Elections Bill

Lord Collins of Highbury Excerpts

Report stage
Monday 25th April 2022 Lords Chamber

Two years ago, the Minister’s predecessor, the noble Lord, Lord Young of Cookham, confirmed that the Government accepted that the principle of a level playing field, as set out in the original 1883 legislation, is “timeless”. Is this still the Government’s policy? Do they accept the conclusions of Southwark Crown Court, which tested election law on these issues, or do they seek to overturn the decision about what was found to be illegal? Depending on the Minister’s response, I may wish to test the opinion of the House. I beg to move.

[Lord Collins of Highbury (Lab)]

I do not have much to add to the noble Lord’s contribution. We support his contention that this is an unnecessary clause. I agree that the principle is one that we should completely reaffirm, as the noble Lord, Lord Young of Cookham, did in a previous debate. We need the assurances from the Minister. If he is unable to give the assurances that the noble Lord, Lord Rennard, seeks, we will support him if he decides to divide the House.

[Lord True (Con)]

My Lords, as noble Lords will know, Clause 19 is there to clarify the law on benefits in kind and make it clear that candidates need to report only benefits in kind that they have actually used or which they or their election agent have directed, authorised or encouraged someone else to use on their behalf. We had some discussion on this in Committee, as the noble Lord acknowledges. This was already widely understood to be true, prior to the Supreme Court judgment in R v Mackinlay and others. The Supreme Court judgment has led to concerns that candidates and agents could be responsible for spending they had not consented to or were unaware of or not involved in. This is an unacceptable situation and risks a chilling effect on people willing to put themselves forward as candidates and agents.

The noble Lord has been so kind as to refer to the positive engagement we had and I thank him for his continued interest in and engagement on the topic. In response to some of the concerns he raised, including those raised again today, I am happy to provide clarity on the government position. The noble Lord, Lord Rennard, asked two specific questions and I can say to him that the Government are absolutely committed to the long-standing principle of a level playing field for general election campaigns, whether in campaigning being carried out at constituency level or nationally. The noble Lord referred to a statement made by my noble friend Lord Young of Cookham in 2019 when agreeing with the importance of the principle of a level playing field in relation to spending at elections. The Government maintain the commitment my noble friend gave; nothing in the Bill seeks to undermine that principle.

The proposals in the Bill will not change the fundamental principle that party spending in support of a particular candidate in a local area falls to be recorded as candidate spending against the local limit. Instead, the clauses bring forward changes seeking to maintain the level playing field by ensuring that all candidates and agents across the political spectrum are clear and confident in their legal responsibilities. Clause 19 also makes an equivalent amendment to the same rules for other types of campaigners, such as political parties and third-party campaigners, to ensure that the rules are consistent. We believe that these changes will bring much-needed reassurance and clarity to candidates and their agents on the rules which apply to notional expenditure for reserved elections. In combination with expanded statutory guidance—which we will discuss shortly—from the Electoral Commission on this matter provided for in Clause 20, this measure will support compliance with the rules and ensure that those wishing to participate in public life can feel confident doing so, clear in their obligations.

The noble Lord, Lord Rennard, asked a further and very specific question. I can say to him that the Government are not acting in response to the judgment of Southwark Crown Court in 2019 in relation to campaigning in South Thanet in 2015. However, the Supreme Court’s judgment in 2018 related specifically to the consideration of a particular point of law and concluded that there was no requirement for authorisation in Section 90(3) of the 2000 Act, which was contrary to the understanding of many and led to concerns about what expenses could potentially be incurred on a candidate’s behalf even without their knowledge. As a result, there have been calls from across the political spectrum for clarification of those rules. A cross-party committee of MPs, PACAC and the Law Commission have called for clarity on the rules in recent reports. The changes enacted by the Bill will only clarify the law so that it can be commonly understood. As I said, any uncertainty could lead to a democratic chilling effect, with candidates and election agents, who are often volunteers and fearful of their personal circumstances, unwilling to expose themselves to risk.

Finally, it is important to note that Section 75 of the Representation of the People Act 1983 already prohibits “local” third-party spending over £700 which has not been “authorised in writing”; therefore, it requires specific authorisation. Where such spending is authorised by a candidate, the candidate must also report on the spending incurred by the third party. If a third party, which could include a political party, spends over that threshold without authorisation, an offence has been committed. The Elections Bill does not alter this. Where a third party, including a political party, has provided property, goods and services free of charge or at a discount, or has made use of property, this must be recorded as a notional expense.

I can assure the noble Lord on those points that we are absolutely committed to the assurance my noble friend gave and that we are not acting in response to the judgment of Southwark Crown Court in 2019 in relation to 2015 and the issues of uncertainty that have arisen. Therefore, I hope that the noble Lord will accept those assurances and be ready to withdraw his amendment that would remove this clause from the Bill.

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I end by thanking all those who have thrown their weight behind making these changes and, last but not least, my noble friend the Minister and the Bill team. I beg to move.

[Lord Collins of Highbury (Lab)]

My Lords, I rise briefly to welcome and support the noble Lord. Throughout the stages of the Bill, I have repeatedly welcomed some of his contributions, particularly in relation to third-party campaigning and creating the certainty and clarity that they need to ensure that the chilling effect does not have a huge impact on our democracy. I very much welcome this, and I welcome the principle that the code of practice provides that necessary parliamentary scrutiny. We welcome these amendments.

[Lord True (Con)]

My Lords, one of the charming aspects of your Lordships’ House is that when a Minister is being chided for not listening to the House it is rammed to the gills but when the Government make a concession there are not quite so many here. None the less, I thank not only my noble friend Lord Hodgson but colleagues in other parts of the House who have made this case, including the noble Lord, Lord Blunkett, who is not in his place for perfectly understandable reasons.

The amendment would create a new clause in the Bill which would remove a permissive power that allowed the Electoral Commission to prepare a code of practice, and instead, as your Lordships have asked, replace it with a requirement on the Electoral Commission to produce such a code of conduct. It also specifies the scope of the code, sets out the consultation process and procedure for the code, and creates a defence for third parties who are charged with offences under Part 6 of PPERA. It also makes the necessary consequential amendments to Clauses 20 and 25.

As my noble friend kindly acknowledged, in Committee I promised to consider his suggestions on a code of practice for third-party campaigners. He made his arguments in good faith, on the basis of great experience and genuinely reflecting the opinions of the sector. As he acknowledged, my officials and I have since met him and concluded that these changes are necessary and important for third-party campaigners.

The new statutory guidance—I do not know whether it will come to be called “the Hodgson guidance”—will provide certainty for third-party campaigners on how to comply with the rules relating to third-party campaigning. The amendment provides for the guidance to be comprehensive, and I say to my noble friend that it is our hope that this will address the term “the public” used in Part 1 of Schedule 8A on qualifying expenses.

The amendment requires the commission to consult the Speaker’s Committee on the Electoral Commission and the Levelling Up, Housing and Communities Committee, as in our earlier proposals on the strategy document. It also requires the commission to consult such other persons as the commission considers appropriate. As part of the statutory consultation, the Government would certainly expect a cross-section of civil society groups to be consulted; I can give my noble friend that assurance.

I am pleased to confirm that the Government are fully supportive of these three amendments, and I very much hope that your Lordships will support my noble friend.

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I therefore urge noble Lords to support my amendments, and I beg to move Amendment 55.

[Lord Collins of Highbury (Lab)]

My Lords, I will be very brief again. I accept that, in Committee, I went on at length about this issue, although I did not repeat that later on. I accept that the noble Lord has entered into some proper consultation with the TUC and TULO. I welcome those meetings, and I certainly welcome the letter he wrote to both Frances O’Grady and Mick Whelan. It was welcomed particularly in reference to Clause 26—not only the reassurance that this will come from the Electoral Commission, but that there will be proper parliamentary scrutiny. So I very much welcome the Minister’s response and the fact that this House has been able to influence him in removing a clause from the Bill. I thank him very much.

Amendment 55 agreed.

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[Lord Collins of Highbury (Lab)]

My Lords, we had a lengthy debate on this in Committee and I accepted what the noble Baroness the Minister said at the time, that actually the requirements in the current law will be strong enough to ensure that the principle that we all want—greater transparency—will be applied. Certainly, I accepted that and understood it, because I think we all shared the concern that “reasonably practicable to comply” could be a huge loophole and she assured us that that would not be the case. We also discussed in Committee the fact that the industry itself, the online industry, had produced the means to ensure greater transparency. I made reference to the Adobe briefing, which I think is really important. I think we are all at one in terms of what is required.

On the amendment of the noble Lord, Lord Hodgson, I agree with him completely that it is again providing the means to ensure greater transparency. Certainly, from these Benches, we support his amendment and if he decides to divide the House, we will support him.

[Lord True (Con)]

My Lords, the Elections Bill, let us not forget, will introduce one of the most comprehensive digital imprint regimes operating in the world today and I submit to your Lordships that whatever shortcomings they may feel, or however much further they want to o’erleap the ambitions of the Government, these proposals are about increasing transparency for voters and empowering them to make informed decisions about the material they see online. As the noble Lord, Lord Collins, said, there is much agreement on that point, but we cannot, I fear, support Amendments 58, 60 and 62 in the name of the noble Lord, Lord Clement-Jones, because they do not, in our submission, strike the right balance between increasing transparency and proportionate regulation of campaigning, while Amendments 61 and 65 would be highly difficult to enforce and would risk unduly stifling online campaigning and free speech, although I concede to the noble Lord that this matter will be further debated in the Online Safety Bill.

Regarding Amendment 58, it will not always be practical to display the imprint as part of the digital material itself; for example, as noble Lords have said, in a text-based tweet, where there is a strict character limit. This amendment would not give campaigners the limited, yet crucial, level of flexibility afforded by the Government’s regime and would thus risk unreasonably hampering their ability to campaign on some digital platforms. The above reflects the carefully considered and pragmatic approach we have sought to adopt. I know the noble Lord’s concerns; I appreciated the discussion we had and I understood where he was coming from. The perceived permissiveness of the guidance surrounding the Scottish digital imprints regime, in so far as it created a perceived loophole, was worrying him. I am pleased to confirm on the record here, as I said privately, that our regime will not operate in the same way.

The digital imprint regime that applies at elections in Scotland does not specify requirements regarding the location of the imprint, which is why the Electoral Commission’s guidance in Scotland was not prescriptive in this respect. However, our new regime does provide the necessary specifics on the rules regarding the location of the imprint. Campaigners will be required to ensure that their imprints are displayed as part of the material. Only when this is not reasonably practicable—this touches on my noble friend’s amendment—may the imprint be located elsewhere, but it must still be directly accessible from the campaigning material. Those who do not comply will be committing an offence. Furthermore, the statutory guidance we are proposing as part of our regime will provide practical directions to campaigners on how to follow the rules, including regarding the location of the imprint. This guidance will be subject to parliamentary approval, meaning that parliamentarians will be able to ensure that it provides sufficient clarity for campaigners to comply with the rules. I hope the noble Lord will be reassured by those points.

On Amendment 60, candidates and registered campaigners already have to detail their election spending in their returns and provide invoices for payments over a certain amount, including in relation to digital campaigning. These are then made available for public scrutiny. The Government have explained that this requirement on campaigners to submit more detailed invoices or receipts about digital activity would need to be looked at carefully, as the detail provided is determined by the suppliers themselves, not the recipient. It could therefore prove difficult and burdensome for campaigners to comply with these additional requirements.

Similarly, Amendment 62 would require all campaigners promoting paid political advertising, and not the online platforms, to maintain a library of those advertisements, with specified information, for at least 10 years. I understand where the noble Lord is coming from, but we have explained that in our view this risks adding an unreasonable burden on campaigners, particularly smaller groups that rely on volunteers, or groups that are established only for the lifetime of a particular campaign. It is also not clear that there is a sufficient case for regulation in relation to political advert libraries, given, as the noble Lord acknowledged, that major platforms such as Facebook, Google and YouTube already make available libraries of political advertising that they host.

My response to Amendment 61 will focus on paid-for political advertising, as defined by Clauses 41 and 42, rather than other electronic material, as defined by Clauses 43 and 44, given that other electronic material is relevant only to UK-based entities anyway, with the exception of registered overseas electors who have also registered as third-party campaigners. The Government agree with the principle that there should be strict limitations on ineligible entities overseas spending money campaigning during UK elections, including on digital advertising.

Clause 25 will already remove the scope for any legal spending by foreign or otherwise ineligible third-party campaigners above a £700 de minimis limit. This is a huge reduction, given that those same actors can currently spend up to £20,000 legally during the regulated period in England, or £10,000 in Scotland, Wales or Northern Ireland. Further to this, by requiring an imprint on all paid-for electronic campaigning material, regardless of where in the world it comes from, the digital imprint regime will already greatly improve transparency of political advertising from overseas actors. For any material that is published in breach of the imprint rules, the enforcement authorities are able to require the relevant social media platform to take down the material.

Strict controls on spending and clear transparency about origin are essential. But I cannot agree to a fast-considered and potentially disproportionate blanket ban on all political material from foreign actors within scope of the digital imprint regime. We would need again to examine carefully the implications and practicalities of enforcement and restrictions on freedom of speech to avoid any risk of unintended consequences.

I turn to Amendment 65. The Government remain concerned that this amendment includes no reference to intent and that the proposed new clause, as drafted, could criminalise unintentionally false statements. It could, therefore, be very broadly applied. It could also discourage people from raising any legitimate concerns for fear of a statement being considered false. This offence could potentially provide broad powers to clamp down on anyone who expresses genuine concerns about the process of an election. Overall, we believe that this clause could have unintended but potentially severe implications for freedom of speech.

I reassure the noble Lord that the Government take electoral disinformation and misinformation very seriously, but we believe that these are best addressed through non-legislative measures, such as the counter-disinformation unit to which the noble Lord referred and which was explained during our debate in Committee. Any regulation must be balanced with the need to protect freedom of expression and the legitimate public debate which is crucial to a thriving democracy.

The response on the face of the noble Lord, Lord Clement-Jones, is one of disappointment, but I thank him for his amendments. I hope that I have brought some clarity to the questions raised. I hope he feels able to withdraw Amendment 58, although I acknowledge that he will pursue certain matters on another Bill.

Finally, I turn to Amendment 59, tabled by my noble friend Lord Hodgson. The Government entirely agree that it is right that third-party groups campaigning at elections should be transparent and clearly identifiable. This is why the digital imprints regime will require recognised third-party campaigners to declare who they are when promoting relevant online campaigning material to the public, including but not limited to their websites. Where third-party campaigners use their websites to campaign, as defined by Clause 43, an imprint will be required. Promoters will be required to ensure that the imprint—or access to it—is retained as part of the material, if it is moved on. Where promoters comply with the digital imprint rules by adding an imprint in material displayed on their website, the imprint will be visible for as long as the material is available to the public online and remains in scope of the rules.

I know that my noble friend is not convinced that it is sufficient that third-party campaigners are already publicly listed on the Electoral Commission’s website. We believe that the current rules, supplemented by the new digital imprint rules, will provide increased transparency and identify recognised third parties. There are specific problems about the construction of this amendment, which I have discussed with my noble friend. As currently drafted, the amendment would create a new offence but does not specify a penalty for its commission or any statutory defences against the charge. Further, and I am sure this is entirely inadvertent, the amendment is drafted such that any website owned and operated by a recognised third-party campaigner—for example, a large charity which might have many different websites—would be captured, even if it were unrelated to the campaigning activities for which the third party is registered. It could lead to a disproportionate application of criminal liability. These proposals would need further discussion with third-party campaigners and potential enforcement authorities. Digital regulation is a complex area. Few have thought about it more than either the noble Lord, Lord Clement-Jones, or my noble friend. But these digital imprint provisions were consulted on publicly—twice.

My noble friend is not entirely enamoured of the letter I wrote to him recently to assure him that the Government will continue to keep the transparency of digital campaigning under review. I underline this commitment. I assure my noble friend and the House that I will ask my officials to engage with the Electoral Commission to consider whether my noble friend’s proposal could be included as best practice for third-party campaigners, which the House has agreed to secure, in the commission’s guidance.

With these assurances, I hope that the noble Lord, Lord Clement-Jones, will feel reassured to some degree by the clarifications that I have been able to give and withdraw his amendment.

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[Viscount Stansgate (Lab)]

My Lords, we are nearing the end of this debate on Report. I cannot say that this Elections Bill is one of this Government’s finest constitutional measures. Although it is late in the day, we have just heard from the noble Lord, Lord Stunell, a very clear exposition of some of the questions which have not been answered, and I think it is perfectly fair to ask the Government—even at this late stage on Monday night—to provide some answers.

I find myself sitting here thinking back to the time that John Stonehouse disappeared, which some noble Lords may remember. When he disappeared, it became clear that there was no provision under British electoral law to remove him from his position as a Member of Parliament. Even though he was arrested and imprisoned in Australia, his constituency went unrepresented, because there was no way of getting rid of him. So things that might appear to you to be unlikely, such as those outlined by the noble Lord, Lord Stunell, might still one day actually occur.

The only thing I would add is that, over the Easter Recess, I met a British citizen who left Britain 55 years ago. He has been living in an EU country. I can report to the House that he was astonished to discover that the Government were now planning to give him the vote. He asked me a number of questions, such as “Where would I cast my vote?”—which brings me to the questions mentioned by the noble Lord, Lord Wallace of Saltaire. Some countries, France being one of them, have overseas constituencies. After decades of inaction, the Americans finally made it possible for Republicans and Democrats abroad to vote while living in the UK. I am sorry to say this at such a late stage, but this is an area that has not been as fully thought through as it should have been. That is exactly what this House is here for and I look forward to the Minister’s reply.

[Lord Collins of Highbury (Lab)]

I too thank the noble Lord, Lord Stunell, for his excellent introduction to this amendment. It is worth focusing on the fact that the Minister has, on numerous occasions, stressed the impracticalities of some of the amendments that have been considered today, saying “We can’t do this because it’s impractical”. Yet, without any thought, the electorate can be increased from 1 million to 3.3 million, as we heard from my noble friend earlier, without any infrastructure or effort to manage the implications.

The noble Lord, Lord Wallace, talked about other countries. Other countries have different voting systems, such as list systems and regional systems. But our democracy is fundamentally based not on a party system but on the constituency system, where an individual MP represents the people of that constituency. With what is being proposed, we could suddenly have, as my noble friend said earlier, 7,000 or 8,000 people being allocated to a constituency who, according to the noble Lord, Lord Stunell, have never lived there. And we will not even make any attempt—or there will not be any practical way—to verify people’s entitlement to vote.

In this Bill, we have said that if a resident in a constituency turns up at a polling station but fails to produce photographic evidence of their entitlement, they will not be given the vote. But someone who lives abroad can get a vote in a constituency and be sent it without any proper checks. It is absolutely crazy that the Government are not taking the time to look at the practical implications of this. It comes back to the point: why is it being done? It does not really appear to be being done to defend and enhance our democracy. I know I have said it before, but all this effort is going into people who have left this country, who have never lived here or who have lived here for a very short period of time—we are extending the vote to them—but people who have lived here for 27 years, and paid tax and national insurance, will not be given the vote. It is crazy.

This amendment is absolutely right. It would ensure that the Government pay proper attention to the practical implications of their policy and do so in a timely fashion. It is not as if we are trying to say, “Don’t do this”—even though I agree with my noble friend and would prefer that the Government did not do it. The amendment is saying, “Okay, if you’re going to do it and if it’s a principle you support, do it properly. Understand the consequences, particularly the consequences for our democracy”. This side wholeheartedly supports this amendment.

[Baroness Scott of Bybrook (Con)]

My Lords, I will first answer the questions from the noble Lord, Lord Stunell. I am sorry that he did not get as much information as he needed, but I will have to hold the House a little longer to give him more detail.

On candidature, anyone who wants to be a candidate in an election in this country needs to be a resident of this country and to have proof of residency. So, nobody living abroad can be a resident of this country—that is the first thing.