Early Parliamentary General Election Bill

Craig Mackinlay Excerpts

3rd reading: House of Commons & Committee: 1st sitting: House of Commons
Tuesday 29th October 2019 Commons Chamber

[Michael Tomlinson]

The hon. Lady makes an interesting point. I had not considered that but I do not think that it is a distinguishing feature, when voting on this measure, between whether the election is held on the Monday or the Thursday. I take that serious point on board but, in my view, if there is pressure on accommodation in December, it would be no different on a Monday than on a Thursday.

[Craig Mackinlay (South Thanet) (Con)]

Does my hon. Friend agree that we have cast aside many traditions over the last few years and that this place has got rid of what we hold dear? If we are to have a debate about the right day for an election, surely that should be done soberly and decently, at the right time. I understand that many of our EU friends hold elections over the weekend. We should have time for a debate in future and not do this on the back of a cigarette packet today.

[Michael Tomlinson]

My hon. Friend is reinforcing my primary point about why I believe that the Thursday should be preferred: it is the traditional day. I do not have the precise figures, but I am sure that the Minister will when they respond to the amendments. It is traditional that these votes happen on a Thursday. It has happened on other days, but in Mid Dorset and North Poole, that is the routine and we are used to voting on a Thursday.

--- Later in debate ---

[Sir William Cash]

Absolutely, and of course that legislation was cobbled together for the very simple reason that they wanted to keep in with the Liberal Democrats. That was the real purpose of the Fixed-term Parliaments Act, and it was one of the most pernicious aspects of the coalition.

I understand, by the way, that part of the coalition deal included a plan to get rid of the 1922 committee. The coalition wanted to bring Ministers into that committee, which would have destroyed it. I fired what could be described as an almighty Exocet, and guaranteed that Ministers would not be allowed to vote—on the pro bono advice that we received from a very eminent QC whom I instructed.

A book by Matthew d’Ancona was brought to my attention a few months ago. On reading it, I found—to my astonishment but great interest—that the then Prime Minister, in a conclave with his closest advisers before the coalition began, was talking about the coalition and how he was going to conduct his Prime Ministership, and he said to those advisers, “I have a choice to make. Am I going to go into a coalition with Nick Clegg or Bill Cash?” I found that most interesting.

That is why this clause stand part debate is highly relevant. We have this extraordinary situation in which the whole issue of an early general election is, largely speaking, the product of all the shenanigans on the Opposition Benches and the other shenanigans with our own colleagues in the House, some of whom lost the Whip and all the rest of it. I strongly believe that this business of having a general election, which, but for this Bill, would not have been put through, is connected with the very reason why people wanted a coalition back in 2010, which was to stop people like me banging on about Europe—I remember the then Prime Minister saying that—but they did not have a chance. That point has to be made.

[Craig Mackinlay]

My hon. Friend is making the most excellent points about the drawbacks of the Fixed-term Parliaments Act, which he was opposed to. Does he think that there is a salutary lesson here that this place should not legislate in haste at any time? Does he share my concerns about the rapidity and danger of the Benn surrender Act, which will stain this House for many years to come? Its effects are being seen today and will be with us for a very, very long time.

[Sir William Cash]

That is absolutely right.

Over the centuries, Parliaments have acquired their own names. For example, we have had the Barebones Parliament, the Rump Parliament and the Addled Parliament, and there has been the Mad Parliament. This Parliament ought to be called what it has now become—the Purgatory Parliament, with the shenanigans from the Opposition and from those who have been determined to remain in the European Union at any price. I have often had to upbraid them. I remember saying:

“I have heard of rats leaving a sinking ship but never of rats trying to sink a leaving ship.” —[Official Report, 18 July 2018; Vol. 645, c. 503.]

That remains on the record from some months ago. I say it again for this reason: I believe very, very strongly that it is unconscionable that we should not have this general election. We need it because, above all else, we had the referendum which was itself put into effect by virtue of this House deciding, by six to one, that it would have it. That was in the parties’ manifestos. Opposition Members voted—some of them did and a few did not—by 499 to 126 for the European Union (Notification of Withdrawal) Act 2017. Every single Conservative Member of Parliament, even the right hon. and learned Member for Rushcliffe (Mr Clarke), voted for the European Union (Withdrawal) Act 2018, which received Royal Assent on 26 June 2018.

Early Parliamentary General Election

Craig Mackinlay Excerpts

Wednesday 4th September 2019 Commons Chamber

[Craig Mackinlay (South Thanet) (Con)]

I think that I have an apology to make, and that is to Brenda from Bristol. On a personal basis, I think I have only just got over the 2015 election. However, we need to ask ourselves: what can this Parliament now achieve? Can it deliver the bold new agenda that a new Prime Minister wishes to put in place for this country? Would this Parliament even approve a bold and ambitious Queen’s Speech to put into statute in the future? Would it approve a Queen’s Speech to put 20,000 new police on the streets and to strengthen our criminal justice system? The answer must be no, or at least rather doubtful. There could be an issue of confidence if a Queen’s Speech is voted down, so possibly this place is only putting off the fateful day.

What we have seen this afternoon is more of the same from a moribund Parliament, while the public simply shake their head in dismay at what is going on in this place. It is bizarre, is it not? There are those in this House who will not countenance leaving the European Union without a deal.

[Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

It is very clear that the Prime Minister wants a cut-and-run general election. Surely, if he loses the vote that he has called tonight, as he has lost many other votes, the Prime Minister should simply follow his convictions and resign: go—go! But no, we know he wants to cut and run before the disaster that is coming. He will be lashed to the tiller and lashed for the disaster, and he should know that.

[Craig Mackinlay]

I certainly hope that, after that intervention, the hon. Gentleman will support this motion, so that the people can make their decision as well.

[Mr Nigel Evans (Ribble Valley) (Con)]

Has my hon. Friend ever heard so many Opposition Members crying out for an early general election, as they have done for the past two years? The Prime Minister is now giving them that opportunity, and they are running scared. They are not just running scared from the Prime Minister and the next general election, but running scared from the people of this country, who in 2016 said that they wanted to leave the European Union, and it is Opposition Members who are denying them that opportunity to leave the EU. Does my hon. Friend agree that if the British people get the chance to have an early general election, the Conservative party will win it?

[Craig Mackinlay]

I thank my hon. Friend for that powerful intervention. I could not agree with him more.

To get back on track, there are those in this place who will not countenance leaving without a deal. It is quite strange—is it not?—that they are the same people who go to their local market every week and will walk away from a trade if the price or quality is not right. If I said to the Leader of the Opposition, “I have a rusty old heap of a car. It’s yours for £15,000,” I am sure he would just take it without looking any further.

When this House was presented with a withdrawal agreement by the previous Administration, I obviously voted against it because I felt it was a lousy, rotten deal. I do not need to put those objections further tonight. There are many others—I am looking at them—who voted against that deal, the now-defunct withdrawal agreement, because of pure party politics.

[Sandy Martin (Ipswich) (Lab)]

rose—

[Craig Mackinlay]

No. Let me make progress. They claim they wanted a deal. As we know, that withdrawal agreement gave the vassalage and perpetual homage to the EU that many of them now seem to crave. It is now clear that this House would not agree a deal even if it were gold-plated. This House no longer reflects the will of the people of this country, who gave that clear message to us—to this Parliament—that we should respect that vote in 2016. They want us to get on with the job. They want us to leave on 31 October. They have waited long enough.

This Parliament serves no further purpose. It is time for a general election. It is time for that people’s vote that many are asking for. It is time to stop those critics who say that our Prime Minister is not properly elected. They can put that right by voting tonight for a general election, and I support that wholeheartedly.

Oral Answers to Questions

Craig Mackinlay Excerpts

Wednesday 10th July 2019 Commons Chamber

[The Prime Minister]

Obviously, we recognise the importance of ensuring that children have access to high-quality care. We have been putting extra money into social care, including for children. But it is also about the sorts of services that are delivered. It is important for us that we have taken a number of steps to improve the facilities that are available for looking after children in communities where those children require that—for example, the standards we have set for social workers. We do see the number of children’s services that are rated “outstanding” growing across the country. I think that is important; that is a Government who are actually looking at the issues that matter to parents and to children.

[Craig Mackinlay (South Thanet) (Con)]

My right hon. Friend may be aware that the live animal export season out of Ramsgate port is, shamefully, in full swing, with a further shipment due out tomorrow. Does she agree that long-distance live animal exports, particularly across the channel to an unknown future, should not form part of any future post-Brexit agricultural policy, when we can be free of single market strictures that treat animals as mere goods?

[The Prime Minister]

Obviously, my hon. Friend has raised an issue that I know is of concern to a lot of people. We are committed to maintaining our high standards on animal welfare, and food standards, once we have left the European Union. We will be replacing, of course, the EU’s common agricultural policy. What we will be doing is enabling ourselves, by being outside the European Union, to take decisions for ourselves, so we will be able to determine needs. That is an important first step towards a better future for farming—for our natural world. It is important for us to be able to do that and to maintain the high standards and quality standards for which we have a very good reputation across the world.

G20 and Leadership of EU Institutions

Craig Mackinlay Excerpts

Wednesday 3rd July 2019 Commons Chamber

[The Prime Minister]

Yes, I was able to raise with President Erdoğan and with President Putin my concerns about the need to come to a political settlement in Syria. I also raised very specific concerns about the situation in Idlib and the need to ensure that we de-escalate tensions in that area. So the answer to the hon. Gentleman’s question is, yes I did raise it in a number of the meetings that I held.

[Craig Mackinlay (South Thanet) (Con)]

With more EU citizens than ever now critical of the EU project, I wonder whether my right hon. Friend has considered how those hours of horse-trading look to those citizens. We have Ursula von der Leyen, the Commission President, who seems intent on creating a US-style new country and an EU army. We have Christine Lagarde for the European Central Bank; hers is perhaps the only name that we recognise, but we do so, I think, for all the wrong reasons. This new group of those in the top jobs seem to have federalism at the heart of their agenda, stripping more powers away from national Governments, and for any problem the answer is more Europe. Does my right hon. Friend agree that that proves without any doubt that the Commission—and its institutions—has no regard or care whatever for the electorates it is there to serve?

[The Prime Minister]

The nature of the European Union for the future will be a matter for the 27 remaining member states, because of course we will be leaving the European Union. I think it is right that those who have been appointed, or nominated, for those appointments are those who have shown their competence to undertake the roles in the future, but, as I say, how they shape that—how the future of the European Union is taken forward—will be a matter for the 27.

Parliamentary Buildings (Restoration and Renewal) Bill

Craig Mackinlay Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 19th June 2019 Commons Chamber

[Neil Gray]

I totally agree, which is why I am pushing these amendments.

[Craig Mackinlay (South Thanet) (Con)]

The hon. Gentleman is making the case that there is too much capital expenditure in London and the south-east on this project. I remind him of the massive expenditure on the two aircraft carriers built in Rosyth in southern Scotland, at enormous expense for the Union’s taxpayers, for the benefit of Scottish companies and Scottish labour.

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

Order. We have a debate on amendments and Members are meant to be speaking to those amendments. I am not going to let the debate drift wherever people decide they want it to drift to. We will now go back to Mr Neil Gray. We need to get back to where we should be.

--- Later in debate ---

We have to take a grip now, and the way to do that is not to hand control to the Delivery Authority. I am not saying that it is in any way wrong, and it is certainly not corrupt, but many of its advisers and experts come from the world of architects, surveyors and builders and they have a certain ethos, and if we tell them we want a gold standard operation and that cost is of no importance, they will take us for a ride. They will not do it deliberately or corruptly, but I firmly predict that we will have PAC hearing after PAC hearing and we will be shocked at the waste of public money.

[Craig Mackinlay]

I hear what my right hon. Friend says about the Comptroller and Auditor General having access to the records under new clause 1, but I am concerned that there is not a sufficient value-for-money assessment and that we might be, to put it in general language, taken for a ride with this project.

[Sir Edward Leigh]

Value for money is what the PAC and the NAO are about. That was a very good intervention.

I hope the Minister can convince us that his No. 1 concern is safety—this is a world heritage site and we do not want it burning down or flooding—but the No. 2 consideration must be value for money. That is what worries me—again, without going into past grief—about many of the present plans. We have heard about architectural significance from my hon. Friend the Member for East Worthing and Shoreham, and I am worried about the proposal to demolish Richmond House. It is an important modern building that has won architectural awards, but I am worried not just that we might be knocking down a listed building but that this would again create an opportunity for waste. I will always look for the cheapest option, and I have been arguing that if we have to leave the Chamber—I accept the decision of the House that we will leave for a time—we should use the courtyards to build a temporary Chamber rather than knocking down large parts of Richmond House.

Unfortunately, we have told the Delivery Authority that there has to be an exact replica of where we are standing, with the same size Chamber, the same height and the same width in the Division Lobbies. I am not sure that that is entirely necessary—[Interruption.] The hon. Member for Rhondda (Chris Bryant) is shaking his head. If I am wrong, I am wrong, but I am saying that if we can have a cheaper option with a narrower temporary Chamber that can be used for other purposes afterwards, and if we have to have electronic voting and not go through wide Division Lobbies, we should consider all those options. This is not a matter for today, but it all comes down to value for money, and it is important that we highlight these matters in these debates.

Oral Answers to Questions

Craig Mackinlay Excerpts

Wednesday 13th February 2019 Commons Chamber

[The Prime Minister]

First, happy birthday to the hon. Lady. We are reviewing the situation, and we are also looking at what applies in other circumstances, such as miscarriage. I will ensure that she receives a written response.

[Craig Mackinlay (South Thanet) (Con)]

The Leader of the Opposition has shown today that a little knowledge is a very dangerous thing. He chose to ask about Seaborne Freight and Ramsgate port, which is in my constituency, but he does not speak for South Thanet; I do. Can my right hon. Friend assure me that the people of Thanet are ready and prepared to keep the port open for Brexit eventualities? Can she give a commitment to Thanet District Council that it will be indemnified for costs here on in?

[The Prime Minister]

No one can doubt the passion and vigour with which my hon. Friend speaks up for the people of his South Thanet constituency. He mentions Ramsgate port, and I am aware of the discussions between the council and the Department for Transport, and I believe that they are continuing. Obviously, I recognise the significance of the possibility of ensuring that suitable capacity is available at Ramsgate harbour, and I will ensure that the Department for Transport looks at the specific issue that he raises.

Leaving the EU

Craig Mackinlay Excerpts

Tuesday 12th February 2019 Commons Chamber

[The Prime Minister]

What this House voted for was an amendment that confirmed avoiding a hard border between Northern Ireland and Ireland, confirmed that this House wished to leave with a deal and confirmed the issue that needed to be addressed for this House to agree a deal, and that was the issue of the backstop.

[Craig Mackinlay (South Thanet) (Con)]

I visited Brussels last week as a member of the Exiting the European Union Committee, and we met Martin Selmayr. Whether or not I believe him is another matter, but he explained to us that he could see no reason why the Commission would ever want to use the backstop. From the Government supporting the Brady amendment two weeks ago, I have to assume that the Government do not want the backstop. Parliament does not want the backstop, and the Northern Ireland public and the public across the rest of the UK do not want the backstop. May I ask my right hon. Friend: why is it still there?

[The Prime Minister]

Nobody wants to use the backstop. The reason the backstop is there is that it is the guarantee that there will be no hard border between Northern Ireland and Ireland in the circumstances in which the future relationship has not come into place at the end of the implementation period. There is an alternative available within the withdrawal agreement, which is a further extension of the implementation period. There are pros and cons in both of those positions. Of course we want to see change to the backstop, but there are issues around the fact that in the implementation period there would almost certainly be a request for money, which does not occur in relation to the backstop. It is there as a guarantee. It is like an insurance policy: you take it out, but you never want to have to use it.

Election Law Reform

Craig Mackinlay Excerpts

Monday 11th February 2019 Commons Chamber

[Craig Mackinlay (South Thanet) (Con)]

I am pleased to be afforded the Floor of the House for this Adjournment debate on the reform of election law. Many might ask, “What does it matter?” Naysayers might say that this is a debate in defence of ourselves. Well, perhaps, but this is serious. Our election law is a mess, leaving candidates and agents exposed as never before to the real risk of criminal prosecution, so this cannot wait—it needs solving now.

Election law is important, as it defines the type of democratic institutions that we have. The playing field must be fair and equal, and seen to be so, and the results of elections need to be respected as just and fair. That must be encapsulated in our election law.

[Jim Shannon (Strangford) (DUP)]

I thank the hon. Gentleman for giving way before he gets into the thrust of his contribution. I asked his permission to intervene beforehand.

In Northern Ireland we have made many, many changes to electoral law, particularly for stricter controls on registration and identification. That is not the subject of this debate, but does the hon. Gentleman agree on the need for voter ID in the mainland? We have done it in Northern Ireland, and it has done away with a lot of discrepancies in voting. That may be a separate issue but, none the less, does he agree it is important?

[Craig Mackinlay]

I thank the hon. Gentleman. He raises a wider debate about voter registration, and I would not object to its application on the mainland. I see nothing wrong with every single voter having a unique identifying code so that people cannot vote in two places, for instance. I would welcome moves towards that.

Through no design of mine, and for obvious reasons, I have come over the past two years to know, rather too closely, the intricacies of election law. I do not intend my contribution to descend into a personal rant against the Electoral Commission, the Crown Prosecution Service and Kent police, which led me to a three-month trial and subsequent acquittal, but I hope some good can come from my experiences by being a catalyst for the reform of election law, which was recently described by a retired professor of election law, Bob Watt, as a “compost heap”.

We have two key statutes: the Political Parties, Elections and Referendums Act 2000, often referred to as the PPERA; and the Representation of the People Act 1983, often called the RPA. The PPERA was enacted to reflect the reality of modern politics, and it created the Electoral Commission, a statutory body with powers over election processes and guidance setting for candidates, agents, political parties and, importantly, local authority electoral staff.

The Electoral Commission has a budget of £17 million and employs 134 staff. It oversees and controls national party spending, donations and reporting and the regulation of third-party campaigners, among other things. Members may not be aware that it is from the PPERA that ballot papers have thereafter had the candidate’s name and the logo of the national political party for whom they are standing. That was a recognition of the reality that the electorate vote for political parties. Few of us in this House would be so bold as to claim that the electorate vote for us solely as individuals—if only that were true; they vote in larger part for the party messages, for the perceptions they have of party leaders and for the national party manifestos. This legislation set spending limits of close to £20 million for registered political parties to spend across the UK in the regulated period of a year prior to a planned and forecast election as envisaged by the Fixed-term Parliaments Act 2011.

We then have the law that is more relevant to us. It is relevant to candidates and agents across elections, no matter what their type, be they parliamentary, Assembly Member, council, mayoral or police and crime commissioner elections. I refer to the Representation of the People Act 1983, which is the legislation I would like to focus upon this evening. I wish to focus on two small sections—sections 90C and 90ZA. It was on the construction and interpretation of these two sections that the entire case against me was founded, and it is from these things that we need to learn and change. In broad terms, the 1983 Act governs candidates’ returns, spending limits, timings, agents’ and candidates’ responsibilities, and, importantly, various offences, notably against those not authorised to spend money on a campaign. There is a clear prohibition in section 75 of the Act, with punitive criminal sanctions against those who spend without the authority of the election agent.

Those small sections are detailed and they are often not understood, so I will advance to the House what they mean. Section 90ZA explains the common meaning of “election expenses”. Subsection (4) outlines the concept of “incurred and authorisation”, and this accords to the long-held view that election expenses can be so only if incurred or authorised by a candidate or agent. This interpretation, relied on by all political parties, has roots going back to 1868 legislation in another form. If not authorised, an offence can be committed by the person incurring expenses under section 75 of the Act. This seemingly clear interpretation was to prevent those who might want to interfere with an election from doing so—or else face criminal proceedings. It also provided candidates and agents with the power to control what is spent on the campaign they are legally responsible for.

Section 90C explains what to do if goods, services or facilities are provided free or at a discount, for instance, where a friendly printer provides printed material, perhaps as a party supporter. It is clear and people fully understood what it was there for; the concept was simple. The section dictates that the item, service or facility given free or at an undervalue should form part of the election expense return at a proper market value rate, subject to some simple de minimis rules.

My case passed through a long trail of court interpretations before criminal trial. At an early application to dismiss, which was rejected, we argued that the normal interpretation of section 90C—the discount or free provision—could apply towards a candidate’s election expenses only if such a good, service or facility had been properly authorised in the first place by the candidate or agent under the normal authorising provisions of section 90ZA. It has long been the understanding of colleagues in this House and experienced election law Queen’s counsel, some of whom write the textbook on election law, that the rules always intended that agents were responsible for the finances of election campaigns. Candidates will be focused on meeting electors and winning votes during the campaign period—we will all be familiar with that. The law intended agents to be involved in all the spending decisions in a campaign, either by spending themselves or permitting someone else to spend on their behalf. They, or the candidate, are meant to authorise any spending on the campaign, so that all expenditure goes through them. As a result, the agent is then liable to produce a full, “true” return of all this spending and be responsible for keeping within the legal spending limits.

The Act also takes steps to try to ensure that others are dissuaded from spending on an election campaign without this authorisation from the agent or candidate. Section 73(6) and section 75 provide for offences for people who make payments for the campaign or who spend on campaigning without the agent’s express permission. Anyone spending or making such payments without authorisation—written authorisation should be the norm—risks committing an offence. If others are willing to take the risk of committing an offence by spending or paying expenses without authorisation from the agent, that would be a criminal matter for them. This does not mean there is a free pass for people to flout spending limits by simply refusing to give authorisation for spending which others decide to incur anyway. So it is clear that the baton of the risk of illegal activity passes from the agent or candidate to the individual deciding to incur the unauthorised expense. We all have some strong and great supporters in our constituencies who are keen to help, but I expect that none would flout the wishes of the candidate and agent and decide to place themselves in jeopardy. Then there is a deterrent to third parties incurring expenses without authorisation.

The judge in an early part of my ordeal did not agree with this long-held interpretation and interpreted that the legislation should mean that anything used to the benefit of a candidate or to denigrate their opponent, used either by the candidate or, more worryingly, simply “on their behalf”, should be included in a candidate spending return, regardless of whether it was authorised or not. This was appealed to the Court of Appeal, in front of the Lord Chief Justice. That appeal was successful and the normal ground was seemingly restored.

The Crown Prosecution Service, with the Electoral Commission attaching itself as an interested party, appealed the Appeal Court decision to the Supreme Court. That appeal was heard on 23 May 2018, with judgment given on 25 July last year. In summary, that decision overturned the Appeal Court decision and has to stand as the ultimate authority on the interpretation of sections 90C and 90ZA of the 1983 Act.

[Andrew Bridgen (North West Leicestershire) (Con)]

I wish to recap. Worryingly, a candidate in an election could be liable under the law for spending on his behalf that he neither authorised, nor was even aware of.

[Craig Mackinlay]

I am grateful to my hon. Friend, as he has encapsulated the issue in a few brief sentences. I will be expanding on that in the remainder of the debate.

The Supreme Court decision ruled that under section 90C free goods, services or facilities for the “use” or “benefit” of the candidate, arranged either by them or on their behalf, must be included in an election return. In addition, and this goes to the point made by my hon. Friend, authorisation or even, it would seem, full knowledge of the candidate or agent is not required, and only active refusal might—I stress might—be the only possible defence. It is difficult to see how that could be done if the candidate or agent is unaware of the matter concerned or the costs involved.

The Electoral Commission does not come off unscathed by that Supreme Court judgment. Paragraph 28 of it states that

“the Electoral Commission's helpful guidance documents issued over several years, whilst they certainly both address the question of apportionment of expenditure between party and candidate, and deal with the concept of free or discounted services, nowhere appear to alert readers to the possible link between them, nor to the application of the notional expenditure rules to what must sometimes be a difficult exercise of separating local from national expenditure.”

Let us overlay that statement about the Electoral Commission with some of its own written output on the launch of a consultation on a new draft code of practice on 10 September 2018:

“We hope these Codes will make it easier for you to submit your own or your party’s returns, simplifying the process and removing any blurred lines that there might have been”.

It goes on:

“In responding to this consultation you’ll help us to further demystify the process and remove any confusion that you or your party may have over the process of campaign reporting.”

So, we have an acknowledgement by the Electoral Commission of problems in election law and it was admonished, to a degree, by the Supreme Court.

The only reference in the draft code published in September last year to the Supreme Court judgment is a single paragraph on page 4 of a 23-page document, which is as yet without statutory force. That single paragraph says:

“This notional spending falls to be declared as election expenses in the candidate’s return even if the items provided have not been authorised by the candidate, the candidate’s agent or someone authorised by either or both of them, R v Mackinlay and others (Respondents), UKSC 42, 25 July 2018.”

That is it: this fundamental change in interpretation encapsulated in a few lines in a draft code of practice, with no guidance as to what it might mean in practice. If the hope was, to use the Electoral Commission’s words, to demystify and remove blurred lines, the Electoral Commission has comprehensively failed.

[Mr Mark Harper (Forest of Dean) (Con)]

I think my hon. Friend has answered this question, but to pick up the point made by my hon. Friend the Member for North West Leicestershire (Andrew Bridgen), did the Electoral Commission suggest in the draft code of conduct how a candidate was supposed to know, or to be able to account for, that information in any practical way? Or did it leave that open?

[Craig Mackinlay]

My right hon. Friend highlights exactly what he might have expected, but I am afraid he will be disappointed, because that is it. There is not one additional word of guidance as to how this change of interpretation might be administered on the proper battleground of elections.

[Ian C. Lucas (Wrexham) (Lab)]

The hon. Gentleman is making an important and helpful speech. Was the issue of whether the money was national spend or local spend within a political party relevant to the finding he is describing? For example, some Conservative national spend for an individual constituency might not have been authorised by the agent. Was that the reason the decision was made in the way that it was?

[Craig Mackinlay]

The hon. Gentleman highlights the issue at stake, which is at the core of the Supreme Court judgment, but we are still left with this ambiguity as what others might do that the candidate might not know about. Matters of which the candidate has little to no knowledge, and activity that they certainly had not authorised, would have to be part of an election return.

[Ian C. Lucas]

I have great sympathy for the ordeal, as he described it, that the hon. Gentleman has gone through. We all have experience of elections and agents. The central point that he has indicated is really important: individual authorisation should be obtained from the individuals concerned. That requirement should be adhered to and, if that has not happened, that is deeply regrettable.

[Craig Mackinlay]

The hon. Gentleman makes reference to the full understanding of election law dating back to 1868 and in its various guises since. It is only now that the Supreme Court has overturned what we had all accepted as the normal happenings and procedures of election law for all these years. It has confounded many election specialists.

Let me pick up where I left off. As yet, the draft code has no statutory force. In just 51 days, we will be appointing candidates for local elections and in 80 days the local elections will be taking place throughout the country, possibly in just about every constituency. The Electoral Commission currently proposes to put thousands of local election candidates into battle with no clue as to what they should do to stay properly within the newly interpreted law.

[Alex Chalk (Cheltenham) (Con)]

Does my hon. Friend share my concern that these issues, with which the Electoral Commission is grappling very late in the day, have been known to us for many years? Regrettably, the Electoral Commission has dragged its feet in addressing these issues. It should do so in a way that provides clarity and certainty for people who could otherwise be liable to prosecution.

[Craig Mackinlay]

I thank my hon. Friend for his intervention. There is one person in this House who has been liable to prosecution: I have had the full force of that.

As I shall ask a number of times in my speech, is the Electoral Commission fit for purpose? Was the commission’s preferred interpretation of the relevant sections of the 1983 Act, which it used in support of my prosecution and, it seems, for no other obvious purpose, included in the 2015 guidance for candidates and agents? No, it does not appear anywhere. Did it find its way into the revised guidance for the 2017 general election, under which everybody in this House fought for election? No, it does not appear anywhere. Armed with the result of the Supreme Court judgment, to which the Electoral Commission was attached as an interested party, did the commission finally incorporate it into its most recent guidance for the local elections in England in May 2019? Did it incorporate within that guidance the definitive Supreme Court interpretation of sections 90C and 90ZA of the 1983 Act? I think you know the answer, Madam Deputy Speaker, and it is no. Why did the Electoral Commission intervene, at public expense, if it had no intention of advising candidates and agents, on pain of criminal prosecution, as to the proper interpretation of law following the judgment in its favour? Is the Electoral Commission incapable of speaking with itself? I ask once more: is it fit for purpose at all?

A huge grey area has now opened up. What if someone decides, without recourse to the candidate or agent for authorisation, to print and deliver thousands of leaflets saying “Vote for X”? This could cost the individual thousands of pounds, which they decide to pay themselves. Once it is printed and delivered, they inform the candidate and agent about the unwanted help that they have provided and paid for. Unknown to them is the fact that the candidate has no headroom left in their election budget for this kind of spending, which would breach the legal spending limit. The leaflets are clearly for the benefit of the candidate and they have obviously been used. They are notional, as they are free, because the third party has paid for them. The Supreme Court’s new interpretation of section 90C requires that that cost must be recorded, and in the circumstances that would breach the spending limit for the candidate and agent, with all that that might entail.

Candidates and agents need to know the risks they face. Clear warnings should be given in Electoral Commission guidance. Remember that it is candidates and agents who face criminal sanctions if spending limits are breached. Under the Supreme Court’s judgment, they lose control of spending should anyone else decide to offer their support for free, whether it is wanted or not. How can anyone hope to budget for an election campaign under such a system? We all need clarity from the Electoral Commission. It pushed for this interpretation of the law and won at the Supreme Court, so how do we deal with it in practice? At the next election, might people provide free goods and services on behalf of, say, the right hon. Member for Islington North (Jeremy Corbyn), or my right hon. Friend the Member for Maidenhead (Mrs May), to the extent that they breach their spending limits? Will we then find them massively embroiled in police investigations and court cases? There are those who may decide to take such action and spend money simply to cause chaos. The Electoral Commission has yet to step up to the plate and explain how the interpretation that it pushed for and won on in the Supreme Court will play out in practice.

I shall dwell only briefly on some of the errors that have put people to threat of financial and criminal sanction, at the doors of the commission and its guidance. The commission offers, in its own words, “bespoke advice” to campaigners and parties. Let me highlight but one recent publicised example. Vote Leave sought that bespoke advice, on offer for free, in respect of activities during the referendum campaign. It seems that Vote Leave acted on that advice and has now been accused of breaking the law—by acting on Electoral Commission advice, which is now considered to be the wrong advice. You could barely make it up.

Battle buses have probably been part of election campaigning since buses were invented. An investigation into the Conservative party concluded with a report published on 16 March 2017 and led to fines. No similar investigation was made into the use of battle buses by any other party or by any third-party campaigners. There appears to be a lack of even-handedness in the activities of the commission across much of what it does and whom it pursues. Its status and reputation are not helped when its current director of regulation has posted anti-Conservative social media messages in the past and has provided witness statements for court use against Conservatives, including me, but against no other political party.

All political parties and candidates use correx boards—we are all familiar with them in this House. They have become the usual stock in trade at all elections. These boards are rugged—we are familiar with their construction—and would last for many years, save for the inevitable criminal damage, I am sorry to say, that characterises many modern election campaigns. Across all of these documents—of 2015, 2017, and 2019—is there one word of advice on how correx boards should be treated and how criminal damage should be reconciled and accounted for? Everyone will be familiar with my answer by now—it is no. There is not one word of advice.

The Electoral Commission offered substantial evidence during my criminal trial. Its view was that correx boards should be written off and recorded in full at the first election that they are used. I can only say, “Really?” Then say so in published guidance. Let us examine what its current perceived position really means. Let us say that successful candidate X wins in a safe seat that is likely to be held for many years. That is common for many in this House. If the boards were to be expensed through the election return at the first outing, at the second outing, there would be nothing to declare because they cannot be counted twice. The new Opposition candidate at the second election would be at an immediate disadvantage on needing to buy expensive correx boards just to keep up, while the sitting MP would have a zero cost to declare, allowing a spending advantage, as budget could be used for additional leaflets or other election promotions. I ask again: is the Electoral Commission fit for purpose? Does it actually understand what it is there to regulate?

Let me give a few examples of the perversity of the law and the situation we now find ourselves in following the Supreme Court judgment. This would certainly apply should we face—heaven forbid—a premature general election. What would be the status of a supporter—or, probably more accurately, a spoiler—deciding to hire an aircraft with a trailing banner of support which is not wanted or assented to by the candidate or agent? The benefit test and the on behalf test under the Supreme Court ruling would have been met, the candidate would probably have seen it and, as such, they would need to account for it as an election cost, potentially exceeding their election budget and placing themselves under threat of prosecution under the criminal code. That would mean a loss of seat, fraud charges, a criminal record, costs and loss of any professional qualifications—potential ruination.

How would senior members of a party possibly tour the country at an election, as is the usual and expected standard practice? This would be deemed, under the benefit test under the Supreme Court, to be in support of the candidate in the particular constituency visited. The Nicola Sturgeon helicopter alone would break the budget of the candidate visited, as would the security and travel costs for the PM or the Leader of the Opposition.

I have saved the most perverse example, which is relevant to this age of digital campaigning, until last. What if a foreign national or hostile foreign Government were to spend on Facebook advertising in support of—or denigration of—a candidate but it is entirely unwanted by that candidate? The benefit and use tests under the Supreme Court ruling would have been met. If the candidate were able to obtain the cost of the advertising from Facebook and find who placed it—in itself a tall order—how many impressions would be relevant? Were the impressions seen by non-voting businesses or by minors, they would not be an election cost, but impressions viewed by those of voting age would. However, the law and Election Commission guidance state that an honest assessment needs to be made. Under the newly interpreted understanding of section 90C of the 1983 Act, an honest assessment would need to be made. Might this pitch the election expenditure over the limit, with all that follows? The double entry of election expenses requires, at all times, the identification of donors. So, madly and perversely, the candidate could find themselves in a double illegality because a second illegal activity would be deemed to have taken place by the recognition and deemed acceptance of an illegal foreign donation.

It is very easy to speak in an Adjournment debate just to have a moan, but tonight I wish to conclude with some solutions—I have a number of them. Might higher local candidate spending limits and lower national party spending limits be the answer, so that any interpretative complications at the margins would at least allow sufficient latitude for the candidate to be on the correct side of the law and spending limits? Legislative change needs to be forthcoming—it is urgent; it is needed almost within days. I have proposed a most simple and elegant solution. It is available to Ministers under a simple statutory instrument, which I recommend be passed with all haste.

Schedule 4A to the 1983 Act lists what are election expenses under part 1 and what are not election expenses under part 2—for instance, if a candidate drives themselves around in their own car. The Secretary of State has wide powers under section 15 of the Act to make orders to add or subtract from parts 1 and 2. A simple addition, in these words, to part 1 would clarify the law and revert matters to what I believe Parliament always obviously intended under the Act. It reads:

“Notwithstanding that a matter might fall to be included within Part 1”—

that is the “what is”—

“of this schedule because of section 90C of this Act”—

the deeming provision that the Supreme Court has now come to—

“it would only be deemed an election expense if section 90ZA(4) also applies.”

It is section 90ZA(4) that requires authorisation by an agent. In easy terms, this would restore, within threeand a half lines, the position that election expenses can only be so if properly authorised by a candidate, agent or somebody properly authorised by them. With this in place, we can start to unload what has been described as the compost heap of election law in due course and replace it in the longer term with legislation that is fit for purpose. But candidates and agents deserve protection right now.

[Mr Jonathan Lord (Woking) (Con)]

I am fortunate to have an excellent agent, Simon Ashall, who is fully trained, but—my hon. Friend has brought this issue out in his excellent and important speech—even he is in a muddle about some aspects of our current electoral law. There were 3,304 candidates at the last general election, and only a few hundred, at most, will have had a professional agent. A really good and experienced agent does not feel that he can be on top of things. My hon. Friend is absolutely right. We need robust and effective electoral law and regulation, but it also needs to be simplified, fair-handed and clear. I thank him for bringing this debate to the House.

[Craig Mackinlay]

I thank my hon. Friend for those robust and powerful words. As he describes, when experienced election agents treat these laws with fear, this is not a position by which any political party will be able to recruit election agents in the future. The barriers should be clear. One should know where the RPA or the PPERA kicks in. But, as my hon. Friend says, how can anybody know what cannot be known? Those are the realms that we are now in.

Candidates and agents deserve protection. There are elections in 80 days’ time and nominations for candidates close in just 51 days. I ask the Minister to act urgently, with that simple proposed statutory instrument of threeand a half lines, to bring clarity to the law and protection for all candidates and agents.

--- Later in debate ---

[Mr Harper]

I approach this matter with care, as I have been in my hon. Friend’s position in the past and know how complex this legislation is. May I just probe her on the answer she is giving to my hon. Friend the Member for South Thanet (Craig Mackinlay)? I thought that his solution was not actually making a fundamental change but putting the legislation back to what we all thought it was, and what I think Members had thought they were doing when they legislated in the first place.

[Craig Mackinlay]

indicated assent.

[Mr Harper]

I see that my hon. Friend is nodding. I do not think that he is suggesting using order-making powers to make a big change but saying that we should use those order-making powers to put the legislation back to what we all thought it was before the justices in the Supreme Court made their decision last July.

--- Later in debate ---

[Craig Mackinlay]

As I said in my speech, we have three bits of guidance: the 2015 guidance for general election candidates; the 2017 guidance, refreshed for the general election; and now the 2019 guidance for local election candidates. The Supreme Court judgment came before the publication of the 2019 rules. My right hon. Friend the Member for Forest of Dean asked a clear question: what was the intent? Was the intent of Parliament where we once were and what we all understood, or was it what the Supreme Court has finally come up with? If the Electoral Commission is so keen on what the Supreme Court came up with, why has it not put that in its latest 2019 guidance for local candidates? That is the reason I am trying to put the pitch back to what we have all understood for many years—from 1868 onwards—by a simple three-and-a-half-line statutory instrument. I recommend that this be given the most urgent consideration.

[Chloe Smith]

My hon. Friend reiterates a number of important points. He is right that this requires urgent consideration, and I have confirmed that the Government are looking at the position and want to help ensure that there is clarity. In this House, we are legislators; we are responsible for looking at the law and whether it is clear. As to the regulator’s responsibility to provide usable guidance promptly, I observe again that the Electoral Commission is separately accountable to the House. There have been questions tonight from my hon. Friend and others that the House will wish to satisfy itself of for its oversight of the Electoral Commission, which, as you know, Mr Deputy Speaker, is through the Speaker’s Committee. I encourage Members to direct some of their questions to that source. That is the right thing to do.

What I can talk about is the Government’s next steps, so let me add something in relation to the codes of practice that I have mentioned. First, the commission concluded its public consultation on them in December 2018, and Ministers will review those draft codes before they are put to Parliament. Again, I emphasise that because that is the right and proper opportunity for the Government to contribute their part, but also for this Parliament to do so. The commission aims to have them approved by Parliament in time for elections in 2021. The Government will continue to work with the Electoral Commission on the statutory codes of practice, because we recognise the importance of having clear and accessible codes to provide further clarity on electoral spending.

Oral Answers to Questions

Craig Mackinlay Excerpts

Wednesday 27th June 2018 Commons Chamber

[Mr Lidington]

Let us consider this:

“It simply would not have been possible to build or refurbish such a number of schools and hospitals without using the PFI model.”—[Official Report, 14 November 2007; Vol. 467, c. 665.]

Those are not my words, but those of Gordon Brown, the last Labour Prime Minister.

[Craig Mackinlay (South Thanet) (Con)]

My right hon. Friend might be aware of a petition in Gibraltar for it to have an MP elected to our Parliament. The petition now has close to 10,000 signatures, which is almost half the electorate of the rock. Will he therefore consider backing my private Member’s Bill to give Gibraltar the option of electing an MP to this place and reward Gibraltarians for their unwavering loyalty?

[Mr Speaker]

That is an extreme case of shoehorning in a particular concern, but it suffers from the disadvantage of bearing absolutely no relation to the question on the Order Paper. The hon. Gentleman has made his point in his own inimitable and mildly eccentric way, and we are grateful to him for doing so. Let us have a question that is in order.

Oral Answers to Questions

Craig Mackinlay Excerpts

Wednesday 16th May 2018 Commons Chamber

[Priti Patel (Witham) (Con)]

3. What steps his Department is taking to enable a wider range of businesses to bid for and secure public sector contracts.

[Craig Mackinlay (South Thanet) (Con)]

11. What steps his Department is taking to support the use of small businesses in Government procurement.

[The Parliamentary Secretary, Cabinet Office (Oliver Dowden)]

Small businesses are the engine of our economy, and we are determined to level the playing field so that they can win their fair share of Government contracts. That is why, last month, I announced a range of new measures, including consulting on excluding bids for major contracts from suppliers who fail to pay their subcontractors on time and giving subcontractors greater access to buying authorities to report poor payment performance.

--- Later in debate ---

[Oliver Dowden]

I thank my right hon. Friend for her question. She is absolutely right: I am committed to breaking down barriers for SMEs supplying the public sector. That is why, over Easter, I announced that we required significant contractors to advertise their contracting opportunities for SMEs on Contracts Finder. In addition, my right hon. Friend the Prime Minister has appointed an SME champion in each Department, and I have personally written to strategic suppliers to remind them of their obligation to pay subcontractors on time.

[Craig Mackinlay]

A report that I published in conjunction with the TaxPayers Alliance earlier this year found that some public sector organisations are spending up to seven times more for a ream of photocopier paper than others. What steps is my hon. Friend taking to ensure that the public sector spends taxpayers’ money more wisely in everything that they incur and spend, and will he undertake to read my report?

[Oliver Dowden]

I will, of course, undertake to read my hon. Friend’s report and will respond directly. It is precisely for this reason of getting good value for the taxpayer that we established the Crown Commercial Service to increase savings for the taxpayer by centralising buying requirements for common goods and services such as photocopier paper.