its report,
“In the course of gathering evidence”—
and this is not me or the Government, this is the committee—
“we heard some affecting personal stories of a small number of MPs and campaigners who have been regulated by the Electoral Commission. Their experiences were clearly extremely difficult and stressful – both personally and professionally – and we think there are changes that can be made to improve the way the Electoral Commission approaches its role.”
We may have differences about how we should proceed in a set of circumstances but, if I am asked if there is any evidence that in the past perhaps not everything was perfect in that world—well, I have just given two examples that are not from the Government. One is from a judge, and the other is from the Committee on Standards in Public Life.
Lord Collins of Highbury (Lab)
May I interrupt again? The Minister jumps from the specific to the general and keeps saying that this statement is going to be innocuous. The noble Baroness, Lady Noakes, says it is going to be about five-year plans and longer-term strategies, and then the Minister talks about specific illegal acts and the failure to address some of them. We are jumping around. If there are problems—and this is why I jumped up before—particularly on postal votes, let us put in laws to address them. But we are not talking about new laws and new regulations; we are talking about how the Electoral Commission operates within its statutory functions, and the Government now want to interfere in that. This is the issue that concerns everyone. The Minister jumps from broad, innocuous strategy to specific regulation—very dangerous.
Lord Stunell (LD)
I appreciate the Minister giving way. I hope that his response will include a little more about what the Committee on Standards in Public Life recommended as the solution to the problem that the Minister quite rightly drew to our attention, because the solution recommended by the committee to the Government is not included in the Bill, and the solution brought forward by the Government is condemned by the committee.
Lord True (Con)
I was answering the question I was asked in Committee; I was asked in a supplementary question, and then in another, to give an example of where there has been a complaint about the Electoral Commission, so I tried to serve the Committee by giving two answers. Perhaps that was ill-advised, but I am happy for them to stand on the record. I did say that we would be discussing on this legislation what the appropriate response is. We think that the measures that the Government have put forward, and we will debate this shortly, are proportionate and reasonable, and they are not a direction. When we see what is contained therein, they neither constrain the role of the Electoral Commission, nor direct it.
The Government oppose these amendments. Amendment 3 proposes that the power to designate a statement expires after 12 months of the Act being passed. It is unclear if the intention is that the initial statement should be designated within 12 months or that no statement should be enforced after 12 months. If the limitation is intended to attach to the initial statement, the Government’s view would be that it would add unnecessary pressure to the timetable and could curtail the amount of time afforded to the consultation.
I cannot anticipate the length for production—I was asked that, and I do not think I can respond in writing on this, because it is provisional, in a sense. Parliament has to agree the concept first, then the consultation has to proceed. It does say within the Bill that, in a subsequent review, the review period would be nine months; that is what is envisaged in the case of a review, but in saying that I am not making any commitment on progress, should Parliament agree to these procedures. I am not in a position to do so. If the statement, as drafted, prevents any further statement or revision beyond the initial 12-month period, we could not accept that, because we believe that it is important that, subsequent to any additional statement that Parliament may agree, the Government of the day and the Secretary of State should have the power to make changes and to review to ensure that it remains up to date with any emerging concerns.
Lord Collins of Highbury (Lab)
Before the noble Lord sits down, I wish to say that one of the issues that I raised, and why these probing amendments are there, is to ask not only how quickly and regularly the report will be produced, but what the implications are of a report being produced very close to a general election. Does the Minister think that there are any implications to that, and that it may impact on the political process, particularly how political parties operate?
Lord True (Con)
When one looks at the areas which are covered in the indicative proposals, I do not think that there are things that would seriously affect the conduct of elections. The Government submit that these are matters which, in the current circumstances, would be of ongoing importance—improving accessibility, increasing participation, combatting foreign interference in UK elections and improving transparency.
Lord Collins of Highbury (Lab)
Just on that last point—I keep interrupting, but this is Committee and I think it is important that we get clear answers—if a strategy paper said it is okay to take money from Russian donors, would that not have an implication for a general election? Would it not impact on certain political parties? Maybe even look at its reverse: perhaps certain money from trade unions should not be accepted. The funding of political parties is a critical issue and, if it is in this indicative statement, it will have huge implications for a general election.
Lord True (Con)
The permissibility of donations is a matter of the law of the land, and we will be considering the law on political donations later. As the noble Lord will see, the issue is publishing clear and easily accessible information about spending and donations, which is a job done by the Electoral Commission, but it would probably be prudent to look at foreign interference at this time. I think that would be supported across the House. I give you that as an illustrative example.
Lord Scriven (LD)
Before the Minister sits down, I must press him further to answer the two questions that I asked. First, this is a strategic document: what would a Minister require, on his or her own initiative, to change a strategy? Because a strategy is there for the long term. It is not about day-to-day issues. Regardless of what happens, you keep to your strategy—that is one of the key issues of leadership. Could the Minister give the Committee examples of something, rather than general “unforeseen circumstances”, that might happen that would require a Minister to intervene to change a strategy?
Secondly, the Minister did not answer my question about why they would wish to do that under new Section 4E(4) without any consultation.
Lord True (Con)
My Lords, the Government are setting out a structure in which there would be a regular review. As I outlined, I am not in a position to answer hypothetical questions about a future that might arise. I did say that things have arisen that require a response, and which I am hoping to persuade Parliament in the course of this Bill, following the Pickles report, that we should respond to. Such things might occur in the future, but the structure and timing the Government are setting out are those set out in the Bill. I am not going to be led into hypothetical consideration of what might or might not happen in the future.
Lord Scriven (LD)
Could the noble Lord answer the second point: why, regardless of any change, would you wish to change something without any consultation? That is a key issue. What would stop consultation taking place on an issue that a Minister decided to change in a strategy?
Lord True (Con)
My Lords, I am sure that any Government’s preferred position would be to consult, but the Government believe there is a need for a contingent power here. If noble Lords object to that, no doubt they will lay down amendments.
Lord Collins of Highbury (Lab)
My Lords, this has been an extremely useful exercise. Rather than answers, we have more questions, which I think we will pursue in later debates in terms of not only clause stand part, but some of the other elements of the Bill we need to address. Certainly, if we end up on Report with this clause still in place, we will need to come back with strict and clear amendments, particularly on the fundamental issue of consultation. Despite a very useful debate, I beg leave to withdraw the amendment.
Lord Collins of Highbury
“(5) A statement designated under this section must not be published until a draft statement has been approved by a resolution of each House of Parliament.”Member’s explanatory statement
This probing amendment would mean that a draft strategy and policy statement must be approved by both Houses of Parliament.
Lord Collins of Highbury (Lab)
It is me again. Here, we are trying to better understand what the Minister means when he repeats reassuring paragraphs, not least, “This is not the Government imposing on the Electoral Commission; this statement will be subject to Parliament, and there will be consultation”—although, there will be circumstances where there will not be consultation, which is even more worrying.
We are trying to probe exactly how engagement and approval of both Houses of Parliament will work. This is important, because in the other place the majority rules, which means there is sometimes a lack of scrutiny and attention to detail. The Government have a majority and the Executive, if they take an opinion, try to force their view through the House of Commons, naturally, by the function of the majority party. So, scrutiny gets squeezed. This was one of the interesting things about the scrutiny the Commons did on this Bill in Committee. It was done in two and half hours. There were some really important clauses on funding that got no consideration at all, which is why the role of this unelected House—again, the noble Baroness, Lady Fox, is not in her place—is so vital. Our job is to scrutinise, to ensure that when legislation is passed by the majority in the other place, it is fit for purpose, does what it is intended to do and does not have other implications.
These probing amendments try to push the Government into giving clearer answers about how Parliament is going to engage in the process of this statement. We are also seeking a clear position on the role of this House in scrutinising and ensuring that the majority party of the Executive is not able to force things through, which can have huge implications. I was going to say it can have huge implications for the Opposition parties, but of course, it may also do so for the majority of the votes cast in our democratic process.
I come back to the fundamental point that many noble Lords have mentioned. Changes to our electoral system should be made by consent and in a way that all political parties can accept—these are the rules, and we are all going to follow them and abide by them. As soon as an Executive start pushing things through that favour their party and cause damage to the other parties, that is a very dangerous road to go down. We are trying to ensure through these amendments that changes in statements are not just written and approved by the Executive and forced through by the Whips of their party, but are subject to proper involvement, engagement, consultation and approval by Parliament, because we are a parliamentary democracy. I beg to move.
Baroness Noakes (Con)
My Lords, I am going to start by banking an agreement with the noble Lord, Lord Collins of Highbury. I completely agree, as I think the whole House does, that the quality of scrutiny in the other place underlines the importance of what happens in your Lordships’ House. Having banked that, I could not understand why these amendments have been tabled. Amendment 4 asks for the strategic and policy statement to be approved in draft by each House—but that is exactly what proposed new Section 4C calls for. It calls for the Secretary of State to lay a draft before Parliament that cannot be designated until it has been approved by each House of Parliament. These are standard procedures in each House, including, importantly, your Lordships’ House. I understand why the noble Lord might want to seek a way of saying that we want more than the normal procedures that apply to secondary legislation, but these amendments do not get any closer to that. They simply duplicate in a different place what is already in the Bill, both for the initial statement and for the revised statements.
Lord Collins of Highbury (Lab)
I accept the point the noble Baroness is making, but I think everyone in the House is always concerned about the way in which secondary legislation is implemented. Even though we have the opportunity to scrutinise it, it is extremely difficult ever to change it; and although we have certain powers in secondary legislation, it is not clear that they will apply to this statement. I am not very keen on using fatal motions, for example. Is that going to be an opportunity for this House? That is why we are asking these questions. These are probing amendments that do not simply say that this is the position we want to see. However, the principle of proper parliamentary engagement is one we want to ensure, and doing so might mitigate some of the aspects of this proposal.
Baroness Noakes (Con)
I completely understand that point, but the noble Lord is raising something much broader, which goes beyond the existing procedures we have for handling secondary legislation. I agree with the noble Lord that we should have a full and proper debate about whether there should be alternatives to the nuclear option. However, that is not a debate for this Bill.
Baroness Jones of Moulsecoomb (GP)
My Lords, we can all agree that the Government are constantly overreaching themselves and trying to accrue more and more powers. It is perfectly acceptable to try to ensure that the Government do not do so in this case. The Electoral Commission must be independent of both the Government and Parliament. This is a way to avoid any sort of conflict of interest for all MPs and, at times, for us. While we normally support any efforts to subject decisions to parliamentary scrutiny, it would be a false solution in this case. The strategy and policy statement must be removed from the Bill absolutely and entirely, rather than simply adding Parliament’s conflict of interest to that of the Government. We heard from noble Lords earlier who said, “Let’s get rid of the Bill”. Let us get rid of as much as we can on the way.
Lord Stunell (LD)
My Lords, the merits of the amendment are secondary to the replies that the Minister gave on the previous group of amendments. I thought that he might like a second go when responding to this group. I sum up the Minister’s defence of the strategy statement as standing on two legs. The first leg is that it is vital to the proper conduct of future elections that the Electoral Commission has a government-sponsored strategy statement in its toolbox. The second is that any strategy statement which this Government could devise would be so bland, inoffensive and harmless that it would make no practical difference to the way in which elections are conducted. That was a phrase the Minister used in his reply to the noble Lord, Lord Collins, in the previous group. Would the Minister like to have a go at seeing which of those two legs he wants to stand on when replying to this group?
Perhaps he could also scoop up the third argument he deployed: that flexibility is essential and speed may sometimes be needed, and this would justify missing out any consultation. He further said that every Government would want to see consultation take place. I can think of quite a few Governments who very much did not want consultation to take place. It is very commonly the job of Oppositions to remind Governments that consultation is a necessary preliminary to getting good legislation. I am delighted if, somehow, he has been taken in by the idea that every Government would want to see consultation. However, I would remind him that even during the coalition’s time—when I saw behind the scenery slightly more than I was expecting—it was a constant fight within departments for my colleagues and I to persuade his colleagues that consulting properly before legislating would be a good step forward. I hope he will be able to reconcile his two conflicting arguments about why we need it, while tackling and giving a response to the circumstances in which avoiding consultation might be—at least in some way—justified, rather than simply for the convenience of a Government at the time.
Baroness Hayman of Ullock (Lab)
My Lords, just on that point on consultation, I suggest that the Minister, when he responds, thinks of the expression “more haste, less speed”. Rushing things through without proper consultation can lead only to difficulties and the issue being revisited at a later date.
Lord True (Con)
My Lords, we had a debate on the previous group. Despite the beguiling invitation of the noble Lord, Lord Stunell, I am not going to rehash that debate. I am certainly not going to accept advice from those Benches on how many legs I should stand on at one particular time. They often seem to have about five or six legs, in my campaigning experience.
The Government oppose these amendments. I understand that they are probing, but I can reassure the noble Lord that we do not consider them necessary because, under the Bill as we propose it, the approval of Parliament—the whole of Parliament, both Houses—is required when a statement is created or whenever it might be revised. That is, as my noble friend Lady Noakes said, there in the Bill. That will ensure that the Government consider its views and then gives Parliament the final say over whether a statement takes effect.
This measure, in our judgment, will improve the accountability of the commission to the UK Parliament and ensure that Parliament, in the last resort, remains firmly in control of approving any statement. That is why the Government have proposed the affirmative procedure in the Bill for the approval of a new or revised statement and I can certainly confirm for the noble Lord that any statement must be approved by both Houses, including your Lordships’ House, before it can be designated. Therefore, we think these amendments are unnecessary.
Lord Beith (LD)
The Minister is relying so strongly on the case that Parliament would have final control over whether the statement was acceptable, he must be assuming that each House has the capacity to turn down and reject the statement. Can we take it that he will not, in those circumstances, say that it is somehow unconstitutional for this House to say that the statement is in defiance of the principles of democracy and damaging to our electoral system?
Lord True (Con)
My Lords, again, I am not going to be led into a wide and potentially very interesting debate on how your Lordships would behave in regard to any legislation, including primary legislation. I draw attention to what is before the Committee, which is that your Lordships would have to pass an affirmative resolution, and that does give your Lordships a power in law.
Lord Collins of Highbury (Lab)
The question has been asked better than I was trying to put it. The noble Baroness, Lady Noakes, acknowledged that in this House we are extremely reluctant to use the nuclear option, because we are not elected; the elected House has primacy. But we are not talking about legislation in the normal sense of the word—we are talking about a strategy statement that will influence the operation of a body that oversees the conduct of our elections, which could be issued quite close to a general election and might impede the operation of political parties. Constitutionally, I am always very reluctant for this unelected House to challenge the elected House on legislation, but I think we need to be clear and the Minister has to answer this question. This is very different and that is why we are so concerned about it: it concerns the way our general elections are conducted. If this House thinks that a statement is going to impinge on the way our political parties are able to operate, does the Minister agree that we should have the authority to reject it?
Lord True (Con)
My Lords, the noble Lord confuses various things. The constitutional position is as I set out. With the greatest respect, I say to him that the precise proposition that he has put before the Committee in this amendment is that the House should have the opportunity to reject. I do not know about standing on various legs, but he is logically opposing his own amendment. For our part, we think—
Lord Collins of Highbury (Lab)
Let us be clear about this. We have had the Leader of this House challenge this House when it has simply sent something back, let alone rejected it. Then we have a Prime Minister who says, “Well, we’re going to put loads more Peers in the House.” This is a separate issue. It is not a constitutional issue about the rights of the House of Commons; it is about a strategy statement for the Electoral Commission, which has statutory duties to be independent. I can see circumstances where a statement is produced, maybe even as close as four months prior to a general election, that could have severe implications for the conduct of political parties in that election. In those circumstances, even though I am in general against this House rejecting the democratic will of the House of Commons, this Bill imposes a duty on this House to consider whether it needs to operate the powers that it has.
Lord True (Con)
I note what the noble Lord opposite says. I believe that I have set out the correct constitutional position. If he wishes to persuade your Lordships’ House to act differently from the way it normally operates, it is up to him to make that argument and it is his privilege at the time, but that is not the argument before the Committee. I do not believe that the statement or the illustrative example of a statement justifies the kind of language which has been used about it today. We will have a debate on clause stand part shortly, but since the effect of the amendment is simply to replicate what is already in the Bill, I urge the noble Lord to withdraw it.
Lord Stunell (LD)
On a straight point of information, if an emergency statement is produced without consultation, can the Minister give us an assurance that it will itself come before both Houses of Parliament or will it bypass that process as well?
Lord True (Con)
My Lords, any statement has to be treated in the light in which Parliament enacts statements to be approved, and that is by affirmative resolution.
Lord Collins of Highbury (Lab)
Once again, my Lords, the debate has generated more areas of concern than it has put at ease. Undoubtedly, we will need to think about coming back to some of these issues, whatever happens in the debate on whether the clause should stand part. At this stage, I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment reflects a recent change in Select Committee arrangements in the House of Commons.
Member’s explanatory statement
This amendment is consequential on the amendments in Lord True’s name relating to the inserted section 4A of PPERA.
Lord Collins of Highbury
“(f) civil society groups.”Member’s explanatory statement
This amendment would mean that the Secretary of State must consult civil society groups on the draft of the strategy and policy statement.
Lord Collins of Highbury (Lab)
I want to preface my remarks about these amendments, because they relate to a fundamental ingredient of our democratic life and our democratic society. I have often spoken in my role as shadow Minister for Foreign Affairs about the importance of civil society. The noble Lord, Lord Ahmad, who has responsibility for human rights, frequently hears this and responds incredibly positively. There are many societies and countries where the guarantors of human rights are not Parliaments and parliamentarians but civil society, faith groups, women’s groups and trade unions. They are the important ingredients of a thriving democratic society. If we take them away, we do not have such a society; we end up with a society where elections may be held every five years but with a president like President Putin. These are the things that we have to be concerned about.
Baroness Barker (LD)
My Lords, I have the great privilege of being a member of the Select Committee chaired by the noble Lord, Lord Hodgson of Astley Abbotts, which considered citizenship and civic engagement in 2018 and has recently reconvened to look at the matter again. Largely with that in mind, I support Amendment 7, in particular. Bad as this Bill is in many ways, we have to treat it from the standpoint that, somehow, it could be a mechanism to improve representation, participation and the understanding of the electoral process by wider society.
The reason why it is important that civil society organisations be evidently included is that they do something unique. They represent people who are not in Parliament—all sorts of diverse and minority communities: precisely the people who are not engaged, and consequently not represented. We have already begun to see the beneficial effects of the Government talking to civic society organisations in the preparation of the Bill. I would make a case similar to that which the noble Lord, Lord Collins, made for trade unions, and say that we should be unafraid of including those groups in the development of the statement for the Electoral Commission.
One group of civil society organisations that we might think about are those concerned with citizenship, such as Young Citizens or the Association for Citizenship Teaching, organisations which exist with the primary purpose of improving the knowledge of future generations and their engagement and involvement in the electoral process. That is a thoroughly commendable thing and by including it in this Bill, we would not be doing anything that would in any way inhibit the Secretary of State or damage the process. This would be a small but valuable addition to the Bill.
Lord True (Con)
My Lords, I always have some empathy with the noble Lord opposite, who I greatly respect, when he speaks of Labour tradition, the tradition of working people and social traditions. My mother’s grandfather and his family were brought up in Salford and teeming parts of Manchester, and the education they had that led them to improve their lives and secure some degree of prosperity came through the mechanics’ institutes and institutions created by civil society with a good social instinct. So I understand what the noble Lord says and how he feels. I also understand how the noble Baroness, Lady Barker, feels when she speaks about civil society.
These amendments propose extending statutory consultation to specific groups, however defined. As the Bill stands, the consultation process provided in Clause 14 will already ensure that the statement will be subject, where applicable, to some statutory consultation with key stakeholders, including the Electoral Commission, the Speaker’s Committee on the Electoral Commission and the Levelling Up, Housing and Communities Committee. If the amendments your Lordships agreed earlier and are about to agree are agreed by the House of Commons, those institutions and bodies would be involved before the draft statement is submitted for the approval of Parliament.
The Secretary of State and officials will hear what has been said, but of course, the Secretary of State is not limited to consulting with only those bodies in considering legislation. I am grateful for what the noble Baroness said about reaching out to civil society. Government Ministers regularly engage with relevant stakeholders across civil society—I am sure that will continue—and a wide range of views can be considered by the Secretary of State when preparing a draft statement. I remind the Committee that the Secretary of State concerned is the one who bears responsibility for local government. Obviously, there is a particular, constant and important engagement between their department and local government. I understand the meaning and sense of the amendment asking for local government to be consulted, but that is, if you like, a standing counterparty of that department.
In addition, both Houses of Parliament play an important role in allowing for the views of wider society; your Lordships’ House is admirable in that. This already ensures that groups such as those noted in these amendments, including trade unions—which never lack a powerful voice in this House, notably from the noble Lord opposite—will be adequately represented through Parliament in scrutinising any draft statement. Additionally, the Speaker’s Committee on the Electoral Commission, which is a statutory consultee, is a cross-party group of MPs and that will further allow for representation of the views of different parts of the electorate.
So, while understanding the spirit in which these amendments are advanced and certainly giving the assurance that the Government are not limited to consulting only those bodies listed in the Bill, I urge that the amendments be withdrawn or not moved.
Lord Stunell (LD)
Could the Minister confirm that, when he referred to the Speaker’s commission just now, he meant the Speaker’s committee? He suggested that it had a wide remit to consult with society, whereas I am sure he will recall that it is substantially made up of Conservative Cabinet Ministers.
Lord True (Con)
My Lords, that was not a correct characterisation. I meant to say, “the Speaker’s Committee on the Electoral Commission”, which is a cross-party representation of MPs. If I misspoke, I apologise.
Lord Collins of Highbury (Lab)
I thank the noble Lord for his response to this debate. Consultation will be an important part of how we proceed on this and an issue which we will keep emphasising and reiterating. However, in the light of the comments, I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment is consequential on the amendments in Lord True’s name relating to the inserted section 4A of PPERA.
Member’s explanatory statement
See the explanatory statement for the amendment in Lord True’s name at page 22, line 14.
Member’s explanatory statement
See the explanatory statement for the amendment in Lord True’s name at page 22, line 14.
Member’s explanatory statement
See the explanatory statement for the amendment in Lord True’s name at page 22, line 14.
Member’s explanatory statement
This amendment is consequential on the amendments in Lord True’s name relating to the inserted section 4A of PPERA.
Lord Judge (CB)
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?
Viscount Stansgate (Lab)
My Lords, I think the whole House is grateful to the noble and learned Lord for the forensic way in which he has taken these clauses and demolished their legitimacy. I sat through the entire Second Reading debate, and this was identified as one of the major issues in the Bill. I put it to the Government that to introduce these provisions is a terrible mistake to make. I have no idea what type of discussions within government led to this being part of the Bill. I find myself wondering whether I am going to have to wait for the Minister’s memoirs to discover that, privately and secretly, even he thought there were disadvantages to putting forward a proposal of this kind. Whatever you may think of it now, there will be different Governments in the future who may use this legislation in ways that we cannot predict and would not want.
It is rare for me, in the short time I have been here, to listen to a debate which could be encapsulated in a single speech, so I will sit down. I hope that the House realises what a mistake is being made and just thinks of the damage that will be done to our reputation as a democracy were these provisions to go through.
Lord Judge (CB)
With the indulgence of the House, when I was explaining about the noble Lords, Lord Blunkett and Lord Wallace, I omitted a courtesy to the Minister for the meeting we had last week. I always appreciate those meetings and I am sorry I omitted that.
Lord Kerslake (CB)
My Lords, it was a fantastic dissection of these clauses by the noble and learned Lord, Lord Judge. I lend my support to the argument and, had there been any spaces left, I would have added my name to those opposing the clauses. There is a right way of doing legislation relating to our democracy and a wrong way. The Bill, as I said at Second Reading, is definitively the wrong kind of approach. It should have been done with consensus, pre-legislative scrutiny and a much wider form of consultation than we saw.
I have real problems with these two clauses, both the way they have been brought forward and their content. I will deal first with the way in which they have been brought forward. We have heard a lot about the absence of wider consultation. What truly astonished me was what I heard from the Electoral Commission in its excellent briefing to Cross-Bench Peers yesterday. I asked the commission if it was consulted before the Government made their statement of including this in the Bill and the answer was “No”. It was not. It is quite extraordinary to bring forward something of such significance to the commission and not consult it or even inform it of your intention beforehand. That says a lot about the Government’s attitude towards the commission and how they will approach consultation in the future. It is an appalling lack of respect for a pivotal organisation in our democracy.
My second point is around the substance of this section of the Bill. The Government, to put it very directly, are substituting government control for parliamentary scrutiny. That is essentially what is happening with these two clauses. Of course, the Electoral Commission is not perfect. It will have made mistakes and will own up to having done so; it will make mistakes in the future, I am sure, but it is absolutely not resistant to being accountable. It will and does appear in front of Select Committees. As we have heard, it appears in front of the current committee that has been spoken about. The issue is not accountability—being able to hold it to account for what it does and challenge it. That is already in the current arrangements and if it needed to be strengthened, it could be.
This is an issue about control. Is the Government’s view the same as that held, apparently, by a number of Members of the House of Commons, who have lost confidence in the commission? If it is not that, what is it? What problem are we trying to solve here and why are we taking such significant control? The response from the Government is, “Look at the illustrative version of this: there is nothing to see here”. I am afraid that is just not good enough. As the noble and learned Lord, Lord Judge, said, we need to look at what is on the face of the Bill. What does the Bill allow to happen in these circumstances? It is quite clear that, through the Bill, a much more difficult set of requirements could be put on the commission by way of its strategy and policy. We cannot take an illustrative version of this and be assured by it; it simply is not enough. We have to be sure that no version that would be difficult and problematic, and damaged its independence, could come forward under the legislation—and, quite clearly, it could.
We have had much debate about what is meant by “have regard to”, so I looked up a common definition. It says,
“to take account of this guidance and carefully consider it … there would need to be a good reason to justify not complying with it.”
That is what is in the dictionary for “have regard to”, and it is pretty onerous. For anybody who has worked, as we heard earlier, for an arm’s-length organisation, and I have been the chief executive of one, “have regard to” from a Government is a pretty strong expectation that you will follow and do as you are told. I have to be really blunt here: the only conclusion I can have about why this is coming forward is that it is to put the commission in its place and make it clear what the Government expect it to do and how they expect it to do it. That is a very serious and dangerous step forward.
Another defence that is put for these proposals is that we have this sort of provision for other regulators. That is a completely invalid argument. Other regulators are there to carry out the business of government, to execute and deliver government policy. It is perfectly in order that they have strategy and policy statements from the Government, because they are very clearly acting on behalf of the Government. They may have a certain independence but are there as agents of government. The Electoral Commission is not an agent of government—this is where I think the confusion has come in—but a body that acts on behalf of Parliament and our parliamentary democracy. That is the core difficulty I have with what is in the Bill.
If I had any doubts about the issue, if I thought I might be overreading it, I invite colleagues to read again the letter that came from the commissioners. I shall just read out one paragraph:
“It is our firm and shared view that the introduction of a Strategy and Policy statement—enabling the Government to guide the work of the Commission—is inconsistent with the role that an independent electoral commission plays in a healthy democracy. This independence is fundamental to maintaining confidence and legitimacy in our electoral system.”
Those are extraordinary words from all bar one of the commissioners, and I suspect the one who did not sign it probably had very similar views—I do not know because I cannot ask him. The key point is that having a statement as strong as that from the Electoral Commission, the body we are looking to introduce this for, ought to settle the argument. We ought to say, “If that’s how they feel about this, there must be a serious and real issue that needs to be addressed here”. I do not think I have ever read, in my entire public life, something as strong as that from a body such as the Electoral Commission. For that reason alone, we need to throw out these clauses.
PACAC has said the same thing. Indeed, it said it had not had any representations in support of these clauses—nothing at all. There were plenty who were concerned about it, and I am sure every other noble Lord’s mailbox is like mine, stuffed with correspondence from people who are really concerned about this. If we are serious about the concerns of maintaining the integrity of the democracy we have and the integrity of the Electoral Commission, we should support the proposal and throw out these two clauses.
Baroness Noakes (Con)
My Lords, I hesitate to rise to speak, given the entrenched views already expressed, both in this debate and in earlier debates this afternoon, but I think the reaction to Clause 14 has been disproportionate. Strategy and policy statements for regulators are not new. They are now an established part of the regulatory landscape, although it is still a relatively new concept and noble Lords may not have been following this development. As has been said, strategy and policy statements already exist for other regulators. There is absolutely no evidence that they have in any way impaired the independence of those regulators from government. If there had been a problem with them, it would be well known by now, as all regulators have multiple routes for making their views known. There is no significant difference between the functions of the Electoral Commission and the other regulators, as the noble Lord, Lord Kerslake, sought to say. There is no significant difference to make them exempt from what is a development in the regulatory practice in this country.
I was deputy chairman of Ofcom when the Government announced that they would legislate for a strategy and policy statement for Ofcom. That was eventually included in the Digital Economy Act 2017. Like all regulators, Ofcom was extremely protective, and somewhat precious, about its independence. It is fair to say that, within Ofcom, the reaction was of considerable suspicion of the Government’s motives. I had left the board before the final statement was eventually published in 2019, so I have no insights into the final process. However, having read that statement, it is difficult to see that there is anything in it that would cause any concern about the independence of Ofcom. I have not heard of anything to that effect. In fact, the statement itself looks rather anodyne to me, as do the statements in relation to the other regulators. I have not had an opportunity to look at the draft statement for the Electoral Commission, but even the noble Lord, Lord Butler of Brockwell, found nothing disobliging to say about it when he spoke earlier.
Lord Beith (LD)
I am sure that the noble Baroness believes firmly that the Government she so strongly supports would not issue a statement that would challenge the independence of the commission. However, there is absolutely nothing about the illustrative statement—or, indeed, in comparison with statements made for other regulators—that in any way circumscribes the ability of this Government or future Governments to go much further than that, unless they are restrained by things that we put into the legislation.
Baroness Noakes (Con)
At the end of the day, there is a requirement for Parliament to agree. That is an important part of the framework. It is not something the Executive can do alone. It would need to become a parliamentary approved statement and, as we discussed earlier, it must be approved by both Houses of Parliament.
My second point is that we should be absolutely clear that strategy and policy statements are not directions. No power of direction exists for the Electoral Commission, and Clause 14 does not create one. Noble Lords would be rightly concerned if Clause 14 created a power of direction in relation to the Electoral Commission. I think that the Electoral Commission was just plain wrong, in its written briefing, to claim that it would be subject to government direction as a result of Clause 14.
I regret to say that the noble Lord, Lord Butler of Brockwell, for whom I have the highest regard, was also wrong, when he spoke on the first group of amendments, to assert that this statement amounts to a direction. It does not. Directions are very clear in what they can force public bodies to do. This does not force anything. The only requirement, as we have heard, is in new Section 4B for the Government to “have regard to” the statement. We discussed that in the first group of amendments, and the noble and learned Lord, Lord Judge, has made some comments on the ineffectiveness of that, because it does not refer to other things which it could “have regard to”. It does not trump the commission’s statutory objectives; it does not compel the commission to do anything at all, or to take account of anything else.
We must keep all this in proportion. It is an additional thing for the Electoral Commission to take into account; it does not replace all the existing law relating to the commission. This is the formulation used for all existing regulators, and I believe it is the right approach to protect regulatory independence. As I said, no concerns have been expressed to date about the independence of any of the regulators subject to statements.
The important thing is that the commission has to report on what it has done in consequence of the statement. In practice, as we will see from the way in which the statements tend to align with what the independent regulators are doing, statements generally reinforce what those bodies are doing, and relatively new information beyond what would be included in the annual report comes as a result of those statements.
However, it is important that the independent regulator explain any divergence from the Government’s priorities as approved by Parliament. For example, if the Government said that their priority was to improve democratic participation, not just generally but for particular groups, we would want to know what the commission had done about that and whether it had had any impact. That really does not threaten independence.
I believe that transparency and accountability are what the strategic and policy statements are really all about, and why they are useful. One element is for the Government to be transparent about their policies and priorities, because they have to set them down, get them consulted on and then have them approved by both Houses of Parliament. The regulators then have to be transparent in reporting on what they have done in respect of those priorities—or whether they have done nothing at all. That allows them to be held to account by Parliament—in the case of the Electoral Commission, through the Speaker’s Committee. I hope noble Lords will see that this legislation is not the monster they have created in their own minds. In fact, it can be seen as a very positive development for improving transparency and accountability. I hope we will allow these clauses to stand part of the Bill.
Lord Eatwell (Lab)
My Lords, I regret that, like the noble Baroness, Lady Noakes, I was unable to attend the Second Reading debate. At the time I was on an aeroplane returning from work in the United States. However, I have read the full proceedings in Hansard with great care and I feel appropriately informed.
Moreover, some time spent in the United States has also given an added perspective on some of the measures in the Bill, for there is about it a definite odour of the Donald J Trump playbook. There is the whiff of voter suppression in the extra requirements being added for access to the franchise. There is a distinct stench of the politically partisan in the measures that undermine the independence of the Electoral Commission. But perhaps the strongest stink arises from changes in the franchise being imposed by the current majority party, without pre-legislative scrutiny or a Speaker’s Conference. This strikes at the foundations of our constitution, written and unwritten.
I predict that in due course, much as the late Enoch Powell predicted, Mr Johnson will be defeated in an election—and then there will be a, perhaps minor but none the less significant, online campaign claiming that the election was stolen or rigged. While it would be unfair to claim that the noble Lord, Lord True, had planted the seeds of such a threat to our democracy, he will have added a little natural fertiliser. In his speech introducing the Bill at Second Reading, he made much of the precautionary principle, and of taking steps to protect the integrity of elections from potential, if as yet hypothetical, threats. He did not, however, extend his precautionary principle to the measures in Clauses 14 and 15 that, as the Public Administration and Constitutional Affairs Committee stated, risk undermining public confidence in electoral outcomes by diminishing the independence of the Electoral Commission, both in perception and in reality.
As the late Lord Hailsham famously observed, this country is governed by an elected dictatorship. A Government with a substantial majority in the other place can do virtually what they please. That is why this House, with its, let us say, peculiar composition, has a particular responsibility to protect the constitution, written and unwritten, against partisan proposals by the governing party. Here, the discussion by the noble Baroness, Lady Noakes, of statements for regulators gives us a valuable insight, because, in this case, the statement is made by the regulated entity. It is as if one of the broadcasters could have a statement telling Ofcom to what it should have regard. The Secretary of State is a political figure. In the electoral arena, he is a regulated entity. He should not be in a position to provide advice of any sort to the regulator.
As the noble and learned Lord, Lord Judge, said at Second Reading,
“there is a constitutional necessity, in a system of democracy based on universal suffrage, that any electoral commission should be wholly and totally independent”.—[Official Report, 23/2/22; col. 239.]
By rejecting these clauses and affirming the independence of the Electoral Commission, this House will make a vital commitment to free and fair elections.
Lord Rennard (LD)
My Lords, in considering the Government’s plans to take more direct control of the Electoral Commission, we should go back to considering the consensus that existed when it was established. In 1998, the Committee on Standards in Public Life, then chaired by the late Lord Neill of Bladen, proposed the creation of an
“independent … Election Commission with widespread executive and investigative powers”.
Introducing the resulting legislation, the then Home Secretary, Jack Straw, explained how the commission would
“undertake its key role at the heart of our electoral arrangements”.
He emphasised that
“the commission must be as independent of the Government of the day as our constitutional arrangements allow, and it must be answerable directly to Parliament and not to Ministers”.
On behalf of the Conservative Opposition in the other place, Mr Robert Walter, then said:
“The Opposition have always made it clear that we support the recommendations of the Neill committee and that we shall support the legislation that implements the report”.—[Official Report, Commons, 10/1/2000; cols. 42-109.]
In this House, the noble Lord, Lord Bassam, introduced the legislation. He said that
“the commission will need to be seen to be scrupulously independent both of the government of the day and of the political parties”.
The consensus about the essential independence of the Electoral Commission was backed on that occasion by the late Lord Mackay of Ardbrecknish, a greatly respected Member on the Conservative Benches at the time. He said that
“there should be an electoral commission”,
but:
“There must be no possibility of the commissioners being \ As currently drafted the provisions in Part 3 of the Bill are not consistent with the Electoral Commission; cols. 1088-95.]
This principle of the Electoral Commission’s independence from the Government of the day survived five general elections. No previous Government before this one sought to change that principle. So I ask why, if we could not have “Tony’s cronies” overseeing the work of the Electoral Commission, we should then have Michael Gove overseeing it? To have any government Minister of any political party setting the overall strategy and policy for the Electoral Commission effectively ends its independence.
Since the last general election, the Conservative Party has been subjecting the Electoral Commission to undue pressure. In August 2000, the then Conservative Party co-chair Amanda Milling wrote in the Daily Telegraph that, if the Electoral Commission failed to make changes,
“then the only option would be to abolish it.”
That sounds pretty much like a threat to me. An independent election watchdog should not operate under such threats—not in a democracy.
Baroness Wheatcroft (CB)
My Lords, the noble Baroness, Lady Noakes, drew a parallel between the Electoral Commission and Ofcom. However, Ofcom has a huge and evolving remit; inevitably, it has to respond to changes in government policy in areas as diverse as regulating the spectrum and the quality of broadcasting. The Electoral Commission is a very different beast, with a very straightforward role: to oversee elections and regulate political finance to ensure that we have a free and fair election system.
It describes its job as working
“to promote public confidence in the democratic process and ensure its integrity”.
What could a Government want to do to change that? It is simple, straightforward and easily understood. I cannot understand what the policy statement enshrined in Clauses 14 and 15 would add to that quite straightforward purpose. Nothing I have heard today has helped me in that direction, and I hope the Minister might be able to answer the question that others have asked: what is the purpose of this?
That there is room for improvement in the way the commission operates is true, but the proposed policy statement is simply not the way to accomplish that. In my experience, when it comes to elections, political parties have one overriding objective: to win as many votes as possible. Indeed, in the 2015 general election, the Conservative Party was so keen to win votes in South Thanet that it drove a coach and horses—and, indeed, a battle bus—through the rules. So egregious were the breaches that in 2019, Mr Justice Edis, presiding over the subsequent court case, was highly critical of what he termed Conservative Central Office’s
“culture of convenient self-deception and lack of clarity about what was permissible in law and what was not.”
The senior central office employee who was instrumental in this electoral fraud was sentenced to nine months in prison on 22 counts. It was only because of her personal circumstances that the sentences were suspended. There is no doubt that Conservative Central Office is not the only political headquarters to have played fast and loose with the rules if it thought it could. That is why we do not want political parties anywhere near the Electoral Commission.
Those who drafted Clause 14 may have done so with the most honourable intentions in mind but, as has been said, these clauses could have a truly malevolent effect on our electoral system. There is an unpleasant whiff about them, and it could evolve into a foul stink. The positive case for these clauses has simply not been made, and I therefore support the removal of these clauses from the Bill.
Lord Hayward (Con)
My Lords, I am somewhat conflicted in this debate, to the extent that I, unlike a number of noble Lords who have spoken previously, do not view the Electoral Commission through rose-tinted spectacles. I shall refer to one or two problems that I and others have had with it recently. I have, however, had the opportunity to meet and deal with Mr John Pullinger, its new chairman; I wish him well and believe—partly because of what he has done in relation to some of the issues that I have had—that he will actually change the culture in the Electoral Commission.
I was fascinated by the contribution just now from the noble Baroness, Lady Wheatcroft. I must declare an interest, because the person to whom she and the noble Lord, Lord Rennard, referred is a close personal friend of mine, but I will not deal with the case as such. The noble Baroness aired the view that, although CCHQ had been found guilty of an offence, it was almost certain that the other parties did the same. That is actually the problem—
Baroness Wheatcroft (CB)
My Lords, I was not insinuating that other political parties had played fast and loose in that particular election. I merely meant that, had they felt able to in some elections, they might have done.
Lord Hayward (Con)
I am sorry; I did not make myself clear. I was referring not specifically to that election but to elections in general, which is what I took to be the comment of the noble Baroness.
I will first cover the Electoral Commission and then come on to this particular clause. As the noble Lord, Lord Scriven, said first and others have said later, the Electoral Commission is required to produce an independent, free and fair set of elections. It is not required to start intruding in terms of developing or interpreting legislation. I was brought up to believe that these two Houses and the judges—the judiciary —decided how our laws operated. But, unfortunately, the Electoral Commission has moved into that field. I say that with reference to the debate in this Chamber on 6 January on the progress of regulatory bodies into fields and issuing edicts that they are saying are law.
I refer here not to the case that I just raised but to the availability of electoral rolls. They are key if you are going to investigate corruption in Tower Hamlets, but access to them is being denied by the Electoral Commission. In an email, it said that, unfortunately, “the law is silent” on this matter. It then went on to develop policy on it, effectively saying that it is law. It has issued instructions to EROs on a certain basis.
Later in the Bill, I shall cover the fascinating development of the law of secrecy when it comes to a polling booth, a practice that we have had for 150 years. The Electoral Commission is now changing the processes—it is changing the law—which is why I have tabled an amendment to stop it doing what it appears to be doing.
The noble Lords, Lord Rennard, Lord Wallace and Lord Kennedy, are all aware of the difficulties that I have had with it since early August on accredited observers—people who can be allowed into a polling station. The Minister wanted to go into a polling station in a by-election in Tower Hamlets and was told that she could not because she was political. She, or her office, was making those arrangements with the chief executive of Tower Hamlets. Nothing in law says that an accredited observer cannot be a political individual. I would have been quite happy if the Labour or Lib Dem spokesmen in the Commons or the Lords had gone to witness the problems there, but, suddenly, the Electoral Commission said, “You cannot do that”. Nothing in law says that.
What makes it worse—this is where I disagree with the noble Lord, Lord Kerslake—is that the Electoral Commission does not admit its failings. As I say, I made correspondence available to other parties throughout, contemporaneously, and came to the conclusion that, in the way it has operated, the Electoral Commission is institutionally arrogant. It will not admit its failings, to the extent that, despite representations, detailed letters and failures to reply, when challenged about the refusal to allow the Minister into a polling station—it had been involved in conversations some 10 or 15 days before the by-election—it said immediately afterwards that it was not aware of a Minister being prevented from entering a polling station. This is despite the fact that, two and a half months later, it admitted that it had had conversations with the Cabinet Office and the Minister’s office, not to mention one with me in a polling station and with a local councillor, all of whom the Electoral Commission officials are saying it stopped, in one form or another.
What was fascinating was that, when confronted with all these different things, Electoral Commission kept saying, “We didn’t say it.” The Cabinet Office officials thought it did, as did the Ministers and the staff at Tower Hamlets. I believe it did. It is not a body which has previously been willing to admit its failures. As I say, it failed to do so when—
Lord Butler of Brockwell (CB)
My Lords, I am very grateful to the noble Lord for giving way. His complaints against the Electoral Commission may be justified, but can he explain how a strategy and policy statement from the Government would put the matter right?
Lord Hayward (Con)
The noble Lord intervenes at a highly apposite time. I said at the start of my contribution that I was conflicted. All I wanted to do was set the record straight in relation to the Electoral Commission as I and others have experienced it. A number of noble Lords have said that these clauses do not solve the problems that might arise from any behaviour of the Electoral Commission. That is why I am conflicted. I do not believe these clauses solve the problem. I believe there are problems with the Electoral Commission and that Mr Pullinger and his new organisation will tackle them, but I do not believe that these clauses solve the problem.
The noble and learned Lord, Lord Judge, regularly reminds us of Henry VIII clauses. I regard this as a Henry II clause: “Who will rid me of this troublesome priest?”—or, in this case, this troublesome regulatory body. I am sorry, but I cannot read those clauses without thinking that in some malevolent hands they will be misinterpreted by some Government or another.
I was an electoral observer in 2018 in a country I know well because I completed the whole of my university career there—Zimbabwe. I met the Zimbabwe Electoral Commission and challenged it on the way it operated that election. I would like to be in a position to suggest that it use and operate our law. Could I honestly do that with these two clauses as they stand?
I come back to the position on which I opened. I am conflicted. I would like to see what the noble Lord, Lord Scriven, identified: the clear operation of an electoral commission that produces independent, fair, free elections. That I could commend to the Zimbabwe Electoral Commission. I hope that, when it comes back, this legislation will be something that I could recommend. As it stands, with these clauses, I could not.
Lord Hayward (Con)
I am very conscious of that. I did not necessarily say that the Lords to whom I was referring were present in the Chamber; I gesticulated towards the Bench opposite. I hope I did not offend the noble Lord in saying that.
Lord Beith (LD)
My Lords, I am very glad to follow the noble Lord. He has delivered a message to people in his party that you can be severely critical of the Electoral Commission and consider that it has shortcomings and has not always owned up to things it has got wrong, but it does not follow that it makes sense to remove a body which is, in many respects, a guarantee of the democracy of our system. His illustration from Zimbabwe is telling. Who among us has not talked to people from various countries with very shaky regimes about the need to have a fair and reliable electoral system? Many have taken part as election observers, as he has, and seen a lack of independence in the electoral process that is fatal and damaging. The fact that the existing members of the commission believe that the provisions of these two clauses would inhibit their ability to behave independently tells its own story. It is on that and one other point that I want briefly to contribute.
The noble Lord, Lord Kerslake, quoted from the letter that all but one of the members of the commission sent to Ministers. However, he did not go on to take a further quote from it, which says:
“If made law, these provisions will enable a government in the future to influence the Commission’s operational functions and decision-making. This includes its oversight and enforcement of the political finance regime, but also the advice and guidance it provides to electoral administrators, parties and campaigners, and its work on voter registration.”
It goes on to say that the “have regard” duty would
“provide a mechanism, driven by the then governing party, enabling that party’s ministers to shape how electoral law is applied to them and their political competitors.”
That is pretty clear, and anyone who took up a position on the Electoral Commission with this law governing how they conducted themselves would be likely to be severely inhibited by it. That raises a question of who will be willing to serve on the Electoral Commission with this kind of statutory statement as something to which they are obliged to have regard.
The other point I want to make is to reinforce something I said by way of an intervention. It really is no use the Government relying on the fact that they have produced an illustrative or indicative statement. That statement may be regarded by some as motherhood and apple pie; it might be regarded by others as offering a few hints of things that might be unsatisfactory in future statements. It is not the law. It does not inhibit or guide even this Government, let alone future ones, as to what kind of statements they will seek to get through the process.
Remember that the process is effectively one of statutory instruments—affirmative procedure, the same as statutory instruments—which, for various other reasons, many noble Lords are reluctant to use in this House to the extent of actually defeating a statement. Indeed, the Labour Party has often taken a public position that it is not appropriate for this House to take such an action, but the noble Lord on the Front Bench pointed out that we are dealing with a different matter here. We are dealing not with a general policy issue but with protection of the integrity of the election process and the body required to regulate it, and the independence that body needs to be able to do those things.
I end with the hope that the contribution from the noble Lord, Lord Hayward, will be read by quite a lot of other members of his party, who might then feel free to join those of no party, my party and the Labour Party in saying that this matters. This is a threat to the independence and perceived independence of the body that regulates elections. However many of its decisions we disagree with or which may have been discomforting to our own individual party or cause, we must maintain its independence. That requires the removal of these clauses.
Lord Scriven (LD)
My Lords, I will follow on from the points made very powerfully by the noble Lord, Lord Eatwell. In effect, these clauses will empower the regulated over the regulator. I listened very carefully to the point from noble Baroness, Lady Noakes, that statements of policy over regulators are not new. Let us take the logic of what these clauses actually do and of who is writing the statement to its conclusion. Would we allow the dominant electricity and gas company to write the strategy and policy statement for the energy regulator? Would the Government be happy for the largest water company in the country to write the strategy and policy statement for the water regulator? Would the Government legislate for the largest telecommunications company to write the strategy and policy statement for the telecoms regulator? I ask those questions directly to the Minister. If not, why not? We know as well as those outside this House do that that would empower the regulated over the regulator. We have independent regulators so that those who are regulated have no power whatever over the regulator.
Therefore, why is it that the Government seek in this Bill to allow the largest political party—that is, the Government—to write the strategy and policy statement for the regulator of elections and electoral policy? There is no logical reason to do that in order to keep that regulator independent. It completely puts the regulator at the behest of the Government in power, and it sets direction.
I want to follow what the noble and learned Lord, Lord Judge, says, because it is important that we look at what is in these clauses. A number of times, both the Minister and the noble Baroness, Lady Noakes, have kind of given us warm tea and soothed us: “Don’t worry, have your cup of tea, sit down, and everything will be fine. It is a statement purely of strategy. This strategy won’t get into the operation. The Government won’t be directing what the commission does.” But let us look at new Section 4A(3)(b) introduced by Clause 14. The Secretary of State will be given the power to put in the statement
“any other information (for example, about the roles and responsibilities of other persons) the Secretary of State considers appropriate”—
any other information. It basically gives the Secretary of State carte blanche to direct the regulator of elections and the electoral system to do whatever the Secretary of State decides. It is such a wide power. It is not a strategy power; it is a power that could get right into who the Electoral Commission employs, what the role of that person is and the kinds of powers that person has.
I ask the Minister: what powers would be excluded from new Section 4A(3)(b)? The Bill says
“any other information … the Secretary of State considers appropriate.”
Is that a catch-all? If not, what would be excluded on the face of the Bill? I cannot see anything on the face of the Bill that says what the strategy and policy statement would exclude. I see that the statement could include any information the Secretary of State sees fit.
Furthermore, the Secretary of State, as we have already discussed, could do this of their own volition and without any consultation. The noble and learned Lord, Lord Judge, was absolutely clear. “Consultation” does not necessarily mean anything. I am a former council leader. We consulted. You do not necessarily have to change what you have decided based on consultation. Some of the most powerful and important considerations we have to make in this clause are that those who have worked in and led arm’s-length bodies have said very clearly that when a Government say something is on the face of the Bill and you have to have regard to it, it is a direction and an instruction. It is not just something bland; it is a clear instruction that those people within those organisations and the Electoral Commission will see as something they have to take forward. It is very clear that the powers in this clause are much greater than a kind of “It’ll be all right, you don’t have to do it”. New Section 4B(2) says that the commission “must”—not “may”—
“have regard to the statement when carrying out their functions.”
New subsection (4)(b) says that the commission must report after the end of
“every subsequent 12-month period, on what they have done—”
not on what they have not done—
“in consequence of the statement.”
Remember: the statement is about the priorities of the Government.
I believe that these clauses, which are so widely written, give the Government such powers over the regulator that they completely and totally take away the basis of a regulator that free and fair elections can be built on and undermine the very basis of our democracy. It is for those reasons that these clauses should not stand part of the Bill.
Lord Russell of Liverpool (CB)
My Lords, I rise very briefly to draw three points to the Government’s attention. The first is prompted by the noble Lord, Lord Hayward, who talked about a culture of what appears to him to be institutional arrogance in the Electoral Commission. We live at a time of airborne viruses, with which we are all too familiar, and it occurs to me that perhaps they have infected Her Majesty’s Government to some degree, since I detect occasional traits of institutional arrogance in some of their statements and demeanour from time to time. I hope this debate is not going to be an example of that.
Secondly, I advise the Minister to listen extremely carefully to the forensic way in which the noble and learned Lord, Lord Judge, laid out his argument. We have to think about what we hope is the unlikely event that something to do with the Electoral Commission and what it has done goes to judicial review or something similar. The noble and learned Lord demonstrated the way in which justice will look at the words of this law, and how they will be interpreted. So I say to the Government that, if they find themselves up against individuals such as the noble and learned Lord, they are likely to come out on the wrong side of the argument.
Thirdly, I belong to the Council of Europe, and in that capacity I have monitored three different elections. The Council of Europe exists partly to help those countries that do not have a history and tradition of western democracy as we know it to move towards a state where that becomes normalised. In the course of the three elections that I have monitored, one thing that we have always done early on is go and meet the electoral commission of the country. All that I can say from my experience of doing that is that, if we were interrogating an electoral commission and we discovered in the course of that interrogation that the commission was subject to what the Government are suggesting in these two clauses, it would start some red lights flashing. So I suggest to the Minister that the Council of Europe has a well-developed set of criteria for advising countries on how to set up their electoral commissions and how to make sure that they are fair and do what it says on the label, and I would be very happy to make an introduction to the people in Strasbourg who could give the Government access to that.
I appeal to the Minister to think very carefully about what he is trying to persuade us is the right way to proceed, because the mood of the House is very clearly that we have great concerns about it. So please let us all be careful.
Baroness Hayman of Ullock (Lab)
My Lords, this has certainly been a very interesting debate. I thank the noble Lord, Lord Wallace, for tabling these amendments, and I wish him well as I understand the reasons why he is not with us today. I also thank the noble and learned Lord, Lord Judge, for his incredibly thorough and forensic introduction in the noble Lord’s absence. I cannot think of anyone who could have better gone through these clauses and explained the concerns around them.
We know that the Electoral Commission was established by the Political Parties, Elections and Referendums Act 2000 in order to oversee elections and regulate political finance in the UK independently of government. The 1998 report from the Committee on Standards in Public Life emphasised the fundamental importance of independence for the proposed commission. It said:
“Those who have advocated the establishment of an Election Commission have been emphatic that it should be independent both of the government of the day and of the political parties … 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.”
In its 2007 review of the Electoral Commission, the CSPL highlighted the dual requirements of independence and accountability, saying that
“any system of accountability must also protect the Commission’s independence and impartiality from the possibility of undue influence for partisan political or electoral advantage”.
In 2009, party-nominated commissioners were introduced to bring knowledge and experience of political parties and the workings of elections from those perspectives. This is now well represented and understood by the commission.
Part 3 of the Bill would make significant changes to the way in which the Electoral Commission is accountable to Parliament, giving new powers to the UK Government to designate a strategy and policy statement, about which many noble Lords have expressed concerns. It would require, as other noble Lords have said, the commission to “have regard to” this statement when carrying out its functions. It was really important that the noble and learned Lord, Lord Judge, went carefully through the Bill on the implications of what this would mean.
The introduction of a strategy and policy statement which enables the Government to set the strategic direction for the work of the Electoral Commission is inconsistent with the role that an independent commission plays in a healthy democratic system. This independence is fundamental to maintaining confidence in our electoral system. The commission’s independent role must be clear for voters and campaigners to see, and it must be preserved in electoral law. This underpins fairness and trust in our electoral system and provides cross-party confidence in the commission. The noble and learned Lord, Lord Judge, explained why he thinks that public confidence could be lost if complete independence of the Electoral Commission is lost.
The commission’s accountability is currently directly to the UK’s Parliaments and should remain so, rather than being subjected to government direction. As we have heard, the Electoral Commission itself took the unprecedented step of writing to the Secretary of State and the Minister in the other place. The noble Lords, Lord Kerslake and Lord Beith, quoted from this letter and I would like to do the same. In it, the Electoral Commissioners
“urge the Government to reconsider those measures which seek to change the oversight arrangements of the Electoral Commission.”
I find it quite extraordinary that it felt the need to ask the Government to reconsider because it was so concerned.
Independence from the Government of the day is important because it prevents an incumbent changing laws or practices to suit their political interests. It can also strengthen public trust in the political process. Just as the judiciary should be independent, electoral officials should be non-partisan. As my noble friend Lord Eatwell said, the Secretary of State is both regulator and regulated.
The problem with the Bill is that, in contrast with keeping electoral officials non-partisan, it proposes to weaken the commission’s independence as well as to give the Government greater power by allowing them to designate the strategy and policy statement. It gives Parliament—but in practice, a Government, if they have a majority—the power to examine the Electoral Commission’s compliance with this. The Electoral Integrity Project describes this as
“a direct violation of international best practices and would constitute democratic backsliding because it is giving the government and future governments greater control over the conduct of elections—the process through which citizens are enabled to hold government to account”.
As we have heard from the noble and learned Lord, Lord Judge, new Section 4A of PPERA, as inserted by Clause 14, empowers the Secretary of State to designate this strategy and policy statement. This would set the strategic and policy priorities of the Government relating to electoral and similar matters, and the role and responsibilities of the commission in enabling the Government to meet those priorities. The statement may also give guidance in relation to particular functions of the commission and may provide additional information. The noble Lord, Lord Scriven, mentioned “any other business”. If that is the case, can the Minister tell us where the checks and balances are as to what this could include?
Evidence given to the Public Administration and Constitutional Affairs Committee included, its report said,
“strong criticisms from academics and a range of stakeholders that the measures lack justification and were characterised as a ‘retrograde step’ ‘an extremely dangerous thing to do’ and ‘would constitute democratic backsliding’
In his evidence, it continued, Professor Fisher pointed to
“surveys of election agents since 2005 which ‘have seen that confidence in the [Electoral Commission] has grown over this period ... there is no particular problem with those that the [Electoral Commission] regulates’”.
Far from requiring additional oversight, the commission already delivers good work in ensuring high levels of satisfaction in the integrity of the electoral process among those who are most knowledgeable and closely involved. A survey of electoral agents at the 2019 general election showed that 78% agreed that the rules in respect of election spending and donations were clear; 72% viewed the Electoral Commission as a useful source of advice; 75% thought that electoral guidance for candidates and agents was clear and easy to use; and 75% thought that the Electoral Commission’s written information on the verification and count was clear and easy to use.
In its response to the Public Administration and Constitutional Affairs Committee, whose report raised these concerns, the Government said:
“It is not uncommon for the Government to set a broad policy framework, as approved by Parliament, which independent regulators should consider”
giving as examples the relationship that Ministers hold with regulators such as Ofcom and Ofwat.
The noble Baroness, Lady Noakes, referred to other regulators, mentioning her experience with Ofcom in particular. I too have spent many years working in regulated industries, in my case energy and water. I would instead agree with the noble Baroness, Lady Wheatcroft, and the CSPL, which considers this to be a completely false analogy, since these are not regulators implementing government policy. The Electoral Commission regulates the people and parties that make up the Government and Parliament. The noble Lord, Lord Scriven, gave an example as to why the situation with regulators such as Ofcom and Ofwat is so very different, so I do not accept that analogy. When giving evidence on this, Professor Alan Renwick stressed that
“ministers and parliamentarians should recognise their own potential conflict of interest.”
Does the Minister recognise that there is a potential conflict of interest here?
Clauses 14 and 15 are not just about increasing the accountability of the commission to a Committee in the House of Commons, to which it already reports. Clause 14 subjects the commission to strategic and policy control, including guidance on specific cases, not by Parliament, but by Ministers. It is pretty difficult to express just how appalling this is but the noble and learned, Lord Judge, did an excellent job. Policy control and even guidance on individual cases might be appropriate for other public bodies—for example, those making decisions about infrastructure or planning permission—but it can never be right for the governing party to be able to give instructions to a body whose role requires it to make decisions that might well go against the interests of that party.
Under Clause 14, Ministers could guide the commission to interpret its powers in ways that would favour the ruling party and its friends. The courts might provide a backstop in the most extreme cases, such as where guidance tries to permit illegal activities, but judicial intervention is unlikely in more strategic interventions, such as Ministers telling the commission to restrict or halt its work on voter registration, which targets mainly young people, minorities and renters living in house-shares.
Lord True (Con)
My Lords, of course I listen carefully. Having listened carefully, I infer that your Lordships view these clauses with somewhat modified rapture. Even if I were as eloquent as Pericles, which I am not, I might not be able to change your Lordships’ minds over the next five to 10 minutes. However, I hope that, as we engage on this Bill—which I hope we will continue doing—these clauses will remain in as we go forward to Report. We should always consider modes of improvement, as well as modes of rejection. I will certainly undertake to have further conversations.
I welcome the noble Lord, Lord Eatwell, on his return from the United States. I understand that he was not at Second Reading, but I will correct the record by saying that I made no reference to the precautionary principle in that debate. It is not my habit to do so. If he finds in Hansard that I did, then I will gladly apologise to him.
I will address the amendments proposed to Clauses 14 and 15, and the excision of these clauses from the Bill. All noble Lords will agree—as I do—that it is vital that we have an independent regulator which commands trust across the political spectrum. This is the view of Her Majesty’s Government. The public rightly expect efficient and independent regulation of the electoral system. We must reflect at all times on the current structures charged with this important responsibility and, where there is a need for change, be prepared to make it. The one thing that will not change is that the Electoral Commission is independent and will remain so.
We believe that the Government’s proposals represent a proportionate approach to reforming the accountability of the Electoral Commission, while respecting its operational independence. I listened very carefully to the noble and learned Lord, Lord Judge, and will examine the Hansard record of his analysis of the clauses. There is no direction in the clause for the Electoral Commission to act in any particular way. There is the requirement to “have regard to” the strategy document —to which I will return later.
Clause 14 seeks to make provisions for the introduction of a strategy and policy statement which will set out guidance which the Electoral Commission “must have regard to” in the discharge of its functions. It is not a direction, as my noble friend Lady Noakes said, in what, under the circumstances, was a somewhat courageous speech and one with which I agreed. She set this out clearly.
It has been claimed that the “duty to have regard” to the statement introduced by the provisions will weaken the independence of the commission. I understand that noble Lords should be concerned about that. It is a perfectly legitimate concern. If that were the case, I would understand where noble Lords were coming from. We do not believe that the duty weakens the independence. It is also argued that the Government are given too much influence. Indeed, it was said that the duty gave “control” over the Electoral Commission’s affairs. Again, in our submission, that is wrong. We strongly reject that characterisation of the measure. This is guidance, not a directive, and, as such, the Electoral Commission will remain operationally independent as a result of this measure. It will be required to “have regard” to the statement in the exercise of its functions. This legal duty does not replace or undermine the commission’s other statutory duties. They will remain.
It is entirely appropriate for the Government and Parliament to provide a steer on electoral policy and ensure that their reforms on electoral law are properly implemented. It is not about meddling with operational enforcement decisions on individual cases or any change in the commission’s statutory duties. By increasing policy emphasis on electoral integrity, however, inter alia the Government are seeking to prevent interference in our democracy from fraud, foreign money and hostile state actors.
At present, the Electoral Commission is not fully held to account by anyone. My noble friend Lord Hayward referred to the issues of family voting in Tower Hamlets, on which I recently read an article by that courageous campaigner for honesty in elections, Councillor Peter Golds, who documents his difficulties in getting the commission to address fully and seriously, as he sees it, the problems presented by this issue. The proposed illustrative document that has been given to noble Lords, for example, asks the Electoral Commission to look into the dangers of fraud and such issues that emerge from family voting. It is reasonable to ask the body tasked with preventing fraud to address the bullying of female voters and to give priority to that.
The statement has a democratic check by being ratified by Parliament, as we discussed on an earlier amendment. Your Lordships have the power to accept or reject these proposals on the statement when it comes forward. The duty to have regard that we are introducing means simply that when carrying out its functions the commission will be required to consider the statement and weigh it up against any other relevant considerations. I do not accept the contention of the noble Lord, Lord Kerslake, and others that a statement is not appropriate for a public body. I agree with my noble friend Lady Noakes in her response to that.
Lord Kerslake (CB)
Perhaps I might clarify this point for the Minister. I did not say it applied to any public body. I said it related to the Electoral Commission. There is a critical difference here in its role, its standing and the nature of its accountability. The situation is quite different for other regulatory bodies.
Lord True (Con)
I respectfully disagree with the noble Lord on that. The Electoral Commission is a public body and many other such bodies have important duties and activities that impinge on the public and public well-being. I stand by my statement and agree with my noble friend Lady Noakes on that.
The propositions that we are putting forward work in similar ways to other existing statutory duties that require public bodies to have regard to specific considerations in carrying out their functions; for example, the requirement for public bodies to have regard to matters of equality when exercising their functions. The statement will not allow the Government to direct the commission’s decision-making. They—any Government—will not be able to do so. My noble friend Lady Noakes is, again, right.
Lord Scriven (LD)
I must challenge this. The Minister keeps saying that there is not a power. Can he explain new Section 4A(3)(b) in Clause 14, which states specifically that the statement may also set out
“any other information (for example, about the roles and responsibilities of other persons) the Secretary of State considers appropriate”?
That is such a wide power, that the Secretary of State can determine anything that the commission does.
Lord True (Con)
Yes, my Lords, new Section 4A(3)(b) allows the statement to contain—I am repeating what the noble Lord has just read out for the Committee; I am trying to help the Committee by doing so—any information considered appropriate, such as information
“about the roles and responsibilities of other persons.”
This could include other bodies with which the EC has relations, for example. The commission cannot be held responsible for the functions of other bodies which might be mentioned. New Section 4B(2) is disallowed from the commission’s duty to
“have regard to the statement when carrying out their function.”
New Section 4B(3) says:
“Subsection (2) does not apply to information contained in the statement by virtue of section 4A(3)(b).”
It is therefore intended specifically, for the reasons that the noble Lord puts forward, for that provision in the Bill.
The Government are clear in their submission that a statement will not undermine the commission’s other statutory duties. It could be used to provide guidance in areas where the commission is exercising the significant amount of discretion it is afforded, and will continue to be afforded, in terms of activity, priorities and approach.
More generally, statutory consultation in applicable circumstances, and the required approval of the UK Parliament when a statement is created or revised, will ensure that the Government consider the UK Parliament’s views and will give Parliament, including your Lordships’ House, the final say over whether the statement takes effect. This measure will improve the commission’s accountability to this Parliament and ensure that Parliament remains firmly in control of approving any statement.
I turn to the amendment relating to Clause 15. The purpose of Clause 15 is to expand the remit of the Speaker’s Committee on the Electoral Commission, a statutory committee which is chaired impartially by the Speaker of the other place. Its existing remit is limited to overseeing the commission’s finances, its five-year plan and the appointment of Electoral Commissioners. In expanding the committee’s remit, so that it may examine the commission’s performance of its duties to have regard to the statement, the Government are seeking to extend Parliamentary accountability of the commission to the Speaker’s Committee. This will enable the committee to perform a scrutiny function similar to that of Parliamentary Select Committees, allowing it to retrospectively scrutinise the commission’s activities in light of its duty to have regard to the statement. This power will sit alongside the committee’s existing statutory duties, which we are not amending in any way.
For clarity, Clause 15 will not enable the committee, any more than the Government, to direct the commission’s decision-making. The commission will remain operationally independent and continue to be governed by the commissioners. For completeness, this clause also gives the Speaker’s Committee powers to request relevant information from the commission
“in such form as the Committee may reasonably require”,
while ensuring that the commission is not required to disclose information that
“might adversely affect any current investigation”
or that
“would contravene the data protection legislation.”
This is important in protecting the commission’s ability to investigate, and also the interests of those who may be under investigation. For the reasons that I have set out, we contend that this clause will actually improve the commission’s accountability to Parliament, while respecting the regulator’s operational independence.
Those are the reasons why the Government think that these clauses are proportionate and reasonable, and I urge that your Lordships do not seek to remove these clauses from the Bill.
Lord Eatwell (Lab)
My Lords, the Minister suggested that he did not use the precautionary principle in his speeches at Second Reading. At col. 314, he drew a direct analogy between the need for photographic evidence to vote and locking a door to prevent burglars. Is not that the precautionary principle?
Lord True (Con)
No, it was a humorous remark for the Committee. The precautionary principle is one that the European Union applies in considering legislative activity; it is not a principle that I espouse and not one that I endorsed in the speech.
Viscount Stansgate (Lab)
Can the Minister at least address another point made by my noble friend, on the effect that these clauses will have on the perception that our electoral process is as proper as it should be? Given the comparison that he drew with what we have seen across the Atlantic, and the damage that could be done if any electoral process suffers from a growing sense that it is in some way unfair, or has been interfered with, it is simply not worth having these clauses, to prevent the type of damage that we have seen across the Atlantic.
Lord True (Con)
I accept what the noble Lord said on that point—and, indeed, what the noble Viscount has said. What I would say is, first, that a Minister at the Dispatch Box should not criticise either a former or a present President of the United States, or any members of the parties that support them. We all make and contribute to the perceptions that people have, and one problem is with the risk of importing the rhetoric of the USA about voter suppression, fair voting or whatever, when actually every opinion poll in the United States, including among African Americans, supports the principle of voter identification. If we import that rhetoric into our public affairs, we ourselves potentially contribute to the very kind of perception that I wish to avoid, and I know that the noble Viscount also does—although he has not been in this House that long, I know that his integrity is resounding. All of us who want to avoid that ought to watch our own language in this respect. That is the only thing that I would say in response. We will debate this later, but the Government are seeking to suppress nobody’s vote. We wish to maximise participation in elections.
Lord Collins of Highbury (Lab)
I hope that the Minister can answer the direct point from the noble Lord, Lord Hayward. Although the noble Lord criticised the operation of the Electoral Commission and spoke about how it might improve, he referenced something fundamental. He spoke about his experience in a country where an electoral commission operated under the direction of a Government who hindered and harmed the opposition. Does the Minister not think that, when we complain to that Government about that electoral commission, today’s action and his speech today will inhibit our ability to criticise that Government?
Lord True (Con)
Absolutely not—and I very much hope not. I come to your Lordships’ House to listen to your Lordships’ House, and I hope every government Minister does just the same. The direct answer to the noble Lord opposite is the one that I gave in my speech—that this Government do not seek to direct the Electoral Commission, and nothing in the Bill contains a power of direction.
Lord Judge (CB)
I am very grateful to everybody who has taken part in this debate. It has been a very interesting debate, with aspects of the issue to which my eyes have certainly been opened.
Noble Lords will not want me to try to address every point made by the Minister, but I shall draw attention to a couple. First, if there are problems with how the Electoral Commission is doing its job, or problems with the extent of its job and the ambit of its responsibilities, what we should do is reform the Electoral Commission. We do that in primary legislation before both Houses, not by a ministerial statement.
Secondly, the Minister said that there was nothing in here that used a direction, because “must have regard to” is not a direction. It is not a direction—but the issue is not merely power but influence, and undue influence. However much one tries to avoid the fact, if the Electoral Commission must have regard to whatever the Minister says, the perception of undue influence is obvious, the fact of undue influence is, I suggest, inevitable, and the truth of the matter is that over the years the Electoral Commission will become more and more dependent on what the Secretary of State’s statement asserts.
Finally, the point I sought to make was that the Speaker’s Committee was fine and good when we had the Electoral Commission exercising the responsibilities it currently has, without the introduction of the new Secretary of State’s statement. But what alarms me—and, I suspect, alarms the House—is simply this: there will be two government Ministers examining the work of the Electoral Commission and checking whether it has complied with, or responded to, the Secretary of State’s statement. Fine: they will be seeing whether their ministerial colleague’s directions, invitation and suggestions have been obeyed. In other words, the Electoral Commission will be judged by somebody in the same Cabinet, or the same party. That is a serious change in the way in which the commission works.
I am sorry to say this but, having listened to the Minister, I am in the same position as PACAC was. Incidentally, PACAC is one of the bodies that the Secretary of State is supposed to consult, but its recommendation has been totally ignored. The Minister has not demonstrated that the proposed measures that we are considering are both necessary and proportionate. Nor has he demonstrated that the risk of
“undermining public confidence in the effective and independent regulation of the electoral system”
has been avoided. For those reasons, among many put forward, although for today’s purposes I shall not press the matter, we shall have to return to this on Report.
Baroness Hayman of Ullock
Member’s explanatory statement
This amendment would probe the provisions which prevent the Commission from borrowing money.
Baroness Hayman of Ullock (Lab)
My Lords, I imagine that, compared with the previous debate, this one will be a lot shorter and sweeter. I tabled the amendment to Clause 17, which, as I am sure noble Lords are aware, deals with criminal proceedings. I am aware that there are other amendments relating to this area that will probe much more deeply the provisions for the police and the institution of criminal proceedings, so I will be brief.
My amendment would make a very small addition to proposed new sub-paragraph (2)(a), and add the phrase “greater than a peppercorn” after the word “money”. It is a probing amendment, which we decided to put forward for discussion because, although we would not disagree with the concept that the Electoral Commission should not borrow money, that is not the issue at all. I wanted to bring this forward, and ask the Minister some questions, to find out why this provision was placed in Clause 17.
The Minister may tell me I am wrong, but my understanding is that the Electoral Commission is already unable to borrow money, so this does not seem to me to be a new policy. Can he clarify that, in case I have got hold of the wrong end of the stick here and there is a particular reason why this clause has been included? I would appreciate some detail on the reasoning behind it. There is legislation that governs other bodies. The one that comes to mind is the Office for Students, which also is prevented from borrowing money. Is the idea behind this that the Government are trying to bring more consistency across legislation, looking at other bodies? Perhaps it needed tidying up. I would be very grateful to know.
On that point, I also ask the Minister whether there are any public bodies that are now in a position to borrow money. I have got a bit confused. If some are able to borrow money, what is the justification for that and for others not being able to do the same? I just want to get a better understanding of this part of the clause.
Lord Stunell (LD)
My Lords, I support the amendment, probing as it is, from the noble Baroness. As she quite rightly said, this in large measure prefigures the next debate we are going to have. I await with interest the answers that we will hear. Particularly in the case of the borrowing power, it seems somewhat otiose to put in a power that has never been exercised in any way at all.
Viscount Younger of Leckie (Con)
My Lords, it seems that it is time for a change of horse—although it is fair to say that the highway that this one is on is broadly the same. On this amendment from the noble Baroness, Lady Hayman of Ullock, I respect her wish to explore the issue; I understand that it is a probing amendment on the question of whether the Electoral Commission can borrow money. I will try my best to answer the questions that have been raised. It is our view, at the outset, that we do not think that this is necessary, but it is of course incumbent on me to explain why.
It is important to note that the Electoral Commission is funded through Parliament each year, following scrutiny by the Speaker’s Committee on the Electoral Commission. The commission submits a main estimate, outlining its required funding for the financial year ahead for approval by that committee, with the estimate then laid before the House of Commons. Should the commission require any further funding for the year, it is able to submit supplementary estimates throughout the year to the Speaker’s Committee on the Electoral Commission as necessary. This could be where project costs have risen for unforeseeable circumstances or for unscheduled electoral events. Given this annual funding through Parliament, and with the ability to seek further funding if required for unforeseen projects or events, it is the view of the Government that the commission therefore does not need to borrow money. I think that is probably what the noble Baroness was seeking confirmation of, and I can confirm it. It is further noted that this restriction has been in place since the establishment of the commission.
On the noble Baroness’s specific question as to why it therefore needs to be in the Bill, I am seeking that answer. It may just be that it is confirmatory and needs to be put in but, if there is anything further to say on that, I will most certainly write to the noble Baroness, as it is a very fair and rather basic question.
On the other public bodies that might be in a position to borrow money—that is, who they are and perhaps to what extent—again, that is something I will need to write on. It may be a very long list or it may be a very short list, but it is a fair point in terms of providing some sort of context to this matter.
I hope that that provides a little reassurance. With that, I ask that the amendment be withdrawn.
Baroness Hayman of Ullock (Lab)
I thank the Minister for his response and look forward to his letter. I thank him for agreeing to write to me so that I have the details of the response. On that basis, I am happy to withdraw my amendment.
Lord Stunell (LD)
I rise to oppose the proposition that Clause 17 should stand part of the Bill.
Clause 17 is a strange animal. In explaining something of the context for new sub-paragraph (2)(a), the Minister did not give me the impression that there is a clear context for its inclusion in the Bill. However, it is much easier to see what it is for when you look at new sub-paragraph (2)(b). The way I see it—perhaps the Minister can tell me whether I have got it wrong—this is, in essence, the wing-clipping clause. Wing clipping leaves the bird looking fine; it just cannot fly. So the Electoral Commission will retain all its plumage and hopefully make all the right noises at the right time, but it will not be allowed to deliver so much as a peck to miscreants, let alone take off and fly. In short, new sub-paragraph (2)(b) removes the Electoral Commission’s right to instigate criminal proceedings.
In our report on this exact matter last year, the Committee on Standards in Public Life looked very hard at the issue, not least because some of the Minister’s friends in the other place had clearly expressed strong views on it. We heard some of the context for that from the noble Lord, Lord Hayward, earlier. If I change the metaphor from birds to football, I could say that the Minister’s friends in the other place objected to the yellow cards that the Electoral Commission issued following the 2015 general election. They wanted to appeal to the FA on the grounds that the referee was biased, did not understand the offside rule and had taken a long time studying VAR before reaching for his card.
The committee heard—indeed, the noble Baroness quoted our evidence—that it had been a very stressful time for some people, not least because there was an extended period of uncertainty and a high risk of reputational damage. Nevertheless, the fact is that offences were committed, breaches of electoral law were found and convictions followed. I might say in passing that, as an amateur agent and candidate multiple times over a period of more than 40 years, it is a stressful time. However, of all the difficulties in understanding and accurately following election rules during that time, I must say that I never found the rule that national and local expenditure should be kept separate particularly taxing or problematic—but they found it to be so.
I recommend that noble Lords take a close look at the CSPL report on this, which I believe they will find balanced and persuasive, although it does not seem to have persuaded the Government. In one particular respect, we recommended that the Electoral Commission should in fact have extra powers to grant permission to parties and non-party and referendum campaigners to pay late invoices or bills from suppliers. That is taking over a function that is currently exercised by the courts. At present, there is a very cumbersome process of applying to the courts for relief if a small mistake—or indeed a large one, although most are very trivial—has been made in paying invoices and bills at the end of an election campaign. That application to the courts is certainly stressful and wholly disproportionate. If stress relief is the aim of this clause, or the Bill as a whole, that CSPL recommendation ought to be included in it—that provision should be there.
One argument that has been advanced and that the Minister may be tempted to deploy is that it is not appropriate for the rule-maker to be the prosecutor of breaches of those laws. Well, quite a lot of people exercise power in situations where they might have a conflict of interest, which has been referred to by my noble friend Lord Scriven. I remind the Minister that the Health and Safety Executive is one of many regulators that do exactly that: it manages the regulations and carries out prosecutions. I further remind him that his noble friend, the noble Lord, Lord Greenhalgh, is about to give the Health and Safety Executive, via the building safety regulator, a hugely extended role in tackling the cladding scandal and the many examples of poor practice in the building industry. It may be too much to expect consistency of approach from two Ministers dealing with two Bills on the same issue in the same week, but, in one case, a regulator is being given a greatly enhanced reach of powers to prosecute and fine, and, in the other, one is having its teeth ripped out.
It may be said that there have not been any prosecutions by the Electoral Commission and you never miss what you do not have. That of course is a completely post hoc position; it would make more sense to deploy that argument if there had not in fact been dirty work at the Thanet crossroads—but the court found that there had been. The evidence given to CSPL was that, in England, the very many different police forces have very different levels of expertise in election law and offences. They were often very hesitant to get involved in complex and possibly highly politically charged cases where there is little by way of case law to guide them and quite a low chance of securing a conviction. I do not know whether the Minister has any evidence to the contrary—has he got chief police constables and police and crime commissioners queueing up to ask him, “Please can we take on more election offences”?—but I have to say that that evidence missed CSPL. So, in the absence of that, what does subsection (4)(2)(b) achieve? As far as I can see, it reduces the chance of a successful prosecution or inquiry.
So, if there is no evidence that the police are gagging to take on more work, the impression that the Electoral Commission’s wings are simply being clipped is strengthened. So I want hear how the Minister expects prosecutions of egregious offences to proceed if this is removed from the system. If the system is to function effectively, the Electoral Commission needs the backstop power to institute proceedings, not least as a spur or lever to make sure that police engage properly in taking action in an area of law where they have traditionally shied away from it.
Although Clause 17 is by no means as dangerous as the earlier ones—Clauses 14 and 15—it is here simply as a piece of red meat to give to disgruntled politicians who had a near miss. It is out of place in a Bill that was once called the “election integrity Bill”—very sensibly, the Government dropped the word “integrity”. I am afraid that it diminishes the power of the Electoral Commission in yet another small way and reduces its capacity to deliver fully and properly on one of its core functions. It runs entirely contrary to the recommendations made by CSPL, which have been delivered to the Prime Minister after a most careful consideration of all of the available evidence. I and my noble friends say that it should come out of the Bill.
Lord Khan of Burnley (Lab)
My Lords, I welcome the noble Lord’s intent to oppose Clause 17 standing part of the Bill and to probe the new restrictions on the Electoral Commission which, in effect, will prevent it instituting criminal proceedings. This represents a significant change in the role of the commission which, until now and since its establishment, has held the power to bring prosecutions against those who break electoral law.
This will no doubt mean that greater responsibilities are left to the police and the Crown Prosecution Service to enforce electoral law. On this, can the Minister confirm whether additional resources, support and training will be provided for this purpose? The transfer of functions away from the commission will also reduce its overall responsibilities and could mean that the positions of some of its workforce are made redundant. Does the Minister expect that any jobs will be lost as a result of these clauses?
Overall, I am concerned that these measures could be short-sighted and form part of a broader attack on the capabilities of the independent Electoral Commission. At a time when democracy is under threat elsewhere in the world, the UK should stand as a beacon for our values and oversight is crucial to that. If the Government can justify this transfer of functions away from the Electoral Commission for the purpose of effectiveness, they will have our support, but given that other clauses in this Bill undermine the independence of the commission, I am sure the Minister will understand our caution over these provisions.
Let us look at the evidence. The Electoral Commission considers that its
“current powers to establish a prosecution function are consistent with those available to many other regulators”
and that the proposed measure would
“reduce the scope for political finance offences to be prosecuted, relying solely on the police and prosecutors having the resources and will to take action.”
It notes that the current low levels of prosecution for a PPERA offence, referencing one in the past 20 years, have “important implications for deterrence.”
Assistant Chief Constable Pete O’Doherty from Thames Valley Police noted:
“the current state of legislation has created a two-tier system with parties and non-parties being investigated and regulated by the commission with civil penalties imposed, while of course candidates and individuals by the police, who will end up with much more severe sentences and even criminal records. Also the relationship between the police and the commission is very strong, and having organisations that apply two very different pieces of legislation is not ideal. For example, it can cause issues in deciding what should be classed as party and what should be classed as candidate expenses, to give you an example.”
The Government note that the CSPL’s recent report on electoral finance regulation did not recommend that the Electoral Commission should be able to develop the capacity to bring prosecutions. They stress that they are
“committed instead to supporting the police as necessary to enforce electoral regulation proactively and effectively and as stated in the Government’s response to the Committee on Standards in Public Life’s report, the local nature of offences under the Representation of the People Act 1983 means that it is sensible for investigations to lie with local forces police, rather than being run on a national scale. The Government will consider further the Committee’s findings and recommendations, including on enforcement of electoral law.”
Finally, I turn to the PACAC recommendations:
“The Government has not clarified whether more resources and training will be provided to the police and Crown Prosecution Service (CPS) and Public Prosecution Service in Northern Ireland (PPS) to investigate alleged criminal offences under PPERA.
… The Government should set out how it will ‘support the police as necessary to enforce electoral regulation proactively and effectively’, as committed by the Government in its letter to the Committee of 7 October 2021, including what resources it will make available to the police to investigate and bring forward criminal prosecutions under PPERA.
… We urge the Government to commit to review, monitor and report on potential criminal breaches under PPERA and their enforcement, which would assist in bringing forward any further legislative changes to either the civil and/or criminal sanctioning regimes. The Government should publish its findings and lay a statement in Parliament every year.
… The Government should also commit to undertaking a review of the civil sanctioning regime for electoral law offences and its interplay with criminal prosecutions under PPERA and the RPA, providing a timetable for consultation and review of the CSPL’s recommendations in this regard.”
On the Government’s response to the PACAC recommendations, we do not think that the Government have not done enough to address the committee’s concerns.
I finish by echoing the words of the noble Lord, Lord Stunell, that, as it currently stands, this is wing-clipping of the Electoral Commission. It is silencing and reducing its power—a theme that we have seen continuously through different groups of amendments in Committee. I look forward to hearing the Minister’s response.
Lord True (Con)
I thank all noble Lords who have contributed to this brief debate and I welcome the noble Lord, Lord Khan, as another member of the team on the Front Bench opposite for this Bill. I look forward to working with him as I do with other noble Lords opposite.
The purpose of Clause 17, which the noble Lord opposes, is not to change anything but to maintain the existing role of the Crown Prosecution Service and Public Prosecution Service in Northern Ireland in bringing prosecutions under electoral law by clarifying the extent of the Electoral Commission’s existing powers.
I remind noble Lords that, when PPERA was passed—and it was an important reforming Bill by a Labour Government that established the commission—Labour Ministers then were absolutely explicit that the Electoral Commission should not have prosecution powers. The noble Lord, Lord Bach—a fine noble Lord—said at the time that the Neill committee, which was the independent committee that had looked into this,
“made clear its view that prosecutions in respect of breaches of the law relating to controls on donations and election expenses should be placed in the hands of the Director of Public Prosecutions and should not be the concern of the commission … the commission does not have that power … the commission will be an enforcement authority but not a prosecuting authority.”—[Official Report, 20/11/2000; col. 631.]
That was what the noble Lord said then, and I agree with him now.
The Explanatory Notes for PPERA clearly state that the Electoral Commission shall have
“a duty to monitor compliance (but not to mount criminal prosecutions).”
That was the basis on which the commission was set up, and all parties at that time assented to that proposition, including the Liberal Democrats.
What has actually changed? The Electoral Commission publicly stated in its Interim Corporate Plan 2020-21 – 2024-25 its intention to develop a prosecutorial capability that would allow it to investigate and bring suspected offences directly before the courts. That was in the aftermath of what some might consider the debacle of the pursuit by the commission of some citizens, which was summed up in by a headline in the Guardian on 14 September 2018:
“Elections watchdog got law wrong on Brexit donations, court rules”.
While the commission considers that current legislation provides scope for it to develop this function, that has never been explicitly agreed by any Government or Parliament. Indeed, as I just suggested to noble Lords, absolutely the reverse was the intention of Parliament when the Labour Government introduced this legislation. It is therefore important to clarify, in the light of the Electoral Commission’s statement, the relevant legislation to make it clear that the commission should not bring criminal proceedings and to put the matter beyond doubt. By doing so, we will avoid the risk of wasting public money as well as the risk of duplicating the work of the prosecution authorities who are already experts in this domain—I agree with the noble Lord opposite that that is where the resources should go.
The clause that the Government propose would add to the Political Parties, Elections and Referendums Act 2000 to make clear the original attention of Parliament that the commission should not bring criminal prosecutions in England, Wales and Northern Ireland. This would not apply in Scotland where there is already a single prosecutorial authority.
The clause will not amend any of the commission’s other existing powers. The commission will continue to have a wide range of investigatory and civil sanctioning powers available to it, and it will remain able to refer criminal matters to the police, as is currently the case. We must not forget that, as the noble Lord, Lord Stunell, himself reminded us, the commission has never brought a criminal prosecution to date, although it may be talking of wanting to develop that role. Clause 17 merely retains that status quo in practice, so our measure will not add a burden to the prosecution authorities or lead to fewer prosecutions.
The proper place for criminal investigations and prosecutions lies with the experts in this domain—namely, the police and prosecution authorities. That is in line with the Regulating Election Finance report by the Committee on Standards in Public Life, which found that there was no evidence or support for allowing the regulator to develop a prosecutorial ability in order to increase the number of prosecutions. The proper place for criminal investigation and prosecution is with the police and the Crown Prosecution Service, and the Public Prosecution Service in Northern Ireland. These are the experts. Having the commission step into this space is unnecessary.
I draw the Committee’s attention to the Crown Prosecution Service’s evidence to the Committee on Standards in Public Life in July 2021, when it stated that
“the CPS deals with criminal offences under the RPA and criminal charges under PPERA, while the Electoral Commission has civil powers to deal with PPERA cases. We assess this is an appropriate division. There are important prosecutorial functions that the CPS has vast experience of, and expertise in, including police PACE processes, adherence to CPIA legislation and to disclosure rules … In our view”—
this is the CPS, not the Government—
“a criminal-civil divide provides a good level of precision … Any unintentional blurring of the lines would be counter-productive.”
I think that is advice from prosecutorial authorities who know what they are doing.
We are committed instead to supporting the police as necessary to enforce electoral regulation proactively and effectively. For that reason, I urge the Committee to resist this opposition to the clause. If your Lordships were to follow it, it might encourage the Electoral Commission to develop this function. I think the existing practice should be maintained, and therefore I urge that Clause 17 should stand part of the Bill.
Lord Rennard
“Fines for electoral offences
(1) The Political Parties, Elections and Referendums (Civil Sanctions) Order 2010 (S.I. 2010/2860) is amended as follows. (2) In Schedule 1, paragraph 5, for “£20,000” substitute “£500,000, or 5% of the total spend by the organisation or individual being penalised in the election to which the offence relates, whichever is greater”.”Member’s explanatory statement
This new Clause would allow the Electoral Commission to impose increased fines for electoral offences.
Lord Rennard (LD)
My Lords, one of the problems with the Bill is that the Government failed to make any changes at all to their proposals when the Committee on Standards in Public Life published its recent report, Regulating Election Finance. The whole purpose of setting up the CSPL was to meet Sir John Major’s aim of cleaning up the reputation of politics, including political finance. It now seems that the Government want not only to control the watchdog responsible but to make sure that it has no teeth. I believe the Government have a significant conflict of interest in this matter.
The CSPL report recommended that the Electoral Commission should be able to levy increased fines for serious electoral offences. It proposed a comprehensive package of measures to improve enforcement, which included decriminalising some offences and addressing an enforcement gap in the regime covering candidate spending. There are some matters that are best dealt with by regulators such as the Electoral Commission, which must be able to enforce fines, rather than necessarily by the police and criminal courts. As the commission itself says, there could be more proportionate ways for the commission to deal with breaches of political finance law.
Lord Young of Cookham (Con)
My Lords, I wish to speak to Amendment 19 in my name, which has been grouped with Amendment 18. When I tabled my amendment, I did not realise I had been gazumped by the noble Lord, Lord Wallace of Saltaire, who had the same objective as me but had put a significantly higher price on it, of £500,000 instead of £50,000. I will add a brief footnote to the case made by the noble Lord, Lord Rennard.
I have two interests in this. The first is that I was the opposition spokesman on the original legislation to set up the Electoral Commission over 20 years ago. My party fully supported the establishment of an independent body to monitor elections in this country and, as a corollary, the need to give it powers to carry out its functions and to deter behaviour that undermined the integrity of the electoral process. My view is the same and, although the Electoral Commission has not got everything right, I do not join those who seek to undermine its independence, as we heard in earlier debates.
My second interest is as the immediate predecessor to my noble friend as Minister with responsibility for the Cabinet Office in your Lordships’ House and, in particular, responsibility for answering questions from the noble Lord, Lord Wallace, and others, about the powers of the Electoral Commission. Indeed, my DNA may still be on the folder in front of my noble friend.
Both experiences lead me to the view that the original powers to fine, untouched since the Act was passed, need updating to reflect what has happened in the intervening period, not least the erosion in the value of money.
Looking through the exchanges on which I took part on this very subject, I see that on 28 March 2018, in response to a Question from the noble Lord, Lord Hunt of Kings Heath, I said:
“On the specific question of the £20,000 fine, the noble Lord is correct that the Electoral Commission has expressed concern in the past that this might be regarded as simply the cost of doing business, and it is making representations that it should be enhanced to a higher level. The Government are considering those representations and, alongside any other recommendations that come out of the investigation currently under way, we will then consider what further action to take.”—[Official Report, 28/3/18; col. 833.]
On 28 June that year in response to a Question from my noble friend Lord Cormack I replied:
“My noble friend will know that the Electoral Commission has made requests for legislation, particularly to increase the sanctions that are available to it.”—[Official Report, 28/6/18; col. 240.]
Also, on 17 July that year in response to Lord Tyler—whose participation in these debates we all miss—I said:
“On the question of legislation, as I have said, we are currently considering whether the Electoral Commission should have more powers; we know that the commission wants the maximum fine to be increased from £20,000 to a higher level”. —[Official Report, 17/6/18; col. 1141.]
I am now free to express views that were at the time constrained by the rules of collective responsibility—which I stretched from time to time but I hope never broke. I fully expected on the briefing I had received that, when we legislated on the Electoral Commission, we would increase the maximum fine available.
The amendment from the noble Lord, Lord Wallace, reflects the recommendation of the CSPL. We should attach weight to that body because its first report led to the establishment of the Electoral Commission, and it has a paternal interest in its well-being. It recommended a maximum fine of £500,000 or 4%, which the noble Lord, Lord Wallace, has generously rounded up to 5%. My amendment is more modest, seeking simply to retain the value of £20,000 to take account of inflation and rounded up modestly.
It is worth digging into the CSPL report to find out why it came to this decision. The Electoral Commission itself gave written evidence, saying:
“Recent research indicates that the public believe that fines for breaking political finance laws are too lenient, given the amount of money that could be spent on campaigning. More than half of the respondents (52%) in our regular tracking research carried out in early 2020 said that a £20,000 maximum fine was not high enough. Only 27% felt that it was about the right amount”.
Although my party gave evidence the other way, the Committee on Standards in Public Life was robust in its conclusion.
My noble friend quoted with approbation the views of the CSPL in an earlier debate, and I will quote what it said on this subject, at paragraph 9.79:
“We consider that an effective regulatory system must be backed by strong sanctions. The prospect of significantly greater fines will act as an incentive to ensure that parties and campaigners put in place robust systems to ensure that the requirements of electoral law are complied with. For anyone contemplating deliberately breaching the law, it should give pause for thought. It seems that the Commission’s powers have fallen behind equivalent regulators such as the Information Commissioner’s Office and we have concluded that this should be redressed”.
I agree. Finally, it went on to say:
“We support the recommendation made by the House of Lords Democracy and Digital Technology Committee that the maximum fine the Electoral Commission may impose should be increased to 4% of a campaign’s total spend or £500,000, whichever is higher”.
I do not want to hark back to earlier debates, but it seems that this is further evidence of government antipathy towards the Electoral Commission. I hope my noble friend will be able to persuade me that this is not the case.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is quite sweet to have these two amendments in the same group. I am sure the noble Lord, Lord Young of Cookham, knows which one I prefer.
Clearly, you have to make the political parties pay attention. At the moment political parties face higher fines for data protection breaches than they do for breaking election law, which is really inappropriate. The risk is that fines for breaking election law just become part of the cost of doing business for political parties, especially those with the deepest pockets and richest donors. That is clearly not the Green Party, but it could be other political parties represented in this Chamber.
Amendment 18 would mean that the penalties for breaking election law would actually hurt the law-breakers. It follows the same logic as the general data protection regulations by implementing proportional fines so that big organisations have to pay attention.
Lord Stunell (LD)
My Lords, I rise to support my noble friend and Amendment 18 and to thank the noble Lord, Lord Young, who, once again, trumps everybody by having been the Minister, which is a bit of a theme in the debates he has contributed to that I have heard. He is all the more welcome for that, and I hope that in due course his DNA may reappear on the ministerial file so he can complete the job.
I think the case has been made very clear. In fact, the noble Baroness from the Green Party, whose name has just evaporated—the noble Baroness, Lady Jones, I do beg her pardon—made the clear comparison between the fine a party might get from screwing up on its data protection and the fine it might get from screwing up on its election expenses. I think any ordinary member of the public, and indeed any rational Member of this House, would think that if one offence were worse than the other, the election offence is surely the more serious. I hope we shall hear that, subsequent to the new Minister picking up the file, he has been able to talk to the relevant officials who decide these things on his behalf and will be able to give us some idea that the Government will produce their own amendment on Report, or perhaps will assist the noble Lord, Lord Young, in tweaking his, so that it is at an acceptable level for his officials to approve.
I want to make the case that we and my noble friend Lord Rennard set out very clearly to make this proportionate to the fines and the impact that other regulators can have on the behaviour of the organisations they regulate. This may not be entirely in the best interests of those of us in this room, because it could be our political parties that end up paying significant amounts of money. That, of course, is the trouble, because whether the turkeys will vote for Christmas is always a difficult question to answer. Actually, it is an easy question to answer, but how do you overcome the natural reluctance there is to impose on ourselves the burdens that we willingly impose on other people when they offend regulatory standards?
I hope to hear something from the Minister. If he cannot come in at £500,000, could he at least, for goodness’ sake, come in at £50,000 and give those of us here who think this system urgently needs uprating some glimmer of hope that progress is being made?
Lord Khan of Burnley (Lab)
My Lords, I first say how much I am enjoying hearing the noble Lord, Lord Young of Cookham, expressing his views in an unconstrained manner. I am also glad that he still has his DNA all over this folder, which means there are some valuable contributions.
The amendments in this group, which would have the effect of increasing the fines the Electoral Commission can apply, raise the question of how the commission can effectively deter non-compliance. This is an especially pertinent question given that the Bill removes its power to institute criminal proceedings.
In the past year alone, the commission has investigated close to 40 different parties, individuals and campaigners. Many of these investigations have led to fines. These include penalties totalling almost £18,000 to the Conservative Party for failing to deliver accurate quarterly donation reports and failing to keep accurate accounting records. In the most recent recording period, however, there seems to be no instance of the commission imposing the maximum fine. Can the Minister confirm how many instances there have been of the full £20,000 fine being applied?
The amendment of the noble Lord, Lord Wallace, raises the possibility that the fine could equal a percentage of the total spend of the organisation—a point that the noble Lord, Lord Rennard, and the noble Baroness, Lady Jones of Moulsecoomb, have raised in relation to bringing it in line with the fairness of other organisations, such as GDPR and the Information Commissioner’s Office. This is significant in relation to raising the possibility of the equal percentage of the total spend of the organisation, because a number of smaller parties have received fines that are as large as the main parties’ fines. I look forward to hearing the Minister address the concerns raised by noble Lords in this group in particular.
Viscount Younger of Leckie (Con)
My Lords, I am happy to respond to Amendments 18 and 19, which were spoken to very eloquently by the noble Lord, Lord Rennard, and my noble friend Lord Young of Cookham.
I start by saying that I am aware that the Committee on Standards in Public Life recommended as part of its report, Regulating Election Finance, that the Electoral Commission’s fining powers be increased to 4% of a campaign’s total spend or £500,000, whichever is higher, as was mentioned during this debate. This proposal mirrors the amendments in their intent to raise the fining powers of the commission beyond its current limit.
First, we should differentiate between civil and criminal cases. The Government’s view is that the commission already has adequate powers to impose civil sanctions on political parties and non-party campaigners up to £20,000 per offence—and I underline “per offence”. Criminal matters can be, and are, referred to the police and, in certain cases, taken to a criminal prosecution. The courts have the power to levy unlimited fines for some offences and, as the Committee is probably aware, to impose custodial sentences where appropriate.
As set out in the Government’s response to the Committee on Standards in Public Life’s report, any extension of the commission’s fining powers would need to be considered carefully to assess its necessity and proportionality. This is because it is vital that they are an effective deterrent but do not cause a chilling effect on electoral participation and campaigning. I will say more about that, because a point was made, particularly by the noble Lord, Lord Rennard, about a comparison with the Information Commissioner’s Office. Any direct comparison with the fines that can be issued by the ICO should note the clear differences between the two regulators and the types of entities they regulate. I understand his point in making the comparison, but political parties across the spectrum are not global corporations. I am pleased that the noble Baroness, Lady Jones of Moulsecoomb, has popped in for this last group. I am sure the Green Party aspires to be global, but I hope I do not offend her by saying that it is not at the moment.
Baroness Jones of Moulsecoomb (GP)
I will just say that there are Greens all over the world, and I have not popped in just for this last one—I have been here several times today for different groups.
Viscount Younger of Leckie (Con)
I have been corrected on two points, and I am glad that the world is full of Greens, I am sure, doing a lot of very good work.
There are over 350 political parties currently registered with the Electoral Commission, and many are predominantly made up of volunteers. While it is vital that the sanctioning regime is effective, it needs to be ensured that such deterrents do not cause a chilling effect on electoral participation and campaigning.
I have more of a general point to make, which I think chimes with the views expressed during this very short debate, following up on the Committee on Standards in Public Life’s recommendations. The Government are committed to making sure that elections are secure and fit for the modern age. As part of this, we keep the Electoral Commission’s role, powers and regulation under review regularly to ensure that it is able to discharge its responsibilities effectively and that electoral law can be upheld in the most effective manner.
As part of further work looking at the regulatory framework for elections beyond the Elections Bill, the Government intend to look at all the recommendations of the report by the Committee on Standards in Public Life, alongside similar reports. These include a forthcoming report from the Public Administration and Constitutional Affairs Committee into the work of the Electoral Commission.
Regarding the question about statistics, which was raised by the noble Lord, Lord Khan, I will have to write to him about how many times the £20,000 has been levied. However, the fact that he says it has not been used lately suggests that there is not an urgent need to raise it. I have attempted to answer the question on raising the amount. I appreciate the points raised. I am afraid that for this evening, at this late hour, being a Scotsman, it is not £50,000, or even £500,000. It remains at £20,000.
However, for these reasons, I hope that the House will accept my explanations. I ask the noble Lord to withdraw his amendment.
Lord Rennard (LD)
I thank the Minister for his kind remarks at the outset of his reply. I might have hoped that the notes in his folder were still those of the noble Lord, Lord Young of Cookham, as opposed to the ones that he read out this evening, since I suspect that they might have been slightly different.
All the debates today have shown that the House overwhelmingly wants to have an election watchdog, and wants it to be independent and effective. The Committee, and the whole House in due course, will have to return to the issue of the role and powers of the Electoral Commission, in particular the report on election finance by the Committee on Standards in Public Life. I was surprised that the Government committed just now to looking at those recommendations; they should have been looking at them in time for them to be considered in the passage of this Bill. That might have assisted us all.
However, the hour is now late enough. We will return to these issues in due course so, on that note, I beg leave to withdraw the amendment.